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Monday, February 28, 2005

Ind. Decisions - Court of Appeals posts eight today

Lisa R. Bigley v. MSD Wayne Township Schools (12/9/04 IndCtApp) [Statutes; Public Procurement] [Initially NFP]
Kirsch, Judge

Lisa R. Bigley, as a taxpayer within the Metropolitan School District of Wayne Township, and for all similarly-situated citizens and taxpayers, brings this appeal alleging that the trial court erred when it denied her motion for a preliminary injunction on the basis that Bigley failed to show a reasonable likelihood of success on the merits. She argues that she has a reasonable likelihood of success on the merits because the bidding process for the construction of a public works project was not open to competition, the Wayne Township School Board (“Board”) improperly determined that the bid of R.L. Turner Corporation (“Turner”) was the lowest responsive bid, and the Board improperly determined that Turner was a responsible bidder, all in violation of statute. We affirm. * * *

We conclude that the trial court’s conclusions are supported by its findings and that its findings are supported by the evidence. The trial court did not err in determining that Bigley failed to show a reasonable likelihood of success on the merits and therefore in denying Bigley’s motion for a preliminary injunction. Affirmed.
BAKER, J., and ROBB, J., concur

Blimpie International, Inc. and Blimpie Pershing Indiana Ventures, Inc. v. Tina Choi and 8TA.Choi Corp. (2/28/05 IndCtApp) [Contracts; Arbitration]
May, Judge
Blimpie International, Inc. and Blimpie Pershing Indiana Ventures, Inc. (collectively “Blimpie”) appeals the denial of its motion to stay proceedings pending arbitration of the action brought by Tina Choi and 8TA.Choi Corporation (collectively “Choi”). Blimpie raises three issues, which we consolidate and restate as whether the trial court properly determined a reference in the franchise agreement to non-waiver of jury trial manifested the parties’ intention that claims arising under the Indiana Franchise Disclosure Law (the “Indiana Act”) would not be resolved by arbitration. We reverse. * * *

The trial court improperly determined claims under the Indiana Act were outside the parties’ arbitration agreement. Accordingly, we reverse the decision of the trial court and instruct the court to enter a stay pending arbitration of Count I of Choi’s claim.
SULLIVAN, J., and VAIDIK, J., concur.
_____
The trial court also noted Blimpie drafted the franchise agreement at issue, and Blimpie asserts the court erred to the extent it accordingly resolved any ambiguity in the agreement against Blimpie. We agree. Under the Federal Arbitration Act, ambiguities in an arbitration clause are to be resolved in favor of arbitration, notwithstanding the rule that a contract is construed most strongly against the drafter. Chan v. Drexel Burnham Lambert, Inc., 223 Cal. Rptr. 838, 842 (Cal. Ct. App 1986). And see Chesterfield Mgmt., Inc. v. Cook, 655 N.E.2d 98, 102 (Ind. Ct. App. 1995) (Indiana recognizes a strong policy favoring enforcement of arbitration agreements, and arbitration agreements will be interpreted in light of that policy), trans. denied.

Scottie Edwards v. State of Indiana (2/28/05 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge
Appellant, Scottie Edwards, challenges the forty-year sentence imposed upon his conviction for Attempted Murder, a Class A felony. See footnote Specifically, Edwards argues: (1) that in sentencing him to an enhanced sentence, the trial court relied upon facts not found by a jury in violation of his Sixth Amendment right under Blakely v. Washington, 124 S.Ct. 2531 (2004), and (2) that his sentence is inappropriate. We reverse and remand. * * *

Thus, the facts of planning and preparation are not necessarily “reflected in the jury verdict.” Under Blakely, the trial court could not itself make the finding of “planning and preparation” and then rely upon such in sentencing Edwards to an enhanced term of imprisonment. Such is a violation of Edwards’s Sixth Amendment right to trial by jury. See Aguilar v. State, 820 N.E.2d 762 (Ind. Ct. App. 2005).

While it was error for the court to consider additional facts not inherent within the jury’s verdict in sentencing Edwards, a sentence may still be upheld if there are other valid aggravating factors from which we can discern that the trial court would have imposed the same sentence. See Holden v. State, 815 N.E.2d 1049, 1060 (Ind. Ct. App. 2004), trans. denied; Powell v. State, 751 N.E.2d 311, 317 (Ind. Ct. App. 2001).

Here, we cannot say that reconsideration by the trial court without regard to the circumstances of the crime as an aggravating factor would result in the same outcome. In its sentencing statement, the trial court made clear that “[p]robably the most significant aggravating factor” was the circumstances of the offense—specifically referring to Edwards’s planning and preparation. Further, as to the remaining aggravators, we note that Edwards’s criminal history consists of only one unrelated misdemeanor battery conviction in 1996 and thus of minimal significance. With regard to the court’s finding that Edwards was in need of correctional rehabilitation which can only be provided by a penal facility or the Department of Correction, we observe that such was merely a rote recitation of the statutory aggravating factor. The trial court did not explain why the circumstance was aggravating and did not seem to afford it much weight. Given the foregoing, we must reverse Edwards’s forty-year sentence and remand to the trial court with instructions to either convene a jury for sentencing purposes or impose the presumptive sentence of thirty years for Edwards’s attempted murder conviction.

The judgment of the trial court is reversed and the cause is remanded with instructions.
NAJAM, J., concurs.

BARNES, J., dissents with opinion. I respectfully dissent. The majority here concludes that Blakely v. Washington impacts Indiana’s sentencing scheme and, therefore, a jury rather than a judge must find any “fact” other than criminal history that warrants an increase in a defendant’s sentence above the statutory presumptive. Indeed, in the months following the Blakely decision, every judge of this court who considered the issue, myself included, readily concluded that Blakely did impact Indiana’s sentencing scheme. The broad language used in the Blakely majority opinion seemed to leave little choice. * * * Because Indiana trial judges are only permitted to impose a presumptive sentence following a judgment of conviction unless they specifically “find” aggravating circumstances, it was widely believed by members of this court that Blakely invalidated sentences where a judge enhanced a sentence based on aggravating circumstances, other than criminal history, that relied upon judicial “fact-finding.” * * *

Now, the Supreme Court has decided United States v. Booker. -- U.S. --, 125 S. Ct. 738 (2005). In my view, Booker requires a significant reconsideration of our earlier holdings regarding Blakely’s impact in Indiana. It contains an important clarification and limitation on Blakely’s holding, agreed upon by all nine justices, that was not apparent in Blakely itself. * * *

I conclude, pursuant to Booker’s clarifications, that Blakely does not impact Indiana’s sentencing scheme. Simply put, Indiana’s sentencing scheme now somewhat resembles the Federal Sentencing Guidelines as reshaped by the Supreme Court, albeit that the Federal rules are much more explicit and precise as to what sentence ought to be imposed in response to particular facts. * * *

In other words, while Indiana’s sentencing scheme does not allow judges to increase a sentence above the presumptive unless they have found at least one aggravating circumstance, which seemed to run afoul of Blakely, neither does the scheme mandate judges to increase a sentence if they find aggravating circumstances, which makes the scheme constitutional under Booker. * * *

[In a footnote, Judge Barnes writes: "I am in full agreement with Judge Robb’s concurring opinion in Abney v. State, (Ind. Ct. App. Feb. 15, 2005)." Access the ILB summary of that case here, labeled "Court of Appeals posts four today, including one fascinating concurring opinion based on Blakely/Booker."]

"Sentence Overturned in Star Columnist Stabbing" is the headline to a brief story on this ruling today on the WISH-TV 8 website. The Indianapolis Star also has posted a story, titled "Sentence overturned in stabbing case." Both are based on an AP story and state: "The decision was the latest in a series of reversals in Indiana and across the nation resulting from a U.S. Supreme Court ruling last June that juries -- not judges -- should consider factors that can add years to defendants' prison sentences."

Amerisure v. Wurster Construction (2/28/05 IndCtApp) [Rehearing]
Ratliff, Senior Judge

Wurster Construction Co., Inc. petitions for rehearing in Amerisure, Inc. v. Wurster Construction Co., Inc., 818 N.E.2d 998 (Ind. Ct. App. 2004), challenging the language of the Court’s opinion. We grant Wurster’s petition for the sole purpose of clarification, and we affirm our original opinion. * * * This Court’s decision in Amerisure, Inc. v. Wurster Construction Co., Inc. was not intended as a final adjudication of the facts regarding the alleged defects in the Dens-glas and EIF systems and was in no way intended to foreclose any factual issues in the underlying dispute regarding the damage of these systems. Therefore, we grant Wurster’s Petition for Rehearing for the sole purpose of clarifying this issue and in all other respects affirm the Amerisure opinion.
KIRSCH, C.J., and CRONE, J., concur.
Larry Kirby v. State of Indiana (2/28/05 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge
* * * Kirby raises one issue on appeal, which we restate as whether the post-conviction court erred by determining that his claims were barred by the doctrine of laches. * * *

From his repeated contacts with the criminal justice system, the trial court could have reasonably inferred that Kirby enjoyed access to the law library and, thus, could have learned about post-conviction remedies. Kirby’s twenty-eight-year delay in filing the petition for post-conviction relief, coupled with his presumed knowledge of the criminal justice system, is sufficient for the trial court to infer that the delay in dispute was unreasonable. See, e.g., Mahone v. State, 742 N.E.2d 982, 985 (Ind. Ct. App. 2001) (noting that, although lapse of time does not by itself constitute laches, a long delay in filing for post-conviction relief may be sufficient to infer that the delay was unreasonable), reh’g denied.

Turning now to the prejudice prong of the laches analysis, the evidence reveals that, at the time of Kirby’s petition for post-conviction relief, the State’s files for the applicable offenses, including photographs and other tangible evidence, had been destroyed. The evidence also demonstrates that the State was unable to locate all the victims of Kirby’s offenses and was unaware of their present addresses. This evidence is sufficient to show that, because of Kirby’s lengthy delay in filing his petition for post-conviction relief, the State was unable to reconstruct its case against Kirby and has, thus, suffered prejudice. As such, the post-conviction court did not err by denying Kirby’s petition for post-conviction relief on the basis of laches.
For the foregoing reasons, we affirm the post-conviction court’s denial of Kirby’s petition for post-conviction relief. Affirmed.
SULLIVAN, J., and MATHIAS, J., concur.


David Whitezel v. Judith Burosh and The Estate of Vincent Burosh
(2/28/05 IndCtApp) [Trusts and Estates]
May, Judge
David Whitezel brings an interlocutory appeal of the trial court’s removal of Whitezel as trustee of the Burosh Living Trust. Whitezel raises one issue, which we restate as whether the trial court’s decision to remove Whitezel as trustee was clearly erroneous. We dismiss for lack of jurisdiction. * * *

Unlike the situation in Koch, none of the corpus in the Burosh Living Trust is being sold. Rather, the substance of the Trust is remaining in the Trust. The court is simply ordering a new trustee take over management of the Trust. Theoretically that order could be reversed on final judgment from Judith’s complaint and Whitezel’s counter-complaint, as the court could at that time order Whitezel reinstated as the trustee without serious legal or financial ramifications. Cf. id. This appeal was not permitted under App. R. 14(A)(3), see Hogan, 582 N.E.2d at 825, and we must dismiss for lack of jurisdiction. See Bayless, 580 N.E.2d at 966. Dismissed.
SHARPNACK, J., and BAILEY, J., concur.

Travis J. Carroll v. State of Indiana (2/28/05 IndCtApp) [Criminal Law & Procedure]
Friedlander, Judge
Travis J. Carroll brings an interlocutory appeal of the trial court’s denial of his motion to suppress. He presents the following restated issue for review: Was the warrantless search of his person proper when he was being detained while officers executed a search warrant on his residence? We affirm. * * *
SHARPNACK, J., and BAKER, J., concur.
Billy Joe Branum v. State of Indiana (2/28/05 IndCtApp) [Family Law; Contempt Sentence]
Najam, Judge
Billy Joe Branum appeals from the trial court’s order finding him in contempt for failure to pay child support. He presents several issues on appeal, which we consolidate and restate as: [1] Whether the trial court erred when it did not advise him of his right to counsel at the contempt hearing. [2] Whether the State presented sufficient evidence to support the contempt finding. [3] Whether the trial court erred when it sentenced him. * * *

Branum next contends that the trial court erred when it did not condition his release from jail on compliance with the child support order. The State maintains that the lack of such a provision is not grounds for reversal. Because we remand for a new hearing, we address this issue, as it is likely to recur. Our supreme court has held that:

The primary objective of a civil contempt proceeding is not to punish the defendant, but rather to coerce action for the benefit of the aggrieved party. Punishment in the form of imprisonment or a fine levied against the defendant, which goes to the State and not to the injured party, is characteristic of a criminal proceeding. In a civil contempt action the fine is to be paid to the aggrieved party, and imprisonment is for the purpose of coercing compliance with the order. * * *
Here, as in Emery, it is unclear from the sentencing statement whether Branum’s incarceration was intended to be punitive or coercive in nature. The trial court did not include an express provision whereby Branum’s release was conditioned upon his compliance with the child support order. See Hunter v. State, 802 N.E.2d 480, 484 (Ind. Ct. App. 2004). Because we are remanding for a new hearing, if the trial court should find Branum in contempt and impose a sentence, we instruct the court to specify that Branum can obtain his release from incarceration upon complying with the child support order. See Emery, 788 N.E.2d at 860-61 (holding only permissible sentence is coercive in nature). Reversed and remanded with instructions.
KIRSCH, C.J., and VAIDIK, J., concur.

Posted by Marcia Oddi on Monday, February 28, 2005
Posted to Ind. App.Ct. Decisions

Law - More on access to Great Lake's beaches

The South Bend Tribune today is carrying an AP story headlined "Alcona County woman pushes for life, liberty, walk on beach: Cherished tradition sparks battle over Great Lakes shoreline access." Some quotes:

The Michigan Supreme Court hears oral arguments March 8 in the case, which is drawing attention from groups representing property owners, businesses, environmentalists and outdoor enthusiasts. The outcome could affect not only beach walking, but the balance of power between riparian landowners and government regulators on shoreline environmental issues.

"What's at stake is losing control of our beach," said Ernie Krygier, president of Save Our Shoreline. The property rights advocacy organization has tangled with state officials over landowners' authority to clear beach vegetation.

Keith Schneider, deputy director of the Michigan Land Use Institute, said a ruling in SOS' favor would continue a trend in the state courts of "stripping the public of its rights and conferring them to a group of generally wealthy private property owners."

The debate has spread to other Great Lakes states. A property rights group in Ohio filed suit last year over Lake Erie beachfront ownership.

Glass, 73, lives in rural Alcona County, on the other side of U.S. 23 from Lake Huron. The deed to her land, purchased in 1967, includes an easement allowing her family to walk along one edge of a waterfront lot across the road to reach the lakeshore.

Glass says Richard Goeckel bought the property containing the easement in 1997 and began "harassing" her family as they made their way to the lake. She filed a lawsuit, which eventually was broadened to deal with not only the 15-foot-wide easement corridor, but a swath of the beach itself. Glass contended she had a right to be there; Goeckel said she was trespassing.

"This isn't just about me any more," Glass says. "It's become a whole issue of who can or cannot use the lake."

Scott Strattard, an attorney representing Goeckel, said his client was unhappy with Glass for trimming shrubbery along the easement path and felt she treated the beach as though she owned it as much as he did.

In part, the clash was triggered by a sharp decline in Great Lakes water levels in the late 1990s. The dropoff exposed sometimes wide areas of previously submerged bottomlands, raising the question of who owned them. Courts have dealt with the issue over the years as water levels fluctuated, but disagreement persists.

All sides agree that waterfront, or riparian, property includes everything above the ordinary high water mark. But Goeckel contends riparian property extends to the water's edge, and includes exposed land below the high water mark.

SOS and business groups including the Michigan Chamber of Commerce, which have filed briefs in the case, support him.

Glass believes land below the high water mark belongs to the state and is open to everyone under the public trust doctrine, a position supported in briefs from several environmental groups including the Land Use Institute.

An Alcona County judge sided with Glass but was overruled last year by the Michigan Court of Appeals, whose written opinion drew criticism from both sides.

The appeals court said the state owns land below the high water mark, but owners of adjacent riparian property -- in this case the Goeckels -- have exclusive use of it and can kick others out. * * *

The state of Michigan will file a brief in the case next week, said Skip Pruss, deputy director of the Department of Environmental Quality. It will argue that the public trust doctrine and long-standing custom grant citizens a right to walk on bottomlands near the water's edge -- but not to treat them like a public park.

"Volleyball, sunbathing, camping out or partying on riparian property is farther than we think is appropriate to go," he said.

Glass says trashing the beach is the last thing on her mind.

"I just don't want to lose my right to walk over to the beach and sit," she said. "I never had any problem for years, but all it takes is one person to mess things up for everybody."

For background and links to Michigan's 5/13/04 appellate court ruling in Glass v. Goeckel, go to this Sept. 14, 2004 ILB entry. A Chicago Tribune story cited includes this statement: "Indiana allows public access up to the ordinary high-water mark of Lake Michigan."

[Thanks to BigEastern.com for the pointer.]

Posted by Marcia Oddi on Monday, February 28, 2005
Posted to General Law Related

Law - Bush's Next Target: Malpractice Lawyers

"Bush's Next Target: Malpractice Lawyers" was the headline to a more than full-page article beginning on the front page of the Business Section of the Sunday NY Times. Truly much too long to attempt to summarize.

Posted by Marcia Oddi on Monday, February 28, 2005
Posted to General Law Related

Ind. Gov't. - More on the inspector general bill

Martin DeAgostino of the South Bend Tribune has a story today on the inspector general bill, headlined "Inspector general bill sparks debate: Former top judge says measure is flawed but fixable." Some quotes:

A state prosecutor who works directly for the governor poses legal and policy problems that lawmakers should fix before they create an office of inspector general, according to a former chief judge of the Indiana Court of Appeals.

Sanford M. Brook said the proposed legislation, which Gov. Mitch Daniels is pushing hard, does not appear to be unconstitutional on its face, as some Democrats have claimed. But he said it includes several "problematic" features that could spark legal challenges and raise questions about political motivations.

"The spirit of such a thing is good," he said. "I'm not so sure this is the vehicle."

The bill assigns a key role to the chief judge of the appeals court, a post Brook held from 2002 until he resigned to return to private practice in 2004. The former St. Joseph Superior Court judge now works for a legal arbitration firm in Denver, and he reviewed the bill at The Tribune's request.

In essence, Brook said it blurs executive and judicial authority, it lacks sufficient checks and balances, and it feeds perceptions that governors could use it for politically motivated investigations and prosecutions.But he said none of those problems are insurmountable if even modest amendments occur. "They can easily all be remedied and maintain the spirit of the legislation," Brook said. * * *

[The bill "creates an office of inspector general with broad powers to investigate mismanagement, waste and civil or criminal violations of law within state government. And it outlines circumstances and procedures under which the inspector general could act as prosecutor, with authority from the governor and the Appeals Court."]

"It creates too much power in one person, going into the other branch (of government)," House Minority Leader B. Patrick Bauer, D-South Bend, said.

Brook tends to agree, noting the bill's requirement that the inspector general report all findings to the governor.

"Presumably," he said, "corruption could extend to the governor's office. And the system of checks and balances loses its objectivity if a report to the governor's office is required." * * *

Jason Barclay, special counsel and policy director for Daniels, said the legislation pulls together fragments of Indiana law, including its special prosecutor statute, and resembles similar measures in 11 states.

Although no state gives direct prosecutorial powers to its inspector general, Barclay said most can serve as special prosecutors under separate legislation.

He also said the proposal balances power in several ways, including an early role for county prosecutors whenever an investigation yields a formal report. Similarly, no governor could directly order a prosecution under the bill, but only authorize the inspector general to approach the Appeals Court for that authority.

But critics say that puts the governor in a gatekeeper role involving his own administration, as the governor could also block the inspector general from moving forward.

They also note that in civil cases, the inspector general can override a no-charge decision by the state attorney general, who is chosen by voters as the state's chief law enforcement office.

Brook suggested an amendment to bypass the governor's role entirely, which would put prosecutorial decisions solely in the hands of the inspector general and Appeals Court. But Barclay dismissed the suggestion as unnecessary and imprudent. "The governor's an additional check here" on the inspector general's activities, he said. * * *

County prosecutors and their lobbying arm opposed the bill as filed, which gave the governor direct authority to authorize prosecutions by the inspector general.

But negotiations created a role for the Appeals Court and added other minor changes, and the Association of Indiana Prosecuting Attorneys now supports the bill.

Stephen J. Johnson, who bargained with the administration on the association's behalf, said prosecutors see real benefits in the bill's general drift.

He said one significant benefit is that the inspector general would investigate and prepare a case before referring it to county prosecutors, who may lack expertise in state ethics and anti-corruption laws.

"It's a new concept, there's no question about that," Johnson said, "and it's hard to get your arms around. But I do think there are potential benefits for prosecutors in the investigative work that can be done at the state level."

Brook, who expressed the highest confidence in Johnson's views, said the bill still could benefit from changes. He suggested more independence for the inspector general, including a fixed term of office and more control of the office budget.

But he said the legislative process is strong enough to correct imbalances and weaknesses in the bill, which already includes some important limits on the inspector general's power.

He noted one in particular, which requires an inspector general to obtain a grand jury indictment before filing criminal charges. "It's an excellent limitation," he said. "It's an excellent check."

A reader has pointed out to me that the Judicial Article of the Indiana Constitution includes the state's prosecuting attorneys. Article 7, Sec. 13:
Section 13. Removal of Circuit Court Judges and Prosecuting Attorneys. Any Judge of the Circuit Court or Prosecuting Attorney, who shall have been convicted of corruption or other high crime, may, on information in the name of the State, be removed from office by the Supreme Court, or in such other manner as may be prescribed by law.
(History: As Amended November 3, 1970).
Article 7, section 18:
Section 16. Prosecuting Attorneys. There shall be elected in each judicial circuit by the voters thereof a prosecuting attorney, who shall have been admitted to the practice of law in this State before his election, who shall hold his office for four years, and whose term of office shall begin on the first day of January next succeeding his election. The election of prosecuting attorneys under this section shall be held at the time of holding the general election in the year 1974 and each four years thereafter.
(History: As Amended November 3, 1970).
I'm checking to see whether these provisions were in the 1851 version.

[More - revised] The answer is yes, the prosecuting attorney was included in the original Article 7 of the 1851 Constitution. Sections 11 and 12 read:

Section 11. There shall be elected, in each judicial circuit, by the voters thereof, a Prosecuting Attorney, who shall hold his office for two years.

Section 12. Any Judge, or Prosecuting Attorney, who shall have been convicted of corruption or other high crime, may, on information in the name of the State, be removed from office by the Supreme Court, or in such other manner as may be prescribed by law.

The Prosecuting Attorney was not included in the Judicial Article (Article 5) of the 1816 Constitution.

Posted by Marcia Oddi on Monday, February 28, 2005
Posted to Indiana Government

Environment - Anti-Sprawl Laws, Property Rights Collide in Oregon

"Anti-Sprawl Laws, Property Rights Collide in Oregon" is the headline to an interesting story today in the Washington Post. Some quotes:

HOOD RIVER, Ore. -- The nation's strongest laws against sprawl are beginning to buckle here in Oregon under pressure from an even stronger, voter-approved law that trumps growth restrictions with property rights.

In a collision between two radically different visions of how cities should grow, claims under Oregon's new law are pitting neighbor against neighbor, rattling real estate values, unnerving bankers and spooking politicians.

The property-rights law, which was approved overwhelmingly by voters last fall and is known as Measure 37, is on the brink of wrecking Oregon's best-in-the-nation record of reining in sprawl, according to state officials and national planning experts. They say the new law illustrates a nationwide paradox in public opinion: Although voters tend to favor protection of farmland and open space, they vote down these protections if they perceive them as restrictions on personal rights.

"Measure 37 blew up our land-use system," state Sen. Charlie Ringo, a Democrat from suburban Portland, declared while presiding over a tense, standing-room-only hearing on the law that was held recently here in Hood River, a resort town in the Columbia River Gorge.

The law compels the government to pay cash to longtime property owners when land-use restrictions reduce the value of their property -- or, if the government can't pay, to allow owners to develop their land as they see fit. Because there is virtually no local or state money to pay landowners, Measure 37 is starting to unravel smart-growth laws that have defined living patterns, set land prices and protected open space in this state for more than three decades.

Although the unraveling is being watched with alarm by smart-growth advocates across the country, it is exactly what local backers of the new law say they want as recompense for what they describe as years of arbitrary bossiness in the enforcement of land-use restrictions. Smart-growth laws attempt to direct development to areas served by existing roads and utilities and curtail new housing and business construction that will sprawl out to rural areas.

Still available is the Post's three-part series from last August on the problem of spreading sprawl.

Posted by Marcia Oddi on Monday, February 28, 2005
Posted to Environment

Ind. Courts - Marion County judges selection bill, formerly snarled, now dead

It seems long ago, but it was only Feb. 16th, that we reported "Marion County judges selection bill snarled." HB 1703's committee report was not accepted by the full house, and instead was replaced with a "minority report." Read the details here. The future was dim.

Now, apparently, the future is over. "Bill to appoint county judges dies: Lawmaker abandons measure in an attempt to gain votes for change to daylight-saving time," is the headline to a story today in the Indianapolis Star by Mary Beth Schneider. Some quotes:

State Rep. Michael Murphy said he's dropping a controversial plan to let the governor appoint Marion County judges to help the chances of an even more controversial bill -- daylight-saving time.

That issue, a key part of Gov. Mitch Daniels' economic development agenda, is set for a vote either today or Tuesday in the Indiana House.

Last week, House Bill 1034 -- putting all of Indiana on daylight-saving time -- didn't have the 51 votes needed to pass. With some of the 52 Republicans planning to oppose the time switch, supporters are scavenging for Democratic votes.

Eliminating Murphy's bill, which took away Marion County voters' power to choose their county's judges, should eliminate at least one hurdle.

"Daylight-saving time is too important for the judges bill to get in the way," said Murphy, R-Indianapolis.

Posted by Marcia Oddi on Monday, February 28, 2005
Posted to Indiana Courts

Ind. Gov't. - Lobbying draws scrutiny, new approach is to form not-for-profit and hire legislator

Michele McNeil has a story in today's Indianapolis Star headlined: "Lobbying draws scrutiny: Charities are being used to gain access, donate to lawmakers, watchdog groups say." Some quotes:

A gambling company that would gain millions if the legislature legalizes slot machines at horse tracks is directing money to two lawmakers in a way that critics say exposes flaws in the system.

Centaur Inc., which owns part of Hoosier Park in Anderson, hired a state senator -- during a golf outing -- to help promote its Colorado casino. Centaur's chairman also has started a charity with his company's money and hired a state representative to serve as president and chief executive officer at an annual salary of $68,000.

Gambling companies are forbidden by state law from giving money to lawmakers' political campaigns.

"This is clearly a way for the gambling interests to help out the officeholder," said Larry Noble, executive director of the Washington, D.C.-based Center for Responsive Politics, which tracks campaign donations. "They do it for access. They do it because it makes the officeholder happy. It raises a real conflict issue."

Both lawmakers say they oppose expanding gambling, at least beyond existing horse tracks and riverboats, and said their relationship with Centaur is not influencing their vote on the controversial issue. * * *

[Rep. David Frizzell, R-Indianapolis, who runs the Third Millennium Foundation and] who is the GOP's majority whip, said he will abstain from any votes related to the horse tracks. He's sponsoring a bill that would enact a one-year cooling-off period before lawmakers could become lobbyists.

Sen. Jeff Drozda, R-Westfield, whose marketing firm does business with Centaur, said he would ask for a ruling from the Senate's legislative ethics committee on whether he should recuse himself from voting. Drozda, who unseated a longtime incumbent to get his seat in 2002, is considered an up-and-coming leader in his caucus. * * *

The company was the top lobbyist during the 2004 legislative session and in the months leading up to this year's session. The company reported spending $389,666 to influence lawmakers last year, which doesn't include the amount directed to the two legislators.

A reader points out that Third Millennium has "spent $160,000 so far to administer $10,000 [$10,800] in grants ..." Sure enough, that is what the Star's sidebar explains:
In 2004, according to Internal Revenue Service filings, the charity spent $160,000. Expenses such as rent, fund-raising costs, cell-phone service and computer equipment amounted to $81,200. Frizzell's salary was $68,000, and $10,800 went to grants. The charity has budgeted to give away $29,800 in grants in each of the next two years, hold expenses steady, pay Frizzell $76,000 as CEO and pay the five directors $1,000 each per year.
Another sidebar of interest points out that "The gambling company Centaur Inc., based in Downtown Indianapolis, spent more than any other lobbying group to influence state lawmakers in 2004." The sidebar also lists "Others in the top 10 and the amount each spent." Worth a look.

Posted by Marcia Oddi on Monday, February 28, 2005
Posted to Indiana Government

Sunday, February 27, 2005

Ind. Gov't. - Where are the Economic Development Corp. members?

"Where are the Economic Development Corp. members?" asks the Fort Wayne Journal Gazette in an editorial today. Some quotes:

With a shove from Gov. Mitch Daniels, lawmakers worked with unprecedented speed to pass legislation this year establishing the structure of the Indiana Economic Development Corp.

And yet, a little more than two weeks after the bill [the 205 pp. HEA 1003, although much of its length is in changing references from "Dept. of Commerce" in various laws] was signed Feb. 9, Daniels has yet to appoint the 11 crucial – and extremely powerful – board members.

He urged the legislature to move quickly on his top priority bill and it did, with the House hearing the measure on its first day and the Senate forgoing its usual schedule to hear the House bill well in advance of the midsession break.

Then the House concurred on the changes Feb. 7 meaning it took just over a month to get the bill to him. At the bill-signing, Daniels said the members were “pretty well defined” and would be announced the next week.

That week came and went, and then on Feb. 18 Daniels told reporters he had just received the last confirmation and hoped to make the announcement Feb. 21. He also said he was pleased with the political and geographic diversity of the group.

Since then, another week has gone by without any appointments to the board he wanted up and running as soon as possible to engineer the state’s economic comeback. Daniels told reporters again Friday that the list is compiled.

“It’s really just a matter of what date to announce them,” he said. “We want these people generating leads for new businesses.”

Here is the language, now law, relating to the appointment of the 11 board members. The new Article, IC 5-28, begins on page 40 of the pdf version of the Enrolled Act.
Chapter 4. Corporation Board

Sec. 1. The corporation shall be governed by a board.

Sec. 2. (a) The board is composed of the following twelve (12)
members, none of whom may be members of the general assembly:

(1) The governor.
(2) Eleven (11) individuals appointed by the governor.
The individuals appointed under subdivision (2) must be employed
in or retired from the private or nonprofit sector or academia.
(b) When making appointments under subsection (a)(2), the
governor shall appoint the following:
(1) At least five (5) members belonging to the same political
party as the governor.
(2) At least three (3) members who belong to a major political
party (as defined in IC 3-5-2-30) other than the party of which
the governor is a member.
Sec. 3. (a) The term of office of an appointed member of the
board is four (4) years.
(b) Each member holds office for the term of appointment and
continues to serve after expiration of the appointment until a
successor is appointed and qualified. A member is eligible for
reappointment.
(c) Members of the board appointed under section 2(a)(2) of this
chapter serve at the pleasure of the governor.

Sec. 4. The governor shall serve as chairperson of the board. * * *

Posted by Marcia Oddi on Sunday, February 27, 2005
Posted to Indiana Government

Law - Illinois Legislator calls move `legal kickback' bid

An interesting story in the Chicago Tribune today is headlined: "State wants vendor incentives: Legislator calls move `legal kickback' bid." Some quotes:

Governments are supposed to buy supplies and services by soliciting bids for the best value, but the administration of Gov. Rod Blagojevich is trying a new wrinkle by asking prospective vendors also to kick in some upfront cash to help the struggling state treasury.

Details of the unorthodox approach are buried in a recent solicitation for bidders for a new three-year, multimillion-dollar contract to provide the state with tape dispensers, paper clips and other office supplies. The request also asks prospective vendors to spice their bids with cash "incentives" to help reduce the state's budget deficit.

Officials of the state's purchasing agency say they are testing the concept on the office supply contract and may extend it to a wide range of other contracts. They said Connecticut, Florida and Pennsylvania have adopted similar tactics, but procurement officials in those states deny it.

Critics contend the request for upfront payments represents a fundamental change in the way the state contracts with vendors, a process historically guided by the principle that government should seek goods and services at the lowest possible price to taxpayers.

They argue that the provision effectively pre-empts small and medium-sized businesses with little available cash from bidding on the contract. They also say that vendors will simply pad bids to cover the cost of the incentives, resulting in higher prices for goods.

Administration officials insist competition for state business will keep prices low, but they also say that is secondary to the need to develop quick new revenue sources to help the state manage its cash crisis. And they say the office supply contract is so big that small firms would have trouble fulfilling it.

Posted by Marcia Oddi on Sunday, February 27, 2005
Posted to General Law Related

Ind. Gov't. - What the Indiana Dept. of Environmental Management Does

According to the Richmond Palladium-Item, "This is the second in a 12-part series looking at how state government affects you." I missed the first.

The headline: "Agency looks to protect Hoosiers' health: Environmental watchdog group plays necessary, sometimes unpopular, role." The reporter: Rebecca Helmes. Some quotes from the lengthy piece:

Steve Higinbotham, executive director of the Wayne County Planning and Zoning Department, said communities sometimes must turn to state agencies for guidance in making or interpreting rules when local regulations don't address specific circumstances.

Right now, Wayne County officials are trying to figure out what kind of zoning regulations to make for confined feedlots. Confined feedlots (also known as concentrated animal feed operations) are pieces of land with an extremely large number of animals penned in a comparatively small space. Manure from the animals is sometimes pumped to a liquid manure lagoon on the property, and those are regulated by IDEM.

"If you have no local guidelines, it pretty much leaves it up to IDEM to do," Higinbotham said.

IDEM has been called in on many projects around the county, including the Carpenter building and the old Perfect Circle plant in Hagerstown.

"IDEM is such a large agency, I think it's difficult to deal with," Higinbotham said. He cited the Carpenter saga as exhibit A.

IDEM Commissioner Thomas Easterly said he is trying to make the agency clear, predictable and speedy.

"I'm going to try to go back to basics," Easterly said.

He said he would like people or organizations to come to IDEM with their situation and, after reviewing it with IDEM officials, be able to leave with a reasonable expectation of when action will be taken to resolve it.

Posted by Marcia Oddi on Sunday, February 27, 2005
Posted to Environment | Indiana Government

Ind. Gov't. - More than 20 contractors volunteer to help with renovations called for at governor's residence.

John Tuohy of the Indianapolis Star has a great lead today in this story about an apparent resolution of the Governor's residence issues:

In what might be called "Extreme Home Makeover" meets "This Old House," Gov. Mitch Daniels has recruited an army of volunteers to make the more than $2 million in repairs to the historic governor's residence in the Butler-Tarkington neighborhood.

Daniels, who has so far resisted moving into the residence at 4750 N. Meridian St., also disclosed Saturday that he would spend his first night there this week.

But it is unlikely he'll settle there full time.

"I'll stay here from time to time," Daniels said.

Daniels said more than 20 contractors have volunteered to make repairs to the building, which was built in the 1920s and was bought by the state in 1973.

The volunteers, combined with financial donations from residents, will free taxpayers from picking up any of the cost, Daniels said.

An estimated $2.6 million in repairs and redecorating are needed at the mansion. Daniels didn't know how much of that the volunteers would get done but estimated the work would be worth "hundreds of thousands of dollars."

He said he and his wife, Cheri, would make the first donations.

Posted by Marcia Oddi on Sunday, February 27, 2005
Posted to Indiana Government

Law - Driving without shame: Ohio's scarlet letter

The full headline to the story in the Cincinnati Enquirer today is: "Driving without shame: Ohio's scarlet letter - Special tags rarely used after DUI convictions." Some quotes from the beginning of the lengthy sotry:

More than 8,300 motorists won a dubious distinction on Ohio roads last year: They were ordered to affix bright yellow-and-red license plates to their cars, branding them drunken drivers.

The plates - called "scarlet-letter" tags for their power to publicly shame lawbreakers - are required punishment for repeat drunken drivers and some first offenders in Ohio. The tags are supposed to act as deterrents, keeping drunks off the road and reducing more than 400 alcohol-related road deaths in the state each year.

But the law doesn't always work the way it was meant to.

A year after Ohio started requiring the special tags, a sampling of more than 300 local cases and interviews with lawyers, judges, police officers and legislators indicate that the law is unevenly administered, enforced and monitored.

Posted by Marcia Oddi on Sunday, February 27, 2005
Posted to General Law Related

Ind. Law - Da VINCI lode? Sketches, notes in margin of rare manuscript in Evansville basement may be million-dollar find

Maureen Hayden of the Evansville Courier& Press has a fascinating feature today involving rare manuscripts, including a book thought to have once been in Leonardo da Vinci’s personal library, bearing marginal notes some attribute to Da Vinci. Two Evansville attorneys figure in the story.

Posted by Marcia Oddi on Sunday, February 27, 2005
Posted to Indiana Law

Ind. Law - Death row decisions could keep Daniels busy

Maureen Hayden of the Evansville Courier& Press has a story today headlined "Death row decisions could keep Daniels busy." Some quotes:

[E]ight of the 34 inmates on Indiana's death row could be executed this year, beginning March 10 with the execution of Donald Ray Wallace Jr. of Evansville. Wallace's appeals process was exhausted late last year, after 23 years on death row. But seven more death row inmates are now at or very near the final stages of their legal appeals, and unless the courts rule in their favor in coming months, execution orders are expected to be forthcoming, according to Paula Sites at the Indiana Public Defender's Council.

"The bottleneck of cases is breaking,'' said Sites. There were only two executions in Indiana last year, one in 2003, none in 2002, two in 2001 and none in 2000. The highest number of executions in Indiana in recent years was in 1949, when three death row inmates were executed, according to the Indiana Department of Corrections. The Indiana Supreme Court issued the execution order for Wallace in January. An execution order for a second death row inmate is expected to be issued early this week. More are likely to follow in coming months, presenting Daniels and the Indiana Parole Board with the potential for what may be an unprecedented number of clemency requests.

Posted by Marcia Oddi on Sunday, February 27, 2005
Posted to Indiana Government | Indiana Law

Saturday, February 26, 2005

Ind. Decisions - 7th Circuit posts two, late on Friday afternoon

Apparently these were posted long after the normal time on Friday, so I missed them. I felt bad until I checked and found that Findlaw missed them too (and still doesn't have them). But Doug Berman of Sentencing Law Blog picked right up on the Paladino decision - in an entry he titled "7th Circuit speaks on plain error (and follows Crosby)."

Both Friday's decision in Paladino and its decision in U.S. v. Lee involve the plain error rule ("In order to show plain error the defendant must establish, among other things, that the error 'affected substantial rights' — which is to say that it made the defendant worse off.") and should be reviewed by anyone following the impact of Booker.

USA v. Lee, Marcus (ND Ill.) [5 pp.]

USA v. Paladino, Robert D. (ND Ill.) [28 pp.]

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

Law - PBS Newshour story on identity theft

The PBS Newshour with Jim Lehrer had a good feaure Thurday evening on identity theft, featuring the theft from ChoicePoint of information on some 145,000 people nationwide. I found there was a lot I didn't know about companies like ChoicePloint.

You can read, listen to, or watch the Newshour segment here.

Posted by Marcia Oddi on Saturday, February 26, 2005
Posted to General Law Related

Ind. Courts - Judge Pro Temp named to Wayne Circuit Court

Updating our entry from Feb. 21st, titled "Retired judge remains on bench without replacement," the Richmond Paladium-Item reports today:

Wayne Circuit Court Judge Douglas VanMiddlesworth can begin enjoying his retirement on Tuesday.

Gov. Mitch Daniels has yet to name his permanent replacement, but the Supreme Court of Indiana is sending in a substitute so VanMiddleworth can relax a little.

Judge Gary K. McCarty has been named judge pro tempore for Wayne Circuit Court effective Tuesday. McCarty was a three-time Union County Circuit Court judge.

VanMiddlesworth has been serving in a pro tempore capacity since Feb. 1 when his retirement officially began, but he had told the Supreme Court he had "plans" beginning in March.

The Supreme Court is responsible for seeing that all the state's courts are properly staffed during vacancies. The governor is responsible for naming replacements.

Judge McCarty is a "senior judge," a status maintained by many retired or former judges who agree to fill in on a temporary basis when needed.

[Thanks to KempLog for the pointer.]

Posted by Marcia Oddi on Saturday, February 26, 2005
Posted to Indiana Courts

Friday, February 25, 2005

Ind. Law - Indiana Bill to Limit Local Govt. Wireless Died in Committee

"Indiana Bill to Limit Local Govt. Wireless Died in Committee" is the heading to a story today in Government Technology. Some quotes:

A bill that would impede the development of Indiana's technical infrastructure by effectively prohibiting municipalities from providing broadband Internet service died in the House Local Government committee last week.

The state's municipal officials strongly opposed the bill because it would have hindered economic development. * * *

HB 1148 would have prohibited a city or town from controlling, owning, or operating facilities for providing cable, telecommunications, and information services unless the city or town conducts an inquiry into the availability of services from other providers in the area, holds a public hearing on the proposal and determines the costs and benefits of the proposed facilities.

The bill would have also prevented cities or towns in Indiana from entering into partnerships such as the one that has made the wireless network in Rio Rancho, N.M., possible.

The Indiana Association of Cities and Towns contends that private sector investment in broadband infrastructure in Indiana is not sufficient. "Mayors across the state have begged service providers for broadband for years, only to be told that the market is not there," IACT claimed in a position paper. * * *

"One of the first questions a municipal official is asked when discussing location with a prospective new member of the business community is about technology infrastructure, and broadband service in particular," Matthew Greller, IACT executive director, said.

Many Indiana municipalities have already implemented broadband programs to help attract businesses and keep jobs in the state. The city of Marion is among them.

Posted by Marcia Oddi on Friday, February 25, 2005
Posted to Indiana Law | Indiana economic development

Ind. Decisions - Procreation is the key to gay marriage rulings

"Procreation is the key to gay marriage rulings" is the headline to an AP story available today in the San Jose Mercury News. Some quotes from the beginning of the piece:

SAN FRANCISCO - For the judges around the country deciding whether gays and lesbians should be allowed to marry, much of the legal analysis boils down to sex, or to put a finer point on it, procreation.

Opponents of same-sex marriage argue that the need to ensure the survival of the state and species - through the creation of offspring by a man and a woman - is the historical and institutional foundation upon which marriage exists.

"The fundamental right to marry has always been about procreation," Alliance Defense Fund attorney Glen Lavy recently argued to San Francisco County Superior Court Judge Richard Kramer, who is expected to rule any day whether California's ban on gay marriage violates the state Constitution.

Kramer is the latest among dozens of judges and courts nationwide to hear such arguments - that procreation is a loftier goal than ending what many gays and lesbians say amounts to discrimination.

But before judges decide whether supporting procreation should outweigh ending alleged discrimination, they must first decide whether the desire to create children even meets the "rational basis" test.

Specifically, the question is whether it is rational to limit the rights and privileges of one class of citizens - gays and lesbians - in order to promote the legitimate state interest of fostering the survival of the human race.

Courts in Massachusetts, New York and Washington state, in ruling against same-sex marriage bans, recently wrote that the state interest no longer applies in a modern world of artificial insemination and adoption - and that in any case, procreation isn't threatened by same-sex marriage.

"The precise question is whether barring committed same-sex couples from the benefits of the civil marriage laws somehow serves the interest of encouraging procreation. There is no logical way in which it does so," King County Superior Court Judge William Downing of Seattle ruled in August 2004.

But courts in Indiana and Arizona, facing the same sets of facts, have gone the other way. The Indiana Court of Appeals ruled in January that "there was a rational basis for the Legislature to draw the line between opposite-sex couples, who as a generic group are biologically capable of reproducing, and same-sex couples, who are not."

Posted by Marcia Oddi on Friday, February 25, 2005
Posted to Ind. App.Ct. Decisions

Ind. Courts - Federal judges toured Terre Haute City Hall last week

The Terre Haute Tribune contains this news item today that begins:

Federal judges toured Terre Haute City Hall last week to see if it might serve as a possible location for the U.S. District Court.

Mayor Kevin Burke said he asked the judges to tour the 69-year-old facility as part of a broader attempt to keep the federal court in Terre Haute.

"When we began down this road, my objective was to make the decision to move the federal court out of Terre Haute a very difficult decision," he said. To lose the court, he said, would be a "loss of stature" for the community that he is determined to avoid.

The courtroom and offices are currently located on the second floor of the federal building at Seventh and Cherry streets. That building has been discussed as a possible property for Indiana State University, placing the court's operation there in doubt.

Last year, the federal General Services Administration published a request for proposals for a build-to-lease building in Terre Haute's downtown area.

Dave Wilkinson, spokesman for the Administration, said progress toward that end stopped "because it became apparent that there wasn't funding to do that."

Posted by Marcia Oddi on Friday, February 25, 2005
Posted to Indiana Courts

Ind. Decisions - Court of Appeals posts four today

Tony Goodrich v. Dearborn County (2/25/05 IndCtApp) [Real Property]
Sharpnack, Judge

Tony Goodrich appeals the trial court’s denial of his motion for relief from judgment. Goodrich raises one issue, which we restate as whether the trial court abused its discretion by denying his motion for relief from judgment. We reverse and remand. * * *

In summary, we conclude that Goodrich substantially complied with the notice provisions of Ind. Code § 6-1.1-25-4.5. However, Johnston and MainSource also argued that the auditor failed to send proper notices. Because the trial court found that Goodrich failed to send proper notices, the trial court did not address this issue. Consequently, we reverse the trial court’s finding that Goodrich failed to send a proper notice of redemption period pursuant to Ind. Code § 6-1.1-25-4.5, but we remand for consideration of whether the auditor sent proper notices.

For the foregoing reasons, we reverse the trial court’s denial of Goodrich’s September 8, 2003 motion and remand for proceedings consistent with this opinion. Reversed and remanded.
FRIEDLANDER, J. concurs

BAKER, J. concurs in part and dissents in part with separate opinion. Initially, I wish to note that I was a member of the motions panel that restricted this appeal to issues arising from the denial of the Trial Rule 60(B) motion. I acknowledge now that this finding was incorrect and that Goodrich was entitled to consideraton under Trial Rule 72(E). It is therefore proper that we consider the trial court’s ruling as a grant of an extension of time pursuant to Trial Rule 72(E).

But just because I made one mistake does not mean that I need to make another. For that reason, I cannot agree with the majority’s conclusion that Goodrich substantially complied with the notice requirements. * * *


Roberta Fischer-Marsh v. Scott & Rebecca Fischer
(2/25/05 IndCtApp) [Real Property]
Sharpnack, Judge
* * * Although the Fischers do not deny that they agreed to provide Marsh with a lifetime residency at the farmhouse and lifetime medical care and pay for all utilities, electricity, heating oil, taxes, and final burial expenses, they contend that these agreements were separate from transfer of the property and were not consideration for the execution of the deed. By finding that Marsh was not entitled to rescission, the trial court implicitly found that Marsh failed to prove the deed was subject to a condition subsequent. Specifically, Marsh failed to show a meeting of the minds between herself and the Fischers and failed to show that the Fischers took the deed “knowing full well” that they were taking the deed subject to certain obligations to Marsh. Brunner, 150 Ind. App. at 162, 275 N.E.2d at 566. Marsh’s request that we find the agreements to provide her with lifetime residency at the farmhouse, lifetime medical care and payment for all utilities, electricity, heating oil, taxes, and burial expenses were consideration for the transfer of the property is a request that we reweigh the evidence and judge the credibility of the witnesses, which we cannot do. Infinity Prod., 810 N.E.2d at 1032. The oral agreements do not constitute conditions subsequent to the deed, and, thus, the trial court’s finding that Marsh is not entitled to rescission of the deed is not contrary to law.

Marsh also argues that the trial court’s order is inconsistent and contrary to law because it denies her request for rescission but makes the preliminary injunction permanent. When the trial court made the preliminary injunction, which gave Marsh possession and occupancy of the farmhouse, permanent, the trial court in effect gave Marsh a life estate in the farmhouse. This finding is not inconsistent with the trial court’s finding that Marsh was not entitled to rescission of the deed. The Fischers do not dispute that they gave Marsh a lifetime residency in the farmhouse. The trial court apparently concluded that there was an agreement to provide Marsh with a lifetime residence at the farmhouse but that the lifetime residency was not a condition subsequent to Marsh’s transfer of the farm to the Fischers.See footnote We cannot say that the trial court’s finding is contrary to law.

For the foregoing reasons, we affirm the trial court’s judgment denying Marsh’s request for rescission of the deed but making the preliminary injunction permanent. Affirmed.
BAKER, J. and FRIEDLANDER, J. concur

Lamar Owens v. State of Indiana (2/25/05 IndCtApp) [Criminal Law & Procedure]
Baker, Judge
Appellant-defendant Lamar Owens brings this interlocutory appeal following the trial court’s grant of the State’s motion to amend Owens’s charging information. Specifically, Owens contends that it was error for the trial court to allow the State to add an additional charge following his first successful appeal to this Court. Finding that no new evidence or information was discovered that would allow the State to increase the number of charges brought against Owens, and further concluding that the filing of additional charges in these circumstances would have the effect of penalizing Owens for exercising his right to an appeal, we reverse the order of the trial court and remand with instructions to dismiss the added charge relating to Owens’s activities on May 7, 2002. * * *

The judgment of the trial court is reversed and remanded with instructions to dismiss the added charge relating to Owens’s activities on May 7, 2002.
SHARPNACK, J., and FRIEDLANDER, J., concur.

Robert McNew v. State of Indiana (2/25/05 IndCtApp) [Criminal Law & Procedure]
Vaidik, Judge
Robert McNew appeals the enhanced sentence he received for Aggravated Battery. Specifically, he asserts that his enhanced sentence violates the United States Supreme Court’s recent decision in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004), reh’g denied, because his Sixth Amendment right to have the facts supporting the enhancement of his sentence tried to a jury was violated. Because we find three valid aggravators that do not violate Blakely, we affirm the enhanced sentence. * * *

[Initially the Court rejcts the "State’s argument that Blakely does not apply to Indiana’s sentencing scheme," citing Strong v. State, and the State's assertion:

that McNew waived any argument under Blakely because he did not make an objection at the time of sentencing. Our court recently rejected the State’s waiver argument. See id. at 258-61 (reasoning that the “statutory maximum” in the Apprendi decision is different than the “statutory maximum” in the Blakely decision and that a failure to object is not tantamount to a knowing, intelligent, and voluntary waiver under the Sixth Amendment).
The first aggravator found by the trial court is that “the fact that imposition of a reduced or suspended sentence would depreciate the seriousness of the crime.” * * * Because this aggravator cannot be a justification for a sentence above the “statutory maximum,” i.e., the presumptive sentence, its use does not implicate Blakely concerns. * * *

As to the second aggravator, the trial court referenced McNew’s prior convictions. These convictions have already been proven beyond a reasonable doubt and are thus exempt from the Apprendi rule as explained in Blakely. See Blakely, 124 S. Ct. at 2536. The third aggravator—the risk that, based on his criminal history, McNew will commit another crime—is derivative of the criminal history aggravator and does not implicate Blakely. See Carson v. State.

We find that the fourth aggravator, the nature and circumstances of the crime, was improper under Blakely because it was based on facts neither found beyond a reasonable doubt by a jury nor admitted by the defendant. See Berry v. State. * * *

Ultimately, a single aggravating circumstance is adequate to justify a sentence enhancement. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002), reh’g denied. In this case, three aggravators do not run afoul of Blakely and one does. We find no error in McNew’s enhanced sentence. Affirmed.
NAJAM, J., concurs.
KIRSCH, C.J., concurs in result.

Posted by Marcia Oddi on Friday, February 25, 2005
Posted to Ind. App.Ct. Decisions

Law - Ohio Justice has $18,000 stolen from car

The AP is reporting:

CLEVELAND (AP) - An Ohio Supreme Court justice had $18,000 of his money stolen from his state-issued car while he was being honored at a high school dinner, authorities said.

Justice Terrence O'Donnell, 59, told police the theft occurred Feb. 16 in the Flats riverfront entertainment district, where he parked his car for the St. Edward High School event.

O'Donnell, 59, received the school's 2004 Alumnus of the Year honor. When he returned to the car, a window was smashed and the money and a briefcase were missing, according to a police report.

"There's so many ways that this could have been avoided or fixed," O'Donnell said Thursday. "I've rethought this, and re-examined myself and second-guessed myself hourly since this occurred."

O'Donnell said he keeps large amounts of cash at home and had planned to deposit the money in a checking account to pay for home repairs.

"I recognize that this is very odd," O'Donnell said in a phone interview with The Associated Press. "But I also recognize ... that it's my money, and I would like it back."

Posted by Marcia Oddi on Friday, February 25, 2005
Posted to General Law Related

Ind. Decisions - Transfer list for week ending February 25, 2005

Here is the Indiana Supreme Court's transfer list for the week ending February 25, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column. Several cases were granted transfer.

Posted by Marcia Oddi on Friday, February 25, 2005
Posted to Indiana Transfer Lists

Ind. Law - More on "Where does the Indiana Constitution say that?"

Thanks to those of you I've heard from re my entry Wednesday on "Where does the Indiana Constitution say that?"

In that entry I noted that "Legislative leaders have said for years that their only constitutional responsibility is to write a budget" and asked: "So, where does the Indiana Constitution say that? I sure can't find it."

One writer, who knows more about the Indiana Constitution than most, sent me a list of duties that the Constitution imposes upon the General Assembly. There are a lot of them, but none involve the budget. Two of them require the General to act during a specific legislative session

"The General Assembly elected during the year in which a federal decennial census is taken shall fix by law the number of Senators and Representatives and apportion them among districts according to the number of inhabitants in each district, as revealed by that federal decennial census." Art. 4, Section 5.

"The Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses except treason and cases of impeachment, subject to such regulations as may be provided by law. Upon conviction for treason, the Governor may suspend the execution of the sentence, until the case has been reported to the General Assembly, at its next meeting, when the General Assembly shall either grant a pardon, commute the sentence, direct the execution of the sentence, or grant a further reprieve." Art. 5, Section 17
The remaining requirements are more generalized:
"The General Assembly shall provide for the registration of all persons entitled to vote." Art. 2, Section 14(c)

"The length and frequency of the sessions of the General Assembly shall be fixed by law.". Art. 4, Section 9

"Contested elections for Governor or Lieutenant Governor, shall be determined by the General Assembly, in such manner as may be prescribed by law.". Art. 5, Section 6

[The General Assembly (or at least one house) is required in various parts of Art. 5, Section 14 to consider and act upon vetoed bills.]

"The terms of office and compensation for members of a judicial nominating commission shall be fixed by the General Assembly.". Art. 7, Section 9

"it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide, by law, for a general and uniform system of Common Schools" Art. 8, Section 1

"The General Assembly shall invest, in some safe and profitable manner, all such portions of the Common School fund, as have not heretofore been entrusted to the several counties; and shall make provision, by law, for the distribution, among the several counties, of the interest thereof." Art. 8, Section 4

"It shall be the duty of the General Assembly to provide, by law, for the support of institutions for the education of the deaf, the mute, and the blind; and for the treatment of the insane.". Art. 9, Section 1

"The General Assembly shall provide institutions for the correction and reformation of juvenile offenders." Art. 9, Section 2

"The General Assembly shall provide, by law, for a uniform and equal rate of property assessment and taxation and shall prescribe regulations to secure a just valuation for taxation of all property, both real and personal." Art. 10, Section 1

"It shall be the duty of the General Assembly, to provide for the permanent enclosure and preservation of the Tippecanoe Battle Ground." Art 15, Section 10
So there are a lot of duties the Constitutional requires the General Assembly to perform, but nowhere are there words to this effect: "The General Assembly shall pass a budget each biennium."

Two writers tie this oft-repeated "mandate" to, as one wrote, the "super-long (and tense) special sessions that we had during budget years (esp. 1993) that effectively concluded that the Governor could not do anything other than help preserve the public health and safety if there was no budget in place . . . and I assume that they meant that he had no constitutional authority to do so in the absence of a budget." The other added:

I agree with the statement that during the budget special sessions in the 90’s we always thought that state government would have to shut down if the budget were not passed by July 1. There was some talk that even legislators could not be paid. Also, the notion was widespread that the only legislation we are constitutionally required to pass is the budget and apportionment bills. The requirement to redistrict, of course, is constitutionally mandated. The requirement to budget is implied, I think, as a basic power of any legislative body. In the sense that no one else can do it, if we fail to do so, the general assembly is required to pass a budget. I know that Mike Phillips wanted to combine the budget and redistricting bills in one act because he thought more legislators would find it difficult to refuse to pass the two together.
This writer points out that most provisions in the aptly-named "biennial budget" are not continuing, they are for the specific two-year period commencing on July 1st of odd-years.

Another reader wrote in to ask whether this might tie-in to the prohibition of Art. 10, Sec. 3:

"No money shall be drawn from the Treasury, but in pursuance of appropriations made by law."
Yes, I think so. There is no specific constitutional mandate that the General Assembly pass a budget each biennium. But if they don't, government will come to a halt when the appropriated funds run out. Although the circumstances are somewhat different, we saw that at the federal level during the Clinton administration, when non-essential portions of the federal government shut down because of the failure of Congress and the Executive (Newt and Bill) to arrive at agreement.

Posted by Marcia Oddi on Friday, February 25, 2005
Posted to Indiana Law

Ind. Gov't. - Several stories today in the inspector general bill

"Inspector general bill slows House to crawl: Minority tries to strip prosecutorial power" is the headline to this story today by Nili Kelly in the Fort Wayne Journal Gazette. Some quotes:

Bitter division over one of Gov. Mitch Daniels’ top legislative priorities ground the House to a slow crawl Thursday.

After a brief appearance to pray and pledge, House members spent hours behind closed doors discussing strategy. At 5 p.m., they returned and heard strong debate on two Democratic amendments aiming to strip the prosecutorial power away from the Office of Inspector General.

Republicans defeated the changes along party lines – sending the Democrats to caucus again after just an hour and a half of work.

The controversy surrounds House Bill 1002, which would formalize the Office of Inspector General to ferret out waste, fraud and corruption in the executive branch of state government. It also strengthens some state ethics laws.

But Democrats claim it goes too far in giving the appointed inspector general the limited power to prosecute criminal cases against state employees accused of wrongdoing.

“This bill would allow the IG to act as special prosecutor and that causes many of my colleagues and me great hesitation,” said Rep. Peggy Welch, D-Bloomington. “Do we want an appointed person … to have the power to usurp the power of your local prosecutor?” * * *

Welch and others pointed out that no other state has given their inspectors general prosecutorial power.

And for good reason, said House Democratic Leader Pat Bauer, of South Bend – the Constitution. “You shouldn’t create an unconstitutional blend between the executive branch and the judicial branch. I don’t understand why you would so demean the elected official in this county by saying you need somebody to trump him,” he said. * * *

Republican House Speaker Brian Bosma defended the bill, which he said is necessary to control a spate of scandals state government has seen involving its employees in recent years. “It’s strong medicine, but it’s needed,” he said. “There are so many safeguards it probably goes beyond making it as effective as it could be.”

Rep. Jeff Espich, R-Uniondale, also said he has been embarrassed by the recent criminal behavior of employees of the Bureau of Motor Vehicles, Family and Social Services Administration and Public Employees Retirement Fund. “You are worried about the wrongdoing that might occur,” he said. “I’m worried about the wrongdoing that’s been occurring.”

The bill now moves for a final vote either Monday or Tuesday.

Some quotes from the Evansville Courier& Press story by Jennifer Whitson:
"This is the strongest anti-public corruption bill I've seen in my years here," Bosma said, adding that the changes are needed to counter a "culture that no one's minding the store."

Democrats say the bill would violate the constitutional demand for separation of powers. On Thursday, they offered an amendment that would have stripped the prosecutorial powers from the bill. * * *

Rep. Trent Van Haaften, D-Mount Vernon, a former Posey County prosecutor, gave an impassioned speech in favor of the amendment. "I lost more sleep thinking about the decisions I had to make as a prosecutor than I do as a state representative," Van Haaften said. "The burden was heavier. I could ruin someone's life just by filing charges against them. We are changing our system of government if we push this thing through."

Bosma countered with a list of recent scandals at state agencies and quasi-governmental organizations, including the Bureau of Motor Vehicles, the Public Employees Retirement Fund, the Intelenet Commission and the Family and Social Services Agency. Of the scandals Bosma listed, all resulted in charges and three out of four have resulted in convictions.

See also this story in the Louisville Courier Journal and this story from the Indianapolis Star

Here is a list of some earlier ILB inspector general entries: Feb. 21st; Feb. 20th; Feb. 13th.

Posted by Marcia Oddi on Friday, February 25, 2005
Posted to Indiana Government

Ind. Gov't. - WISH-TV explores "Highway Robbery" in Indiana

WISH-TV Indianapolis (channel 8) has been broadcasting a continuing investigative series on INDOT - the Indiana Department of Transportation. As of this morning, they are up to Part 16, and up next is:

Next in our investigative series: Governor Mitch Daniels talks about our findings and what sort of changes the new administration will be putting in place.

Posted by Marcia Oddi on Friday, February 25, 2005
Posted to Indiana Government

Environment - Several water stories today

The Indianapolis Star has an editorial today headed "Give cities flexibility to clean up water," supporting SB 620. It concludes:

SB 620 would encourage local officials to launch projects to fix their sewer systems without fear that they might wind up being sued for an occasional discharge during heavy rains.

The long-term goal ought to remain total elimination of sewage in Hoosier waterways. SB 620 provides a common-sense means for eventually reaching that goal.

Earlier ILB entries on SB 620 were posted on Feb. 1st, and Feb. 21st.

The Gary Post-Tribune has a story today headed "E. coli warnings at beach reviewed." Apparently the authorities have concluded that closing the beach after they get back high-contamination results from the lab may be unwarranted, as the results are a day out-of-date:

PORTAGE — People who go to Indiana Dunes National Lakeshore beaches this summer may get warnings about bacteria in the Lake Michigan water.

The “advisories” are likely when sewage plants have sent untreated sewage into Lake Michigan tributaries after heavy rains.

And park staffers will distribute brochures advising visitors how to protect themselves against contaminated water — for instance, don’t allow children with dirty diapers into the water.

But the national park doesn’t plan to close a beach just on the basis of one laboratory test for E. coli bacteria.

Relying on the current E. coli test, which takes 24 hours to produce a reading, “is not a public service,” Indiana Dunes National Lakeshore Superintendent Dale Engquist said. * * *

Tests have shown that high-bacteria readings usually drop sharply the day after a high reading.

As a result, beaches often have been open on high-bacteria days — before the test results are ready — and closed on low-bacteria days.

“We think there’s a false sense of security when we say beaches are open or closed (based on the test),” said Todd Webb, the Indiana Dunes State Park manager.

The Munster (NW Indiana) Times reports today on a serious situation in East Chicago that could impact Lake Michigan:
A fracturing sea wall along the Indiana Harbor Ship Canal has put local, state and federal agencies in crisis mode.

The World War II-era steel barrier just west of Indianapolis Boulevard has bowed nearly 3 feet since January, and officials are worried contaminated soil from the former refinery there will leak into the canal, which joins Lake Michigan and the Grand Calumet River.

"We regard this as an emergency situation," said Bill White, project manager with the U.S. Army Corps of Engineers, at a Wednesday meeting of the city's Waterway Management District Board.

The board is local sponsor of a plan by the corps and U.S. Environmental Protection Agency to dispose of 4.6 million cubic yards of polluted sediment dredged from the harbor and canal at the former Sinclair/Atlantic Richfield site there.

"We realize the canal is not in pristine condition," said Steve West, project specialist with the Indiana Department of Environmental Management.

The harbor and canal have long been considered the most polluted area in the Great Lakes system, according to an international agency that oversees Great Lakes issues.

Legal permits from the state must be obtained before the corps can implement even a temporary solution -- the piling of 1,500 cubic yards of stone against the failing sea wall -- a process that will take about 60 days, West said.

White said the corps has applied for the water quality permit in the name of the Waterway Management District and is waiting to hear from the state's Department of Natural Resources. He said a contract for the emergency work should be granted in the next few days.

Posted by Marcia Oddi on Friday, February 25, 2005
Posted to Environment

Environment - Daniels backs Bush stand on Clear Skies legislation

"Daniels backs Bush stand on Clear Skies legislation" is the headline to this story today by Tammy Webber of the Indianapolis Star. Some quotes:

Gov. Mitch Daniels on Thursday jumped into the national debate over a controversial Bush administration proposal to curb smokestack pollution, saying it's the best way to reduce dirty air and keep Indiana's economy growing.

Daniels and acting U.S. Environmental Protection Agency Administrator Steve Johnson held a news conference to promote the Clear Skies legislation, which would reduce nitrogen oxides, sulfur dioxide and mercury -- emitted by coal-burning power plants -- 70 percent by 2018.

The law would establish a national pollution limit, or cap. Industries would be allowed to buy emissions "credits" -- essentially the right to pollute -- from companies that reduce pollution, as long as overall emissions stay beneath the cap.

Johnson said Clear Skies also would help Indiana counties that violate federal standards for smog and soot comply with the limits.

"There is no measure (federal lawmakers) will vote on anytime soon that has as much potential benefit to Indiana as this bill," said Daniels, who recently sent a letter to Indiana's congressional delegation, urging it to support the bill, now in the Senate Environment and Public Works Committee. The panel is expected to vote on the bill Wednesday.

But opponents say it does not reduce emissions of heart- and lung-damaging pollution far enough or fast enough. They argue that enforcing the current Clean Air Act would reduce pollution by 90 percent up to 10 years sooner.

The story includes a sidebar contrasting the Clean Air Act and Clear Skies Act:

Clean Air Act Clear Skies Act
Limits mercury emissions at 5 tons per year by 2008. Limits mercury emissions at 15 tons per year by 2018.
Limits nitrogen oxides emissions at 1.25 million tons by 2010. Limits nitrogen oxides emissions at 1.7 million tons by 2018.
Limits sulfur dioxide emissions to 2 million tons by 2012. Limits sulfur dioxide emissions to 3 million tons by 2018.
States can ask the EPA for relief from upwind polluters. States cannot seek relief from polluters in other states.
Requires industries (non-utilities) to install technology to achieve maximum reductions available. Allows non-utility industries to opt into cap-and-trade program, suspending the requirement for maximum achievable reductions of some hazardous air pollutants.

Posted by Marcia Oddi on Friday, February 25, 2005
Posted to Environment

Thursday, February 24, 2005

Ind. Decisions - Court of Appeals posts one today

Andrew N. Vandivier v. State of Indiana (2/24/05 IndCtApp) [Criminal Law & Procedure]
Najam, Judge

* * * The issue of materiality in obstruction of justice cases is a mixed question of law and fact which is analyzed using a two-tiered framework. In this case, the trial court did not abuse its discretion when it admitted Clay’s statement, and the evidence was sufficient to support Vandivier’s conviction for obstruction of justice. Affirmed.
KIRSCH, C.J., and VAIDIK, J., concur.

Posted by Marcia Oddi on Thursday, February 24, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts one today

Timothy R. Chamberlain, M.D., et al. v. Richard Steven Walpole (2/24/05 IndSCt) [Medical Malpractice; Statutory Construction]
Boehm, Justice

We hold that the Medical Malpractice Act does not provide a cause of action for damages for a wrongful death where the Wrongful Death Act does not allow such an action.

Richard Walpole’s father died following surgery for a hernia repair. Walpole filed a proposed medical malpractice complaint with the Indiana Department of Insurance, seeking recovery from six physicians and two hospitals for funeral and burial expenses, “lost love, care, affection, society, companionship, and services of his father,” and “extreme mental anguish.” Three of the physicians filed a motion for preliminary determination under the Medical Malpractice Act, arguing that the Wrongful Death Act precluded recovery for the loss of Walpole’s father’s love, care, and affection. The remaining defendants later joined that motion. The trial court denied the motion and certified the order for interlocutory appeal. The Court of Appeals affirmed with Judge Baker dissenting. Chamberlain v. Walpole, 796 N.E.2d 818, 819 (Ind. Ct. App. 2003)

Walpole argues that although he cannot recover non-pecuniary damages for his father’s death under the Wrongful Death Act (WDA), the Medical Malpractice Act (MMA) allows him to do so. All parties agree that this appeal turns on the interpretation of these two acts. This presents a question of law that we review de novo. * * *

In Breece v. Lugo, 800 N.E.2d 224 (Ind. Ct. App. 2003), a different panel of the Court of Appeals (Judges Ratliff, Robb, and Vaidik) recently rejected the contention that the MMA created a claim for death of a fetus even though, as recently held in Bolin v. Wingert, 764 N.E.2d 201, 203 (Ind. 2002), no such claim could be pursed under the Child Wrongful Death Act. I.C. § 34-18-1-1. We agree with the analysis of the Breece panel and therefore today deny the pending petition for transfer in that case.

Conclusion. The decision of the trial court is reversed. This case is remanded for proceedings consistent with this opinion.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.

Posted by Marcia Oddi on Thursday, February 24, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit posts one today

Franklin, Harrison v. McCaughtry, Gary R. (ED Wis.) [13 pp.]

Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. In February 1996, Harrison Franklin was convicted by a Wisconsin court of armed robbery, reckless endangerment, and bail jumping. To make matters worse, at the time he committed these crimes he was a repeat offender and free on bond pending his appeal of a prior battery conviction. After exhausting his remedies in the state courts, Franklin filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition but granted a certificate of appealability on the issues of trial-judge bias and ineffective assistance of counsel. On appeal, Franklin alleges that the state court judge was actually biased and that the Wisconsin Court of Appeals’ rejection of this point was contrary to, and constituted an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. Although the burden is high on habeas corpus petitioners, we conclude that Franklin has met these demanding standards here; we therefore vacate and remand for issuance of the writ. * * *

II
* * * Here, the only inference that can be drawn from the facts of record is that Judge Schroeder decided that Franklin was guilty before he conducted Franklin’s trial. This is a clear violation of Franklin’s due process rights.

III
Because Judge Schroeder was actually biased, Franklin is entitled to a new trial. See Edwards, 520 U.S. at 647; Bracy, 286 F.3d at 414; Cartalino, 122 F.3d at 9-10. Accordingly, we VACATE and REMAND this case with instructions to grant Franklin’s petition for habeas corpus unless the state institutes proceedings to re-try him within 60 days.

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

Ind. Decisions - John Doe v. City of Lafayette will not be appealed

In a split en banc decision from July 30, 2004, the 7th Circuit affirmed 8-3 Judge Sharp's (ND Ind.) ruling upholding the City of Lafayette's lifetime banning of convicted sex offender Doe from the City's parks. Quotes from the dissent included:

As this ban violates Doe's First Amendment right to freedom of thought by impermissibly punishing him for those thoughts, I respectfully dissent. * * * Despite our repudiation of the content of his thoughts, the City of Lafayette may not punish Doe for his thinking alone, for without protection from government intrusion into our thoughts, the freedoms guaranteed by the First Amendment are virtually meaningless.
See this 7/30/04 ILB entry, and this entry from the following day, 7/31/04, with quotes from contemporaneous press coverage.

Today, Dan Shaw of the Lafayette Journal & Courier reports:

A convicted child molester banned from Lafayette's 17 city parks has given up the fight to have the case appealed to the U.S. Supreme Court.

Ken Falk, an attorney with Indiana Civil Liberties Union who represented John Doe, said Wednesday that the U.S. Supreme Court accepts only about 70 of the 7,000 to 8,000 cases it receives every year. And after consulting with his client, they agreed to end the fight in the case of John Doe v. the City of Lafayette.

"We felt it was not a case that would be reviewed," Falk said.

In an action that gained national attention, Lafa-yette city officials in 2000 placed a ban on John Doe from entering city parks after Lafayette police received a tip that he had been observing children at Murdock Park and harboring sexual thoughts. * * *

After being upheld once and then being overturned once, the ban was upheld a second time by the 7th Circuit Court of Appeals last July. Because of John Doe's decision not to continue the appeals, the parks ban will stand.

But opinions on the consequences of the case are far from decided throughout Greater Lafayette.

Joan Laskowski of West Lafayette said she understood Falk's reasoning but continues to lament the outcome.

"The ban is punishing a person for thoughts and not actions," she said. "And that's not the kind of country we are."

But Connie Basham said keeping John Doe away from the parks might help his assimilation into society.

"A person who has an addiction -- we need to place that person in an environment (where) they are not going to be around addictive material," the former Tippecanoe County commissioner said. "And I think it's most appropriate he's not going to be around children if that's the target of his addiction."

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

Environment - Menards and State of Wisconsin's DNR clash over application for construction in wetlands

There was a brief blurb on this issue on the NPR news broadcast this morning. Here are some quotes from an editorial in the University of Wisconsin student newspaper, The Spectator.

Home-improvement retailer Menards is moving one of its Eau Claire manufacturing plants to Belgrade, Minn., citing conflicts over the location of the plant with the state Department of Natural Resources as the reason for the move, according to a Leader-Telegram article.

The relocation, which will create 80 to 100 jobs in Minnesota, is only the latest in a long string of clashes between Eau Claire's largest employer and the DNR. Last fall, the company was charged in Eau Claire County Court with a felony count of disposal of hazardous waste without a license.

This time around, the DNR claims the location of a new Menards warehouse in the town of Union would destroy two wetlands that are important for migratory birds during spring months.

The struggle between creating new jobs and protecting the environment is not new. However, the company has denied alternative options, such as different building sites in the area, according to the article. Menards is showing an unwillingness to cooperate with DNR officials, an error on the part of the company.

While the prospect of new area jobs is appealing, the price of permanent wetland destruction is not worth returns such jobs would have on the economy. Employment may come and go, but it is impossible to recreate wildlife areas.

Here are some quotes from a Feb. 14th AP article via the Janesville WI Gazette.
EAU CLAIRE, Wis. - Menards says the state has forced it to move a local manufacturing plant to Minnesota because it won't issue the home improvement retailer a building permit.

Menard Inc., headquartered in Eau Claire, will move an Eau Claire manufacturing plant to Belgrade, Minn., where it will employ 80 to 100 people.

The dispute could also affect about 900 new jobs.

"It is certainly no secret that there are certain agencies here in Wisconsin that have been awfully difficult, if not impossible, to work with on business issues," Menards spokeswoman Dawn Sands said.

Other states "have agencies and communities that have a very positive, pro-business attitude," Sands said. "It becomes a pretty easy choice to make."
* * *

Menards wanted to consolidate operations from several buildings into one plant but has been unable to get building permits because of the state Department of Natural Resources, Sands said.

DNR spokesman Dave Weitz said he's familiar with only one permit Menards requested recently. It involves a warehouse to be built in a wetland. When Menards was informed the land was a wetland, officials said it would revise the project.

"What we require from Menards is exactly the same thing we require from any business in the state of Wisconsin," Weitz said.

[Menards spokeswoman Dawn Sands] said the DNR told the company the field planned for the plant was a landing spot for migratory birds during their migration from north to south. She questioned why the birds couldn't land across the street.

Posted by Marcia Oddi on Thursday, February 24, 2005
Posted to Environment

Ind. Gov't. - You're hired . . . fired, 4 workers hear

"You're hired . . . fired, 4 workers hear: Ex-Commerce managers given pink slips say they had job offers from Daniels' staff rescinded." That is the headline to a story today in the business section of the Indianapolis Star by J.K. Wall.

My sub-headline would have been: "Commerce Secretary Pat Miller shows a lot of class in an unfortunate situation."

Some quotes from the story:

Four former Commerce managers from the Democratic administration of Gov. Joe Kernan were verbally offered jobs in Daniels' administration in late December and early January. Within weeks, each person said, they got the proverbial pink slip.

One woman, Vicki Kellerman, said she received a letter confirming her appointment the same day Secretary of Commerce Pat Miller told her she had to go.

Jane Jankowski, spokeswoman for Daniels, said the confusion resulted because the leadership of Commerce, which now has been replaced by the Indiana Economic Development Corp., got started before Daniels issued his directives on hiring. * * *

[Kellerman, an] 8-year veteran of economic development spent the last two years in Madison directing a Commerce regional office.

She ran unsuccessfully as a Democrat for state representative against Cleo Duncan in 1996.

On Jan. 11, the day after Daniels took office, Miller and Mickey Maurer, the IEDC chief, asked Kellerman to remain in Madison, Kellerman said. She agreed.

On Jan. 31, Kellerman received a letter at her home from Janey Trout, Commerce's director of human resources, confirming her re-appointment, stating her salary, and congratulating her on her continued work at Commerce.

About an hour after reading the letter, Kellerman said, she received a call from Miller, who asked if she could visit her in person. At Kellerman's house, Miller broke the bad news. [my emphasis]

Kellerman recalled Miller saying, "It's very frustrating when you pick out the best people for the job, and they don't get approved across the street." The governor's office at the Statehouse sits across Capitol Avenue from Commerce's offices.

Miller told Kellerman that she had failed a background check. Kellerman already had passed two background checks, which generally examine criminal history and driving records, under previous administrations.

Kellerman recalls Miller asking, "Are you very political?" Kellerman told Miller about her Democrat politicking. "She just said, 'Well, I suppose that's it,' " Kellerman said.

Posted by Marcia Oddi on Thursday, February 24, 2005
Posted to Indiana Government

Environment - More on "IDEM looks for 70,000 tons of trash"

Yesterday we posted an entry titled "IDEM looks for 70,000 tons of trash" quoting from a story in the Gary Post-Tribune (scroll down 3 entries). Today the Munster (NW Indiana) Times reports, according to the headline, "Firm attributes missing waste to evaporation." Some quotes:

The 70,000 tons of trash reported missing by state environmental officials apparently disappeared into thin air, an attorney for a local waste facility said Wednesday.

No, really, it evaporated.

Daniel McInerny, an attorney for Nathan Sanko, said his client will meet today with officials from the Indiana Department of Environmental Management to offer an explanation as to why the waste data he reported differs with data reported from the Chicago Department of Streets and Sanitation. * * *

"We think we have accounted for what IDEM considers a discrepancy. It appeared the Chicago numbers were wet figures while the figures presented by my client to IDEM were dry weights. We have provided that conversion to IDEM and will discuss it further with them today," McInerny said.

In short, the difference is that the water weight evaporated.

Posted by Marcia Oddi on Thursday, February 24, 2005
Posted to Environment

Ind. Courts - Panel wants to let Senate vote on court nominees

"Panel wants to let Senate vote on court nominees" is the heading of a brief item today in the Indianapolis Star.

The Indiana Senate would gain the power to confirm or reject a governor's nominee for the supreme or appellate court under a constitutional amendment approved Wednesday by the Senate Judiciary Committee.

Voters also no longer would have a say in whether supreme and appeals court judges are retained. Instead of appearing on a ballot at the end of their 10-year terms, the judges would need to be reconfirmed by the Senate.

The committee voted 10-1 for Senate Joint Resolution 1, which also allows the Indiana House to impeach judges, just as it can any other state official, with the Senate holding a trial to decide, on a simple majority vote, whether the judge should be removed from office.

Sen. Michael Young, R-Indianapolis, author of the proposed constitutional change, had sought much more. His original proposal would have had the appeals court judges run for election just as other candidates do.

Under the proposal, which now goes to the full Senate, a nominating commission -- expanded to include nonlawyers -- would make recommendations to the governor to fill a supreme or appellate court vacancy. The governor would choose one, and the Senate would vote. If at least 60 percent of the 50-member Senate voted no, the governor would choose again.

Current justices and judges would go through a retention vote in the Senate once their terms are up. If at least half of the Senate voted not to keep the judge, the nominating process to fill the vacancy would begin.

To become part of the Indiana Constitution, the amendment must be passed by two separately elected legislatures. Voters then must approve the change. The soonest all of that could happen is November 2008.

The revised version of SJR 1 is not yet available online. In addition, the digest shown for SJR 1 on the General Assembly's website page for SJR 1 erroneously describes a proposal relating to "miliary and overseas voters."

[More] Another interesting courts story today comes from the Louisville Courier Journal and discusses a Kentucky program to unclog their local courts system through the use of "senior judges."

Posted by Marcia Oddi on Thursday, February 24, 2005
Posted to Indiana Courts

Wednesday, February 23, 2005

Ind. Law - Where does the Indiana Constitution say that?

An editorial today in Warrick Publishing's Boonville Standard contains this paragraph:

The state budget is the most important of all the matters we consider. According to the Indiana Constitution, it is the one duty we must perform as legislators. Through the budget, we fund our schools, provide health care, and pay for the economic development programs that help us attract good-paying jobs for Hoosiers.
A story in the Louisville Courier Journal on January 4th [no longer available online] contained this statement:
Daniels did not address the General Assembly's only constitutional requirement and one of its toughest jobs: writing the next two-year state budget. He plans to release his budget ideas during the State of the State address on Jan. 18.
A column in the Indianapolis Business Journal from the week of February 7th [also not available online] began this way:
"While this session will, necessarily and constitutionally, be all about the budget, ..."
So, where does the Indiana Constitution say that? I sure can't find it.

I asked one of the writers and received this prompt, straight-forward response:

Interesting question. Legislative leaders have said for years that their only constitutional responsibility is to write a budget. I hate to admit I've never looked it up -- at least not until I received your email. And I did not find what I was expecting.
MORE COMING

Posted by Marcia Oddi on Wednesday, February 23, 2005
Posted to Indiana Law

Environment - IDEM looks for 70,000 tons of trash

"IDEM looks for 70,000 tons of trash" is the headline to a story today in the Gary Post Tribune. The is another in a series of reports that began with the Chicago Tribune "blue bag waste" stories. Some quotes:

The Indiana Department of Environmental Management has asked Nathan Sanko of Back 2 Basics to account for more than 70,000 tons of waste he allegedly hauled from Chicago but never reported to the state.

IDEM Deputy Assistant Commissioner Bruce Palim sent a letter to Sanko last Friday informing him of Chicago records, which show more than 149,000 tons of waste was hauled away and sent to Sanko’s farmland and compost facility near Lowell. Records sent by Sanko to the state account for approximately 70,000 tons. * * *

IDEM has given Sanko seven days to submit the requested information. The letter states it is being requested “to assess compliance with the permits and approvals you hold for the subject facilities.”

Posted by Marcia Oddi on Wednesday, February 23, 2005
Posted to Environment

Ind. Courts - Indiana Lawyer Who Missed Court Date Won't Be Sanctioned

"Lawyer Who Missed Court Date Because of Spam Blocker Won't Be Sanctioned" is the heading of a story today being distributed via Findlaw.com. Some quotes:

A plaintiffs' attorney in a wrongful-death lawsuit, who missed a court date because his firm's spam blocking software automatically sidetracked the court's e-mail notice, has narrowly escaped being sanctioned for failing to appear at the scheduled status conference.

Attorney Jeffrey J. Stesiak, of Sweeney, Pfeifer, Morgan & Stesiak in South Bend, Ind., who represents the family of Ruthie Barnes, explained in his response to the order to show cause that he did not receive the electronically transmitted notice from the court that the status conference would be held Dec. 8, 2004. Stesiak said he left for a vacation in California Dec. 7 but if he had received the notice, he would have had another member of his firm attend the conference.

Stesiak said that with the help of the court's system administrator, he discovered that his law firm's spam-blocker software set the Internet security level too high, which blocked the e-mail notification from the court. After the security level was reset, the notification came through.

U.S. Magistrate Judge Christopher A. Nuechterlein accepted the explanation and concluded that sanctions, which could have included dismissal of the case, were not warranted.

Posted by Marcia Oddi on Wednesday, February 23, 2005
Posted to Indiana Courts

Ind. Law - Bill to conform Indiana sentencing to Blakely standard passes out of Senate committee

"Juries would decide whether to lengthen sentences under bill" is the headline to a story by Niki Kelly in today's Fort Wayne Journal Gazette. Some quotes:

Juries would have to find aggravating circumstances in order for sentences to be enhanced after a conviction at trial under a bill passed unanimously Tuesday by the Senate Corrections, Criminal and Civil Matters Committee.

The change in sentencing law is in response to a U.S. Supreme Court decision that found judges can’t impose higher sentences based on facts that have not been proven in front of a jury.

Senate Bill 96 would revamp Indiana’s sentencing structure to meet federal muster, said Sen. David Long, R-Fort Wayne. “The Supreme Court case threw the sentencing structure into disarray,” Long said. “It triggered an earthquake basically.”

Under the bill, which now goes to the full Senate, prosecutors would have to provide notice to defendants of any aggravating circumstances – except prior convictions – they plan to use to enhance a sentence.

In Indiana, sentencing starts with a presumptive or base number of years and can be increased depending on a number of aggravating factors. After a defendant is found guilty at trial, the jury would then hear more evidence in a separate hearing to determine whether aggravating circumstances exist to enhance the sentence. The judge would still be responsible for sentencing. A person who pleads guilty also waives their right to such a proceeding.

Long noted that the Indiana Supreme Court is considering the issue and the bill can be amended if the justices give lawmakers more guidance.

The ILB had a lengthy entry on Jan. 5th on the work of the Sentencing Policy Study Committee and their legislative proposal.

Posted by Marcia Oddi on Wednesday, February 23, 2005
Posted to Indiana Law

Ind. Decisions - Court of Appeals posts one today

Casey Bettencourt v. Chad Ford (1/14/05 IndCtApp) [Family Law]
[Initially NFP]
Sharpnack, Judge

Casey (Ford) Bettencourt (“Mother”) appeals the trial court’s order modifying child custody and awarding Chad Ford (“Father”) custody of their son, Z.F. Mother raises one issue, which we restate as whether the trial court abused its discretion by granting Father’s motion to modify custody. We affirm. * * *

Based upon all of the evidence, we cannot say that the trial court abused its discretion by finding that a substantial change occurred in one of the statutory factors or that modification was in Z.F.’s best interests. Accordingly, we conclude that the trial court did not abuse its discretion by granting Father’s motion to modify custody. See, e.g., Haley, 771 N.E.2d at 750 (holding that the trial court did not err by modifying custody in favor of the father).

For the foregoing reasons, we affirm the trial court’s order modifying custody and awarding custody of Z.F. to Father. Affirmed.
BAKER, J., and FRIEDLANDER, J. concur.

Posted by Marcia Oddi on Wednesday, February 23, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - 7th Circuit posts two today

Parks, Marshall v. Wells Fargo Home (CD Ill.) [12 pp.]

Before BAUER, KANNE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. When Norwest Mortgage, Inc., failed properly to pay two tax installments on property mortgaged by Marshall and Cindy Parks, a bureaucratic snarl ensued. The Parkses, along with Norwest, became enmeshed in a legal fight to avoid losing their home. Although they eventually succeeded in defeating the claim of a tax scavenger who had fraudulently obtained a tax deed on the Parkses’ home, the Parkses blamed Norwest for allowing the situation to get out of hand. They sued Norwest (now part of Wells Fargo Home Mortgage, Inc.) for breach of contract, breach of fiduciary duty, and violation of duties imposed by the Illinois Consumer Fraud Act (CFA), 815 ILCS 505/2, invoking the federal court’s diversity jurisdiction. * * *

We realize that, for a brief time, the Parkses must have been seriously worried about the prospect of losing their home as a result of Norwest’s errors. Nonetheless, Norwest’s actions were not the sort that can support emotional or punitive damages, nor can they form the basis of a claim under the CFA. We therefore VACATE the award of emotional distress and punitive damages and REVERSE the district court’s finding of liability under the CFA.

Cerros, Tony v. Steel Technologies (ND Ind., Theresa L. Springmann, Judge) [18 pp.]

Before EASTERBROOK, WOOD, and WILLIAMS, Circuit Judges
WOOD, Circuit Judge. This is the second time the district court has granted judgment against Tony Cerros in his hostile work environment claim against his former employer, Steel Technologies, Inc., and for the second time, we have concluded that we must reverse that judgment. In Cerros v. Steel Technologies, Inc., 288 F.3d 1040 (7th Cir. 2002) (“Cerros I”), we expressed concern that the court’s judgment against Cerros might have resulted from a “misunderstanding about the legal threshold for harassment cases,” given the court’s failure to explain why the “appalling litany of misconduct” documented in its order was insufficient to show a hostile work environment, id. at 1046-47. On remand, however, the court did not start from a clean slate. Instead, it incorporated its factual findings from its first order and made additional findings that unfortunately conflict with respect to critical aspects of Cerros’s claim. In light of these inconsistent findings, as well as certain problems with the legal analysis reflected in the judgment below and the conduct of Steel’s counsel, we remand this case for a new trial.

Posted by Marcia Oddi on Wednesday, February 23, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Some other 2005 bills of interest

Monday the Indianapolis Star had a story headlined "1,500 bills big and small vie for attention." Here are two bills that got my attention, but not through any newspaper stories I recall reading. Both are Senate bills.

One is Senator David C. Ford's (R, Dist. 19, Hartford City) SB 381, concerning a statewide broadband system. The bill passed second reading yesterday and should be eligible for Senate passage tomorrow.

The other is Senator Sue Landske's (R, Dist. 6, Cedar Lake) SB 259, concerning rulemaking by instrumentalities of the state. This bill passed the Senate on Feb. 15th, 48 to 0.

Senate Bill 381 was placed back on second reading and substantially revised yesterday by its author, Senator Ford. Here is the digest to the current version of the bill:

Statewide broadband system. Establishes a coordinating body to determine the feasibility of implementing a statewide broadband network, scheduled to dissolve July 15, 2007. Establishes the Indiana broadband development program, a separate body corporate and politic, to be administered by the Indiana development finance authority. The broadband development program is established to encourage the development of affordable broadband services and networks in underserved areas in Indiana. The broadband development program coordinates the financing of broadband infrastructure development and otherwise facilitates the establishment of broadband service in underserved areas in Indiana.
According to Sen. Ford, "My reason for pushing this technology is to advance broadband technology to what I perceive to be the next level in Indiana at this point." He adds "The bill is supported by many groups including mayors, [the Indiana Association of Cities and Towns,] economic develpment directors, rural advocates such as the Farm Bureau and even the Governor's office but faces strong and organized opposition from the major telephone companies." A commentator notes: "[SB 381] offers a very interesting alternative to the telecom-backed anti-competition bill that we've been following for the past month or so." That bill was HB 1148, which proposed limits on municipally-offered internet services, and which is last-referenced in this Feb. 17th ILB entry.

SB 259 is already in the House. Its current digest reads:

Rulemaking by instrumentalities of the state. Specifies that an instrumentality of state government (including a body corporate and politic or other corporation exercising essential government functions) is an agency for purposes of the rulemaking procedures set forth in IC 4- 22-2. Prohibits certain instrumentalities from adopting rules without complying with IC 4-22-2. Authorizes instrumentalities to adopt rules necessary or appropriate to perform their duties and exercise their powers. Requires instrumentalities of state government to submit rules: (1) in effect before July 1, 2005; and (2) adopted at or after a public meeting of the instrumentality, but not in compliance with IC 4-22-2; to the publisher of the Indiana Register and the Indiana Administrative Code for assignment of a document control number. Requires an instrumentality to submit the rule to the secretary of state for filing after the assignment of the document control number. Requires the secretary of state to submit copies of a rule accepted for filing to the attorney general. Allows, rather than requires, the attorney general to review the rule for legality and to disapprove a rule for specified reasons. Provides that if the attorney general does not issue a notice of disapproval before October 2, 2006, the rule: (1) is considered approved; and (2) must be published in the Indiana Register and the Indiana Administrative Code. (The introduced version of this bill was prepared by the code revision commission.)
As I read it, this bill would bring "instrumentalities of state government" - quasi-state entities such as the State Office Building Commission, Indiana Economic Development Corporation, Indiana Health Facility Financing Authority, etc. under the provisions of IC 4-22-2, relating to the adoption of administrative rules by "state agencies" (now to include "instrumentalities of state government").

As an example, the Teachers' Retirement Fund Board law, at IC 21-6.1-3-7(a)(1) currently reads:

(a) The board may do any of the following:
(1) Adopt and enforce rules and regulations regarding the fund's administration and the control and investment of the fund.
After amendment, that provision will read:
(a) The board may do any of the following:
(1) Adopt rules under IC 4-22-2 necessary or appropriate to perform its duties and exercise its powers.
The bill also has a "fallaway" SECTION 28 (see p. 31 of the Feb. 11th printing) that provides that 30 specifically named quasi-public entities (including those I've named above) are to submit any current "rules" they wish to retain through the process described in the SECTION, with the first step to be completed by Oct. 1, 2005. The final steps are publication in the Indiana Register and codification in the Indiana Administrative Code.

[One thing I am not clear on is found on p. 10 of the Feb. 11th printing. Does the new subsection (29) added on that page automatically give unrestricted emergency rulemaking authority to all instrumentalities of state government?]

Posted by Marcia Oddi on Wednesday, February 23, 2005
Posted to Indiana Law

Law - More Supreme Court stories today

"The justices who took their seats for yesterday's hearing gave a glimpse of a future Supreme Court." reads the lead to a story in the Washington Post today by Dana Milbank. More:

Introduced as "the associate justices of the Supreme Court" -- the chief justice is too ill to attend oral arguments -- only seven of the court's nine members took their places on the bench. In addition to the expected absence of William H. Rehnquist because of his thyroid cancer, the court's John Paul Stevens, 84, was also missing.

Sandra Day O'Connor, presiding over the court for the first time, temporarily put liberals' fears to rest: Stevens's absence owed not to illness but to a canceled flight. Still, the two empty chairs, belonging to the court's two oldest and longest-serving members, served as a reminder of the uncertainty surrounding the court's future composition. Not a single justice in the chamber predated the Reagan presidency. * * *

But yesterday's arguments -- in a pair of important property rights cases -- suggested that even significant changes in the court's composition may not automatically translate into major shifts in its sentiment. As they grilled property rights advocates yesterday, the justices, regardless of ideology, displayed a reluctance to break with precedents and to disrupt the status quo. * * *

The tone of oral arguments is not always predictive of the ruling. And Rehnquist, often a private-property advocate, may still participate in deliberations in the case. But if the skeptical hearing of the property rights cases yesterday was any indication, the Supreme Court is far from being as reliable as many conservatives had hoped.

Charles Lane, the Post's Supreme Court reporter, has a piece, headlined "Defining Limits of Eminent Domain." Lane also has a story in the Post today headlined "Justices to Hear Challenge to Oregon Assisted-Suicide Law." Some quotes:
Granting a request by the Bush administration, the Supreme Court said yesterday that it will decide whether the Justice Department may bar Oregon doctors from prescribing lethal doses of drugs to terminally ill patients who have chosen to die under that state's 11-year-old Death With Dignity Act.

In a brief order, the court said it will review a lower court's decision preventing enforcement of a November 2001 statement of Justice Department policy by then-Attorney General John D. Ashcroft. The directive said that assisting suicide is not a "legitimate medical purpose" under federal drug-control law and that the Drug Enforcement Administration could strip the prescribing rights of any physician who authorized drugs to help someone die.

Ashcroft's directive overturned a 1998 decision by President Bill Clinton's attorney general, Janet Reno, to permit Oregon doctors to assist in suicides.

Posted by Marcia Oddi on Wednesday, February 23, 2005
Posted to General Law Related

Law - In landmarking, Daley believes nothing's sacred

"In landmarking, Daley believes nothing's sacred" is the headline to a story today in the Chicago Tribune. Some quotes:

Mayor Richard Daley on Tuesday sent a chill down the collective spine of Chicago's religious community, at the same time giving a boost to preservationists who want landmark status for Chicago's most distinctive houses of worship.

"People worked hard all their lives to build these religious institutions, and to see someone come by with a ball and chain and just knock them down ... ," Daley said. "You think of all the sweat and hard work and money spent for these buildings, and many of them have historical significance and architecturally have real significance."

A proposal that would permit the landmarking of churches, synagogues, mosques` and other houses of worship has caused great concern in religious circles, said one church leader who asked not to be named.

"The whole notion that the religious organization has a responsibility to maintain its buildings (as landmarks) is so alien to the way religious organizations see themselves," he said. "We don't define ourselves in terms of maintaining monuments. We define ourselves in terms of mission."

At stake are millions of dollars.

Owners of houses of worship currently are permitted to reject landmark designation, but a proposal co-sponsored by 10 aldermen would end their ability to opt out.

Experts say that at least 200 Chicago churches are of landmark quality, and the owners of any of them that were to win designation would lose the ability to tear down and be forced to maintain them in perpetuity. * * *

"I think the mayor is right when he talks about the importance to the neighborhoods of these structures," said David Bahlman, president of the Landmarks Preservation Council of Illinois. "Religious structures--churches--have always been sort of the anchor of every neighborhood even when there is demographic change and the Hispanic neighborhood becomes Polish or the Polish becomes Hispanic."

The religious opt-out provision "should be removed because the only thing it is doing is hastening the destruction of historic buildings," said Jonathan Fine, president of Preservation Chicago. "They belong to the streetscape. To demolish them demoralizes neighborhoods."

Church leaders cite the constitutional guarantee of freedom of religion to argue for the continued exemption in the city's landmarks ordinance, while preservationists contend that religious organizations should be subject to the same requirements of the law that apply to all other property owners.

Preservationists now are pushing to save St. Boniface, a shuttered Catholic church at Chestnut and Noble Streets, as Ald. Walter Burnett Jr. (27th) seeks to fashion a compromise in which a developer would purchase the building from the archdiocese, save the facade and construct condominiums on the site.

This story is not unique to Chicago. From a July 7, 2004 ILB entry:
RLUIPA. The federal Religious Land Use and Institutionalized Persons Act is in the news in Louisville, according to this Courier-Journal story [no longer available]. Some quotes:
The Roman Catholic Archdiocese of Louisville says in a federal lawsuit that metro government is interfering with religious freedom by refusing to allow buildings to be torn down to make way for church parking.

Louisville blocked plans to provide space for parking across Shelby Street from St. Martin of Tours by granting landmark status to the buildings, once home to Tonini Church Supply Co.

The lawsuit, filed last month in U.S. District Court, places the archdiocese in the middle of a national debate over whether governments can restrict how religious institutions use their property. * * *

If the lawsuit goes to trial, it "will be a good test" of a 2000 federal law that requires governments to show a compelling reason why a church's rights should be limited, Haynes said.

The Religious Land Use and Institutionalized Persons Act is the latest effort by Congress to protect religious freedom against excessive land use restrictions, he said.

Although many cases involved in the law are winding through the courts, Haynes said Louisville's is unusual because buildings that the government is trying to protect aren't a physical part of the church. A more typical case would involve a church fighting a historic status designation that affects the main church building, such as precluding an old altar from being moved, Haynes said.

The original ILB has several entries on the RLUIPA (use your browser back key to return): "Zoning laws and religious groups" (4/26/03); "Zoning Laws and Religious Groups II" (7/4/03); and "Zoning and Religious Groups - 7th Circuit ruling on application of RLUIPA" (8/20/03).

Posted by Marcia Oddi on Wednesday, February 23, 2005
Posted to General Law Related

Tuesday, February 22, 2005

Law - [Updated] More on Supreme Court eminent domain arguments today

An entry earlier today talked about the upcoming oral arguments on the taking of private property for private development. Now some reports on the arguments:

Nina Totenberg (busy lady) reports here (click to listen) on NPR. The blurb reads:

High Court Considers Connecticut Property Seizures
by Nina Totenberg

All Things Considered, February 22, 2005· The Supreme Court hears arguments on a city's plans to acquire residential property for redevelopment by private interests. Opponents to the New London, Conn., initiative say it does not qualify as a project that directly benefits the public.

Dahlia Lithwick reports in Slate, in an article cutely titled "Condemn-Nation: This land was your land, but now it's my land." She begins:
I've witnessed some weird moments at oral arguments over the years, but I'm thinking absolutely nothing could compare with the sight I beheld today: In the midst of argument in Kelo v. New London—a critically important case about the government's right to condemn private land and give it to private developers—the lawyer for the city of New London, Conn., pulls out an actual prop. In response to a query from Sandra Day O'Connor as to whether there's a concrete development plan for what would replace the handful of homes being condemned, Wesley W. Horton hauls out a big poster board with the whole proposed community laid out. Condos here, marina here, yank out this crappy little Victorian house and the health club will go there, he enthuses.

My heart begins to pound. I want in on this deal. And O'Connor looks like she does, too.

[More] And what about HB 1063, authored by Rep. David Wolkins, which would, according to the amended digest, prohibit use of "eminent domain to acquire property for public use to transfer any interest in property to another person for commercial use unless the property owner has rejected an offer from the state or a political subdivision that is equal to at least the higher of 150% of the property's assessed value or the average of 3 appraisals of the property."? It was passed by the House Tuesday. See earlier ILB entires on this bill from 1/23/05 and 1/31/05.

[Updated 2/23/05] The Indianapolis Star has a story today about HB 1063. Headlined "House OKs higher price for eminent domain: Bill would make governments pay a premium to obtain property for commercial development," the story is reported by Matthew Tully. Not pointed out in the story is that the introduced version of the bill wiould have flatly prohibited "the taking of private property by eminent domain for commercial purposes." Hence its direct parallels to Kelo v. New London. The amended version of the bill which passed the House yesterday, however, would simply:

make it more costly for government to condemn private property for the sake of commercial development, as the U.S. Supreme Court heard a case that could lead to even more restrictions. * * *

Wolkins' bill would force cities, counties and other governments to pay a premium for property they condemn to make way for commercial development -- such as new subdivisions, shopping centers or manufacturing plants. The bill could affect several projects in Indianapolis, including Mayor Bart Peterson's push to build a new Colts stadium south of the RCA Dome.

City and town officials from throughout Indiana rallied against the bill, which the House passed by a vote of 67 to 29. "The bill makes it more difficult and costly for cities to do economic development," said Evansville Mayor Jonathan Weinzapfel. "I'm not sure what this bill is trying to fix." * * *

The House bill forces governmental entities to pay property owners in those cases 150 percent of the property's assessed value or the average of three private appraisals. The owner would receive the higher of those two yardsticks.

The Star story notes that:
The House vote came as the U.S. Supreme Court heard arguments in a case that could have sweeping ramifications for cities. In the case, New London, Conn., is attempting to replace a middle-class neighborhood with new development.
Interestingly, reports from the oral argument in that case indicate that although the justices seemed hesitant to adopt the plaintiffs' position limiting "takings", the price paid by the governmental entity may become an issue at some future date -- another parallel to Wolkins' bill. For example, Linda Greenhouse concludes her report today in the NY Times:
How to measure the value - the city has placed $1.6 million in escrow - is a question that is not before the court. But several justices suggested that the longstanding rule, that the eminent domain price reflects the current market and not any expected appreciation from the project itself, was unfair in this context and should be revisited, perhaps in a future case.

Posted by Marcia Oddi on Tuesday, February 22, 2005
Posted to General Law Related

Environment - Two interesting Indiana IDEM stories

The Madison Courier has a report that IDEM is offering a free utility rate analysis to at least some local governmental units:

The [Hanover] Town Council received a letter from the Indiana Department of Environmental Management offering to perform a water-rate analysis for the town at no cost. The town already had planned to hear a proposal from a utility rate consultant at its next regularly scheduled meeting, Tuesday, March 1.

Seifert informed council members of the letter it received from IDEM. He asked if they would still be interested in hearing from the rate adjuster during its next meeting or if they would want to only take advantage of IDEM’s proposal.

Seifert said IDEM’s proposal to perform a water-rate analysis for free was worth taking a look at, but that the letter did not say how long it would take for the department to perform the analysis or how comprehensive it would be.

Seifert suggested keeping the appointment with the consultant, whose company has handled Hanover’s rate adjustments in the past. “There’s something to be said for continuity,” he said.

Council members agreed but thought it would be a good idea use IDEM’s offer as a second opinion. Seifert said he would call IDEM to find out more about its offer.

The Winchester News-Gazette reports:
The Indiana Department of Environmental Management (IDEM) has asked Union-Go Dairy to tear up and repour the concrete perimeter of a dairy barn. An IDEM official Friday said 800 linear feet of concrete was poured when temperatures were too cold for it to cure properly.

IDEM public information officer Amy Hartsock said the department received a call from another party (not the dairy) reporting a concern about about the concrete situation. The call prompted a site visit and inquiry by IDEM officials.

She said construction workers pouring the concrete covered it as they were supposed to, but did not apply heat. Union-Go personnel cooperated with the IDEM inquiry and agreed to take care of the deficiency.

"They, of their own volition made a determination that the concrete did not set up right and they went ahead and redid it," Hartsock said. "They were going to check it out and let us know what their findings were. Instead of waiting for us to tell them to redo it, they went ahead with the process.

"They are working cooperatively with us on this."

Hartsock said the footer in question is the structural support for a dairy barn.

She said the incident is not considered to be an official IDEM violation because it was followed up on when noted. No notice of violation was issued.

Posted by Marcia Oddi on Tuesday, February 22, 2005
Posted to Environment

Ind. Gov't. - Orange County casino delayed as Trump company faces bankruptcy

"Orange County casino delayed as Trump company faces bankruptcy" is the headline of an AP story today. It gives a good overview of the current situation, including these quotes:

"People are getting restless in the county, no doubt," said state Rep. Jerry Denbo, the French Lick Democrat who led the decade-long push to build a casino in French Lick, about 50 miles northwest of Louisville, Ky.

Scott Butera, the Trump company's chief operating officer, was quoted last week in a New Jersey newspaper as saying the company might pull out of the Orange County project because the $108 million development might not fit Trump's plans after bankruptcy.

But in an interview with The Courier-Journal of Louisville Friday, Butera said that all he was meant was that company officials need to meet with new leaders in Indiana.

"We're still proceeding in French Lick," he said.

Denbo said the statements by Butera were consistent with other signals from the company. The local Historic Hotel Preservation Commission had been receiving weekly progress reports from Trump representatives, but those stopped in early December, he said.

Posted by Marcia Oddi on Tuesday, February 22, 2005
Posted to Indiana Government

Ind. Decisions - One today from the Court of Appeals

Matter of the Change of the Established Water Level of Lake of the Woods (2/22/05 IndCtApp)
Bailey, Judge

Case Summary. Appellant-Petitioner Lake of the Woods Property Owners Association (the “Association”) appeals the trial court’s dismissal, after remand, of its petition pertaining to the water level of Lake of the Woods, a natural public freshwater lake located in Marshall County, Indiana. We affirm.

Issues. The Association raises four issues on appeal, which we consolidate and restate as: [1] Whether the trial court committed reversible error on remand by reappointing the same panel of viewers that had decided the original action to determine whether the Association’s petition was practical and of public need; [2] Whether the trial court’s strict adherence to the procedures enunciated by another panel of this Court in Lake of the Woods v. Ralston, 748 N.E.2d 396, 404 (Ind. Ct. App. 2001), trans. denied, deprived the Association of its due process rights under the federal and state constitutions; and [3] Whether the trial court erred by dismissing the Association’s petition pursuant to Indiana Code Section 14-26-8-19 because the viewers’ final report contained facts that were arbitrary, capricious, illegal, or unsupported by sufficient evidence. * * *

For the foregoing reasons, we affirm the trial court’s dismissal of the Association’s petition. Affirmed.
FRIEDLANDER, J., and DARDEN, J., concur.

Posted by Marcia Oddi on Tuesday, February 22, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today from Supreme Court

Hyundai Motor America, Inc. v. Sandra Goodin (2/22/05 IndSCt) [Contracts]
Boehm, Justice

We hold that a consumer may sue a manufacturer for economic loss based on breach of the implied warranty of merchantability even if the consumer purchased the product from an intermediary in the distribution chain. There is no requirement of “vertical” privity for such a claim. * * *

For the reasons given above we conclude that Indiana law does not require vertical privity between a consumer and a manufacturer as a condition to a claim by the consumer against the manufacturer for breach of the manufacturer’s implied warranty of merchantability.

Conclusion. The judgment of the trial court is affirmed.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.

Posted by Marcia Oddi on Tuesday, February 22, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit posts six today

More details later ...

Padilla, Luis F. v. Gonzales, Alberto R. (Immigration) [9 pp.]

Holton, John v. Indiana Horse Racing (SD Ind., Larry J. McKinney, Chief Judge) [4 pp.]

Centers, William L. v. Centennial Mortgage (ND Ind., Allen Sharp, Judge) [12 pp.]

USA v. Gardner, Benjamin (SD Ind., Sarah Evans Barker, Judge) [5 pp.]

Before BAUER, COFFEY, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Benjamin Gardner pleaded guilty to possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), and stealing firearms from a licensed firearms dealer, id. § 922(u). The parties agreed that the sentencing guidelines applied but disagreed whether Gardner’s prior conviction for Residential Entry under Indiana law constituted “a crime of violence” under U.S.S.G. § 4B1.2, which would affect Gardner’s base offense level under U.S.S.G. § 2K2.1. The district court concluded that the conviction did constitute a crime of violence and sentenced Gardner to 108 months’ imprisonment. Gardner appeals, and we affirm.

Voest-Alpine Indus v. Good, Margaret (SD Ind., Sarah Evans Barker, Judge) [17 pp.]

Before FLAUM, Chief Judge, and WOOD and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. This case begins and ends with our lack of appellate jurisdiction, though the path to that conclusion is not as straightforward as one might wish. After Heartland Steel, Inc., filed for bankruptcy, Voest- Alpine Industries, Inc., submitted a proof of claim seeking payment for services that it had provided to Heartland. Following some procedural finagling, Heartland’s trustee in bankruptcy sued Voest in Indiana state court alleging breach of contract and constructive fraud in relation to the provision of those services. Voest promptly removed the case to the bankruptcy court. At the trustee’s motion, the district court withdrew the reference from the bankruptcy court and remanded the trustee’s claims to state court. Voest asks that we reverse the district court, offering a clever but ultimately unpersuasive justification for why the jurisdictional bars imposed by 28 U.S.C. §§ 1452(b) and 1291 do not preclude our review of either aspect of the court’s order. Because we conclude that § 1452(b) and § 1291 govern, we dismiss Voest’s appeal for lack of jurisdiction.

Sharif, Richard v. Int'l Devmt Group Co (ND Ill.)

Posted by Marcia Oddi on Tuesday, February 22, 2005
Posted to Ind. (7th Cir.) Decisions

Law - Several more pieces of U.S. Supreme Court news today

"New Round of Speculation About Rehnquist's Farewell" is the heading to a story in the NY Times today by Neil Lewis and Linda Greenhouse. The lead:

When the Supreme Court resumes its term on Tuesday, Chief Justice William H. Rehnquist will again be absent from the bench because of his illness. Although he is not bedridden and has been regularly attending the justices' private conferences, his empty black leather chair will certainly set off a new round of speculation and chatter about his tenure on the court.

But for senior White House officials, as well as a handful of others who follow the court closely, a working assumption about what is going to happen has already taken shape. The strong expectation, senior administration officials and others said, is that Chief Justice Rehnquist is making his best effort to serve out the remainder of the term that ends in June before resigning. And the only question, they say, is whether the 80-year-old chief justice, who is suffering from thyroid cancer and the effects of his treatment, will be able to do so.

"Supreme Court to Consider Oregon Law on Assisted Suicides" is the headline to this story on the Times website about an action taken this morning by the Court. Some quotes:
The United States Supreme Court announced today that it would hear arguments on Oregon's law authorizing doctors to help their terminally ill patients commit suicide, the only such state law in the country.

The justices will hear arguments in the court term that begins this October. They will decide whether to overturn a ruling last May by the United States Court of Appeals for the Ninth Circuit, which upheld the law. The Bush administration has tried to overturn the law in the courts.

This link leads to the 9th Circuit decision and other materials.

Update on eminent domain arguments this morning. SCOTUSblog is reporting here that:

Marty reports that, based on the impression left by the oral arguments, the government is going to win today's property rights arguments overwhelmingly.

In Kelo, the plaintiffs may get as many as three votes: Scalia; Thomas (who did not ask any questions); and Rehnquist (who was not there). But it was clear that the Court would have to overrule Midkiff and Berman to rule for the plaintiffs, an approach for which there was no majority. One piece of good news for property-rights advocates was that members of the Court expressed the view that insufficient compensation is often paid under the Fifth Amendment, which if expressed in the Court's opinion or a concurrence, could open up a new avenue of property-rights litigation.

Posted by Marcia Oddi on Tuesday, February 22, 2005
Posted to General Law Related

Ind. Law - Confined feeding bill could go to study group

The Richmond Palladium-Item is reporting this afternoon that:

A bill that would have forced the Indiana Department of Environmental Management to penalize polluting confined animal feeding operations likely will go to a summer study committee.

On Monday, Senate Bill 123 was amended by the Senate Energy and Environmental Affairs Committee to require further study on the issue this year, said Sen. Allen Paul, R-Richmond. He said he expects the amended bill to be approved in the Senate and sent on to the House. The study committee will begin its work in June if the bill is approved by both Houses and signed by the governor.

"It's a very difficult issue, and both sides seem unwilling sometimes to negotiate," Paul said. "With the new staff at IDEM, this will give them some time to get their feet on the ground. There is no easy remedy, but I don't want a bill that doesn't do anything."

Paul wrote the bill in response to requests by Randolph County residents who fought a 1,650-cow megadairy that was granted a federal permit in fall 2004 by IDEM. That permit is under appeal, but construction on the dairy has begun.

Randolph residents wanted the bill because they say IDEM's enforcement actions against polluting confined animal feeding operations (CAFOs) lack muscle because it forgives fines and allows multiple violations.

Paul's original bill would have forced IDEM to revoke a CAFO's permit after three environmental violations.

The Indiana Farm Bureau spoke against the bill when a committee heard it three weeks ago but supports sending the issue to a study committee, said Bob Kraft, director of state government relations for Indiana Farm Bureau.

See also this Feb. 2nd ILB entry (last item).

Posted by Marcia Oddi on Tuesday, February 22, 2005
Posted to Environment | Indiana Law

Ind. Gov't. - Daniels names two more men to fill state posts

The Indianapolis Star is reporting on its website that Governor Daniels has appointed two more men to head state agencies:

Gov. Mitch Daniels today filled two key positions, naming John Eckart commissioner for the Indiana Department of Revenue, and Jim Atterholt commissioner of the Department of Insurance.

Eckart, a Corydon native, has been president and chairman of the board for the Indiana American Water Company, Ohio American Water Company and Michigan American Water Company. * * *

Atterholt was a state representative (House District 86) from 1998 to 2002. Since 2002 he has been the director of state government affairs for AT&T Indiana. He was district director for Congressman Dan Burton from 1992 to 2002.

Posted by Marcia Oddi on Tuesday, February 22, 2005
Posted to Indiana Government

Ind. Law - Charitable trusts in Indiana

Richmond attorney E. Thomas Kemp has a thoughtful piece today on his blog, Kemplog, titled "Rethinking Charitable Trusts." Check it out.

Posted by Marcia Oddi on Tuesday, February 22, 2005
Posted to Indiana Law

Ind. Courts - Upcoming oral arguments before our appeals courts

Access the February schedule of oral arguments before the Indiana Supreme Court here. Three cases are scheduled for Thursday, Feb. 24th.

The Court of Appeals calendar is here. Oral arguments are set for today (the 22nd), the 24th, the 25th and the 28th.

These links are always available in the right-hand column of this page, under the heading "Indiana Legal Resources."

Posted by Marcia Oddi on Tuesday, February 22, 2005
Posted to Indiana Courts

Law - U.S. Supreme Court hears arguments today in takings cases

Here is the Court's calendar for today, from the Washington Post.

Nina Totenburg of NPR had an excellent piece this morning introducing today's argument in the case of Kelo v. City of New London. Here is the info:

High Court to Consider Conn. Eminent Domain Case

Audio for this story will be available at approx. 10:00 a.m. ET

Morning Edition, February 22, 2005· The Supreme Court hears a case that tests whether a New London, Conn., may force homeowners to sell their land so that private companies can develop the area. Residents say governments can only force out residential property owners for public projects like roads or schools.

You may access five earlier ILB entires on taking private property for private development by typing "kelo" (no quotes) in the search box in the right-hand column.

[More] See also this LA Times coverage by David Savage, headlined "Cases Lift Hopes for Property Rights: Two disputes coming to the high court, dealing with rent control and eminent domain, could revive the fortunes of a conservative movement."

On NPR's Day to Day today, Slate legal analyst Dahlia Lithwick discusses eminent domain issues.

Posted by Marcia Oddi on Tuesday, February 22, 2005
Posted to General Law Related

Ind. Law - Proposed constitutional amendment to ban same-sex marriage passes Senate

"Senate OKs ban on gay marriages: Change to state constitution expected to pass House next" is the headline to the lead story today on the front page of the Indianapolis Star Mary Beth Schneider
writes:

The Indiana Senate voted overwhelmingly Monday to make a ban on same-sex marriages a part of the state constitution, shipping the controversial issue to the House.

Senate Joint Resolution 7 was approved 42-8 after a brief debate. The measure is expected to pass the House easily, too.

After that, the always-emotional issue must be set aside. Amending the state constitution requires a second vote by a separately elected legislature, which could happen no earlier than 2007. Then the amendment would have to be approved by voters statewide, in November 2008 at the earliest. * * *

Constitutional amendments do not need the approval of the governor. However, Gov. Mitch Daniels, a Republican, said Monday that Indiana "very well may" need a constitutional amendment prohibiting same-sex marriage.

"I'll respect the decision of the legislature on this issue," he said. "I do think it's the people of Indiana who ought to make decisions on fundamental matters like this."

The story has several sidebars, including this one:
Pros and Cons.

Indiana law already prohibits same-sex marriage. And both a Marion County judge and an Indiana appeals court have ruled that the law is constitutional.

However, supporters of the proposed constitutional amendment say the ban on same-sex marriage must be in the Indiana Constitution to protect traditional marriage from possible future court challenges. The amendment, though, goes beyond simply defining marriage as the union of one man and one woman.

Those opposed to the amendment cite the second section, which also bars the courts from construing Indiana laws in such a way as to grant marital status to unmarried couples or groups.

Sen. John Broden, D-South Bend, has argued that that language is too ambiguous and could lead to lengthy court challenges.

The resolution's sponsor, Sen. Brandt Hershman, R-Monticello, said the wording is meant to prevent courts from allowing civil unions, which he said are marriages in every respect but the name.

The amendment, he said, would not prevent the General Assembly from granting certain rights to gay couples, including legislation on medical and inheritance issues.

In a Senate hearing on the amendment, supporters said it is needed to preserve an institution that is the foundation of society.

Opponents said the issue already has had an impact on Indiana's attracting or losing companies, academics and professionals. They argue that the proposed amendment gives Indiana a backward and intolerant image.

For more information see this entry from yesterday.

Posted by Marcia Oddi on Tuesday, February 22, 2005
Posted to Indiana Law

Monday, February 21, 2005

Ind. Gov't. - [Updated] More on the inspector general bill

Another story today on the inspector general bill, this time from the AP. The bill is HB 1002, eligible for second reading in the House. (See also this entry from Sunday quoting from a Fort Wayne Journal Gazette story). Some quotes from the AP story:

The newly created state inspector general's office has launched about 50 investigations in its first month of existence, looking into complaints of ethics violations, misuse of state money and possible criminal conduct.

Republican Gov. Mitch Daniels says the office needs more power -- including the right to prosecute state employees in some cases -- to discourage such unethical or illegal behavior.

But Democrats say it's wrong to give a person appointed solely by the governor the authority to pursue criminal charges.

Daniels created the inspector general position in January by executive order and appointed former Clay County Prosecutor David Thomas to the job. Thomas said today the office has received some 100 complaints by state employees, and that half of them had enough merit to begin investigations.

Daniels said some state government employees had the attitude that no one was watching over them and that several other states have written permanent inspector general positions into state law.

"It's no accident that Indiana has been the scene of far too many scandals," Daniels said today. "We need an inspector general, an effective one to deter this conduct in the future."

[Updated 2/22/05] "Dems take issue with Daniels' remarks: House Democrats bristle at governor's tone in advocating bill for inspector general." That is the headline to a story today in the Indianapolis Star by Mary Beth Schneider. Some quotes:
Gov. Mitch Daniels blasted any lawmaker opposed to a bill creating a state watchdog and prosecutor.

"A vote against this bill is a vote to protect corruption," Daniels said Monday.

That drew immediate howls of protest from Democrats, who regard the bill creating an inspector general as an unconstitutional power grab by the new Republican governor.

Daniels' words, said House Minority Leader B. Patrick Bauer, are "not only uncalled for, it's outrageous."

"The very statement is a threat to any legislator who dares to say that a governor shouldn't have his own prosecutor," Bauer said.

Daniels made the statement Monday morning during a news conference called to bolster House Bill 1002, which has run into strong opposition from Democrats. With Republicans clinging to a 52-48 majority in the House, Daniels can't afford to lose more than one Republican vote for the bill to survive. * * *

If there is evidence, it should be turned over to a county prosecutor, Bauer said. The bill mixes the executive and judicial branches, he said, letting a governor-appointed inspector general take his case to an appeals court judge also likely appointed by the governor.

He said there are real constitutional concerns, and Daniels' statement that a vote against the measure is a vote for corruption "is unworthy of his office and of what he's done so far."

Until now, Bauer said, Daniels has not used words that "condemn those who disagree with him." * * *

The bill passed the House Government and Regulatory Reform Committee on Feb. 10 on a party-line vote. It has not been placed on the House schedule for debate. That's often a sign that a bill is in trouble, but [House Speak Brian] Bosma said he is confident it has enough support in the House to pass.

The Fort Wayne Journal Gazette also has a story this morning. Niki Kelly writes:
In a rare move, Gov. Mitch Daniels had a news conference Monday to encourage support for his top piece of public integrity legislation – a bill to formalize several ethics policies and put into law the authority of a watchdog for state agencies and employees. * * *

The legislation has been languishing in the House since an initial committee vote Feb. 10, and House Speaker Brian Bosma has not yet put it on the calendar for action. Despite loud Democratic opposition to House Bill 1002 and the stalled progress, both Bosma and Daniels denied the legislation is in trouble. * * *

The Journal Gazette also has an editorial today on the propsal. Some quotes:
Gov. Mitch Daniels’ vision of an Indiana inspector general is half right: Hoosiers will benefit from having a gubernatorial appointee responsible for ferreting out corruption, but the appointee should not be able to prosecute criminal charges against suspected offenders.

Giving the governor’s appointee powers to prosecute violates the separation of powers between the judicial and executive branches that wisely exists in both the state and federal constitutions. The decision to prosecute is best left with the county prosecutors who already have wide discretion in charging suspected criminals. * * *

Daniels and lawmakers would better serve Hoosiers by giving the inspector general the investigatory powers of a police agency without having the prosecutorial powers. Indeed, Daniels has already created the office by executive order and appointed David Thomas to the position.

The new governor has embraced change, and having a full-time investigator on the watch for corruption is a welcome addition to the governor’s staff. Enough scandals occurred in lower and middle levels of the O’Bannon and Kernan administrations that Indiana’s governor should have a trusted aide whose sole duty is to prevent and expose wrongdoing and waste.

Once uncovered, the inspector general should then forward evidence of suspected criminal wrongdoing to the appropriate county prosecutor, just as police do.

Other parts of the bill strengthen the state ethics commission, impose a one-year lobbying ban on executive branch employees and increase penalties for some public sector crimes.

Posted by Marcia Oddi on Monday, February 21, 2005
Posted to Indiana Government

Ind. Courts - Retired judge remains on bench without replacement

"Retired judge remains on bench without replacement" is the headline to this story today in the Richmond Palladium-Item. Some quotes:

Judge Douglas VanMiddlesworth, who retired effective Jan. 31, is still holding down the bench as a pro tem senior judge until Gov. Mitch Daniels appoints his successor. * * *

Under Indiana's constitution, when a vacancy occurs in a county court, it is the governor's responsibility to find a replacement.

Two weeks ago, the governor's press secretary Jane Jankowski confirmed that letters of interest in the job had been received and candidates were being asked to fill out applications. At least five local attorneys have inquired about the position. The governor or governor's staff has reportedly interviewed at least some of them. But there is still no announcement of a replacement.

And there has been no vetting of the applicants' bona fides here. Local judges and Wayne County Bar Association president Bob Bever have all offered to consult on the appointment, but none have been asked for an opinion yet.

VanMiddlesworth said he was assured a replacement would be named by Feb. 28. If that doesn't happen, it is up the Indiana Supreme Court to name another senior judge to sit in.

Posted by Marcia Oddi on Monday, February 21, 2005
Posted to Indiana Courts

Ind. Decisions - 7th Circuit site on the fritz again

There may be opinions today, but the Court's site is not loading ...

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

Ind. Decisions - Two today from the Court of Appeals

Jill C. Huffman v. State of Indiana (2/21/05 IndCtApp) [Criminal Law & Procedure]
Riley, Judge

Appellant-Defendant, Jill C. Huffman (Huffman), appeals the trial court’s denial of her motion to correct error seeking a correction in the trial court’s revocation of her probation. We dismiss without prejudice.

ISSUE. Although Huffman raises four issues on appeal, we find the following issue, which we raise sua sponte, dispositive: whether the validity of a guilty plea in a probation revocation proceeding can be raised on direct appeal. * * *

CONCLUSION. Based on the foregoing, we conclude that, pursuant to P-C.R. 1(1)(b), the validity of a guilty plea in a probation revocation proceeding can only be brought by a petition for post-conviction relief. Dismissed without prejudice.
CRONE, J., and VAIDIK, J., concur.

Richard & Gail Schultz v. Ford Motor Co. (2/21/05 IndCtApp) [Torts]
Kirsch, Judge
Richard and Gail Schultz appeal the jury verdict in favor of Ford Motor Company (“Ford”) on their product liability and negligence claims, contending that the trial court erred by using Final Instruction No. 23 (“Instruction 23”), which informed the jury that there was a rebuttable presumption that Ford was not negligent in its design of the Ford Explorer if it complied with Federal Motor Vehicle Safety Standard (“FMVSS”) 216, concerning roof crush resistance. On appeal, the Schultzes raise the following consolidated and restated issue: whether the trial court erred in using Instruction 23 because the presumption at issue was not a proper subject for jury instruction.
We reverse and remand for a new trial. * * *
BARNES, J., and CRONE, J., concur.

Posted by Marcia Oddi on Monday, February 21, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - "Disturbing events surrounding expansion plans at Indiana University School of Law - Indianapolis"

Josh Claybourn, 2nd year JD Candidate at Indiana University School of Law - Indianapolis and an active blogger, sent me a note this morning along with a link. The note:

Various media reports have not covered recent developments at the law school very well. There is troubling in-fighting between Indy and Bloomington. While this is nothing new, the significance and impact is
noteworthy.
The link is to a new entry in IndyLaw Net, "a website written and managed by students at Indiana University School of Law in Indianapolis." Some quotes from the start of the post:
For several weeks now IndyLawNet.com has learned about disturbing events surrounding expansion plans at Indiana University School of Law - Indianapolis. For various reasons we've witheld formal publication of these developments, but information from various high ranking administration officials has forced our hand.

In essence, plans have been in the works to expand IU Law - Indianapolis both physically and substantively. The plans called for an addition to the building, which would house the Indianapolis Bar Association (IBA) and the Indianapolis Bar Foundation (IBF). Others suggested an expansion of the Center for Intellectual Property Law as well. Dean Tarr set about securing money, donations, and support from alumni and the local legal community. As Dean Tarr has done so many times in the past, he succeeded in drumming up support and moved forward with the plans.

Yet when Dean Tarr sent the proposal to Bloomington for approval, he met an all too common resistance. Bloomington, it seems, was fearful of being overshadowed by its Indianapolis counterpart. IU Law - Indy found similar resistance to the building of Inlow Hall in the late 1990s, but this time Bloomington's jealous efforts succeeded. Bloomington will attempt to block any expansion plans in Indianapolis until Bloomington's law school has had their own chance to expand.

The comments (17 so far) following the post also are interesting.

Posted by Marcia Oddi on Monday, February 21, 2005
Posted to Indiana Law

Law - Supreme Court on a Shoestring

"Supreme Court on a Shoestring: Homeless Man Takes On Texas, Religious Display" is the headline to this lengthy story today in the Washington Post. I remember posting an entry on this fascinating story last year -- I'll post the earlier link when I find it.

Posted by Marcia Oddi on Monday, February 21, 2005
Posted to General Law Related

Environment - "No more stringent" bill writeup in NWI Times today

"Environmental standards could get muddy" is the headline to a story today by Brendan O'Shaughnessy in the Munster (NW Indiana) Times about HB 1383. Here is the revised digest to the bill, which appears to be eligible for second reading:

Environmental rulemaking. Prohibits the air pollution control board, water pollution control board, and solid waste management board from adopting a rule or standard that is more stringent than a corresponding federal provision established under federal law.
Some quotes from the Times story, which has tie-ins to the other enviroment story I posted earlier this a.m.:
House Bill 1383 would prohibit Indiana from adopting rules or standards more stringent than the corresponding provisions in federal law. The Indiana Department of Environmental Management would have its hands tied while the Bush administration lowers standards in the clean water laws, environmentalists said.

A federal rule expected this month would allow cities with outdated wastewater treatment systems to "blend" raw sewage and stormwater during occasional heavy rainfalls that overwhelm treatment plants.

Gov. Mitch Daniels on Friday said he doesn't believe the state needs more stringent standards than federal ones, because the U.S. Environmental Protection Agency is a strong protector of the environment.

"There are areas where Indiana has gone beyond federal rules, which are very tight, and I think it's hurt our economy," Daniels said.

Environmentalists and some lawmakers disagree. Lee Botts, a nationally known environmentalist from Gary, said HB 1383 was "backsliding" from clean water standards that can help Northwest Indiana change its image and spur economic development.

Botts said the region is undergoing a revolution in how it views the lakeshore.

After a century of considering heavy industry the best use for the shores of Lake Michigan, leaders now realize people want to live and play near the lake.

"When people read about beach closings for bacteria, it's hard to prove you've changed," Botts said.

National standards are considered a minimal baseline that states can make more stringent as they tailor laws to their own needs, Botts said. Otherwise, states may compete to lower environmental standards as they fight to lure businesses.

"It's an Orwellian approach to public policy," said Rep. Matt Pierce, D-Bloomington, who vowed to fight the bill. "It's triggering a race to the bottom in environmental standards."

Posted by Marcia Oddi on Monday, February 21, 2005
Posted to Environment

Ind. Courts - Overworked Southern Indiana district seeks another federal judge

Bryan Corbin of the Evansville Courier& Press has a story today headed "Overworked Southern Indiana district seeks another federal judge." The report begins:

Federal judges who serve Evansville and Southwestern Indiana are the third-busiest in the nation.

Their slate is so heavy that some are asking Congress to consider adding another judge to ease the court's work load.

Previous attempts have failed, and supporters for the idea acknowledge that federal courts are not high on the budget priority list.

The Southern District of Indiana, which includes two-thirds of the state, has had five federal judges since 1978.

"The judges here work long hours, the staff tends to work long hours; that's how we have been able to keep up all this time," said Laura Briggs, clerk of the U.S. District Court. "Like any other job, it's exhausting."

The Southern District dispenses federal justice from courthouses in Evansville, Terre Haute, New Albany and Indianapolis. Of the five judges, only Judge Richard L. Young is primarily based out of Evansville's federal courtroom. Yet, a quarter of the district's felony defendants last year were charged through the court in Evansville.

The Southern District's five judges carry the third-heaviest case load of any of the 94 federal district courts. Though the national average is 501 "weighted" cases per judge, the Southern District's average is 729 per judge. (Cases are assigned a "weight" based on degree of difficulty.)

Posted by Marcia Oddi on Monday, February 21, 2005
Posted to Indiana Courts

Ind. Law - [Revised] Gay marriage ban needs flexibility

"Gay marriage ban needs flexibility" is the title to the lead editorial today in the Indianapolis Star. The Star's position:

The state Senate should rewrite portions of a proposed amendment to ban gay marriage. * * *

Supporters of the amendment argue that it is necessary to guard against potential court decisions that would overturn the state's marriage law. Although the Indiana law was recently upheld, the concerns are understandable given the actions of courts in Massachusetts, New York and Vermont. * * *

Yet, the resolution as proposed not only would ban gay marriage but also shut off the possibility of civil unions. In that respect, the proposal goes too far.

Civil unions, or other legal arrangements that recognize the reality of gay relationships, do not yet exist in Indiana. And they may never be implemented here. But it's wrong for current lawmakers to block future legislators from at least considering some form of accommodation.

Senators appear determined to approve the resolution. Passage in the House also is almost certain. Before they act, however, lawmakers should carefully rewrite the proposal, ensuring that private benefits will not be affected and eliminating language that would block civil unions or other legal arrangements in the future.

The emotion invested in the debate over marriage is understandable. It is an institution, although battered by divorce and other shortcomings, that remains a cornerstone of a healthy society. Protecting that cornerstone is necessary and right.

The task must be approached, however, with caution and humility, understanding that current beliefs may one day yield to the customs of future generations.

Here is the link to SJR 007. The measure, after amendment in Senate Committee [oddly, the introduced version is not available online*], 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) This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups. [emphasis added]
________
[Note that subsection (b) was amended in committee. The language in the introduced version was slightly different:

(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]

A Star story from last Wed., Feb. 16th, reported that the proposal had passed second reading that Tuesday and would now be eligible for passage in the Senate:
Tuesday, Sen. John Broden, D-South Bend, tried to change the wording. He said the second paragraph is unclear.

"This language is going to go into our constitution," Broden said. "We should know what it means."

He urged the Senate to change it to say that the only marriage recognized as legal in Indiana is the union of one man and one woman.

[Author Sen. Brandt Hershman, R-Monticello] argued that the second portion of the amendment is needed to prevent the courts from creating civil unions or, he said, a marriage by any other euphemism.

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.
_____________
* The main page for SJR 7 contains a link only to the most recent version of the proposed constitutional amendment, not any earlier versions, and also does not include links to the votes on the proposal, as is the case with bills. I'm told this is a decision of data processing people.

However, although the link to the introduced version is no longer posted, the introduced version is still available if one saved the initial link to it, as attorney Doug Masson of Masson's Blog has. He was kind enough to send it to me: http://www.in.gov/legislative/bills/2005/PDF/RES/SJ0007.1.pdf

Posted by Marcia Oddi on Monday, February 21, 2005
Posted to Indiana Law

Environment - Bill, EPA may help with sewage woes

"Bill, EPA may help with sewage woes: State measure would protect against lawsuits as cities tackle problem; feds' plan deals with discharges," reads the headline today to this Indianapolis Star story by Tammy Webber. Some quotes:

[P]roposals before the state legislature and U.S. Environmental Protection Agency are aimed at helping cities and towns begin the expensive task of stemming billions of gallons of untreated sewage that overflow into rivers and streams each year from antiquated sewer systems.

The legislature will consider Senate Bill 620, which would let communities change water-quality standards during storms -- meaning waterways would not have to be clean enough for human contact for up to four days. That would protect the state from lawsuits while lawmakers work to solve the problem.

And the federal EPA is close to approving guidelines letting communities release a blend of fully and partially treated sewage during storms, rather than requiring them to build plants large enough to fully treat all waste.

"This is in no way meant to get local governments off the hook for correcting (overflows)," said Sen. Beverly Gard, R-Greenfield, who introduced the bill. "We want to (help them) move ahead."

SB 620 has not yet been passed out of the 1st house committee. However, it is scheduled for a hearing in the Senate Energy and Environmental Affirms Committee, chaired by Senator Gard, this morning at 9:30 a.m.

The proposed federal blending policy has been highlighted in the ILB before, most previously in this Dec. 9th entry titled "EPA May Allow the Discharge Of Partially Treated Sewage."

Posted by Marcia Oddi on Monday, February 21, 2005
Posted to Environment | Indiana Law

Sunday, February 20, 2005

Ind. Gov't. - Focus on Indiana's Governor, a Tax Cutter Who Has Become a Tax Raiser

"Focus on Indiana's Governor, a Tax Cutter Who Has Become a Tax Raiser" is the headline to a story today in the National section of the Sunday NY Times, complete with a large photo of the Governor accompanied by Mark Lubbers and Harry Gonzo. Some quotes from the beginning of the story by Rick Lyman:

NDIANAPOLIS, Feb. 17 - The Blade, as President Bush dubbed Mitch Daniels when he was White House budget director, has discovered at least one thing since becoming governor of Indiana last month: political alliances are not forever.

Once aligned with fiscal conservatives on cutting taxes and federal spending, Mr. Daniels, in office for just over a month, is now being attacked by his former supporters for proposing a temporary, 1 percent tax increase for Indiana residents making more than $100,000 a year.

"That has gotten a disproportionate amount of attention, for reasons that I completely understand, due to the man-bites-dog nature of it," said Mr. Daniels, 55, as he sat behind his desk in the cavernous governor's office here. "But I honestly don't feel that I snuck up on anybody."

It has been an eventful debut for Mr. Daniels, a long-time Indianapolis resident who was an executive at locally based Eli Lilly before becoming the president's budget director from January 2001 to June 2003, when he left to run for governor.

Almost his first act after assuming office was to declare that his administration would no longer engage in collective bargaining with the union that represents state workers. Then, he asked for the resignations of the members of the state's top policy-making boards and commissions, including those appointed by his Democratic predecessors. Democrats called it an unseemly power grab, which the governor denies.

Posted by Marcia Oddi on Sunday, February 20, 2005
Posted to Indiana Government

General news - Blogging in the news

The Chicago Tribune reports today that "Bloggers blend business with stuff they like: Advertisers take notice of Web logs, especially those that draw large audiences, loyal followers." Some quotes:

John Campea started The Movie Blog, a Web site for amateur movie critics, as a labor of love. Now he's making up to $400 a month running ads on the site.

It's not enough cash for him to quit his job as a law clerk, but it shows the blog world's potential as an advertising venue, a potential that big ad companies have noticed.

Take Starcom MediaVest Group in Chicago. It recently commissioned one of its executives, Dan Buczaczer, to find out how to make blogs attractive to clients like Best Buy.

Starcom figures that blogs, despite their sometimes anarchic nature, are a key way to reach a powerful group known to advertisers as "influencers." * * *

With their ability to form personal connections with readers, blogs are drawing interest from advertisers who would pay dearly to piggyback off the bond between blogger and reader. * * *

Internet advertising is making healthy gains these days. Just look at Internet search engine Google Inc., which recently reported a seven-fold jump in fourth-quarter profits, well above Wall Street's expectations. Google makes its money from advertising. * * *

Like many bloggers, he uses Google's AdSense, a service that automatically matches advertisers with sites based on the content of each. Google splits ad revenue with sites like The Movie Blog, and revenue is based on the number of clicks each ad receives. Campea says he gets about 7 cents per click.

Campea, of Hamilton, Ontario, has no plans to make a living off his blog. Still, he said that would be tempting if traffic to the site--and ad revenue--keeps growing at a strong pace.

Posted by Marcia Oddi on Sunday, February 20, 2005
Posted to General News

Ind. Gov't. - Inspector General bill the focus of story today

"Inspector could get broad powers: Bill seeks unique ability to press criminal prosecution forward" is the headline to this story today in the Sunday Fort Wayne Journal Gazette, by Niki Kelly. Some quotes from the lengthy story:

INDIANAPOLIS – If Gov. Mitch Daniels succeeds, Indiana could have one of the rare state inspector generals – or maybe the only one – with the power to criminally prosecute wrongdoing after obtaining judicial approval.

Daniels has repeatedly touted the fact that 11 states have an inspector general’s office to investigate misconduct by state employees in the executive branch of government. * * *

The Journal Gazette contacted all 11 inspector general offices – from California to Florida – and none have the power to prosecute cases themselves. Instead, they pass their investigations to either the state attorney general or the local prosecutor.

“I knew Indiana was looking at that,” Ohio Inspector General Tom Charles said. “There’s a balance that needs to be found. Politics is always out there and maybe the local prosecutor doesn’t want to get involved. “But I know of nothing like that.”

There has been no opposition to the meat of the bill, which strengthens Indiana’s ethics laws and gives basic authority to the Office of Inspector General to ferret out waste, fraud and misconduct by state employees overseen by the executive branch. * * *

Under the proposed legislation – which is awaiting a vote in the full House – if after 180 days a local prosecutor chooses not to file charges the inspector general can get permission from the governor to proceed with a criminal prosecution.

Before seeking an indictment before a grand jury, however, a Court of Appeals judge must determine whether to allow such a move. A local prosecutor can also argue to that judge why he or she did not file charges.

If the judge agrees with the inspector general, he can move forward with a case.

The original bill contained no judicial oversight but the change was a compromise with the state’s prosecutors.

No ‘super-prosecutor’

David Thomas – the state’s first inspector general – has been in his job since Jan. 10 under the authority of an executive order. But he needs the legislation to further define his authority.

He scoffs at the idea that the bill gives him all-powerful prosecutorial powers. As the Clay County prosecutor for 10 years he said that the local prosecutor still has far more power than he has in his new position.

For instance, the inspector general can charge only four out of about 300 criminal offenses that exist: bribery, official misconduct, conflict of interest and profiteering from public service.

And he can charge state employees only with permission from both the governor and court judge.

“I will not be a super-prosecutor,” Thomas said, referring to a phrase brought up in an initial hearing on the bill. * * *

Daniels said Indiana is different from other states in reference to the inspector general’s prosecutorial power because the state attorney general generally doesn’t have the power to file criminal cases. Many other states do and simply refer their cases to that office. * * *

So why not just give prosecutorial powers to the attorney general, a person elected by the state’s voters rather than appointed by the governor? “I wouldn’t be opposed to it,” Daniels said. “To us this seemed like a more direct way to get where we wanted to go.”

See this Feb. 11th ILB entry for the most recent earlier discussion, and links to the bill and other posts.

Posted by Marcia Oddi on Sunday, February 20, 2005
Posted to Indiana Government | Indiana Law

Ind. Courts - Marion Superior Court presiding judge Cale Bradford

Marion Superior Court presiding judge Cale Bradford is featured today in the Sunday Indianapolis Star's "Five Questions" feature. A sample:

2. What's the biggest drawback to being a judge, and what's the biggest perk?

Isolation from the people that you work with because they are worried about how much contact they can have with you. The upside is your jokes are a lot funnier.

Posted by Marcia Oddi on Sunday, February 20, 2005
Posted to Indiana Courts

Saturday, February 19, 2005

Law - Some say California governor's plan may not produce many more competitive seats

A Jan. 9th ILB entry was headed "Schwarzenegger Proposes Overhaul of Redistricting." A follow-up Feb. 8th ILB entry included these quotes from a NY Times piece:

Analysts say redistricting is one of the causes of two problems that have bedeviled state legislatures and Congress over the past decade. The first problem is the lack of turnover. Aides to both parties say that Republicans have outmaneuvered the Democrats in maintaining an upper hand, particularly in redrawing Congressional district lines. * * * The second problem is the extent to which redistricting contributes to polarization, as map-drawers cluster like-minded voters into the same districts. That makes it less likely that a candidate will work to appeal to swing voters. In those districts, the main worry for incumbents is often not a general election but a primary, because Republicans are more likely to move to the right, and Democrats to the left, to protect themselves.
Two articles in today's papers, however, argue that the California governor's plan may not be the answer. "Governor's plan may not produce many more competitive seats" is the headline to an AP story today. Some quotes:
SACRAMENTO - Gov. Arnold Schwarzenegger's plan to turn over the drawing of legislative and congressional districts to a panel of retired judges could threaten some incumbents, but it won't necessarily produce a lot more competitive seats.

If it does manage to increase the number of districts that either major party can win, it almost certainly will boost campaign spending by, and the political influence of, special interests the Republican governor frequently criticizes, according to research by experts in drawing district lines.

Schwarzenegger has proposed creating more competitive districts as part of his package of plans to overhaul state government and politics, which is expected to be on a statewide special election ballot this fall. Too often, he said, "there is no competition and therefore there is no inspiration for (legislators) to perform well." * * *

Despite Schwarzenegger's desire for more tight races, the increasing division of California - and the nation - into heavily Republican and Democratic areas makes the drawing of a lot of competitive districts difficult, some experts said. * * *

Alan Abramowitz, a political scientist at Atlanta's Emory University who has studied voting trends in congressional races, said the increasing division of the country into Republican and Democratic areas and the financial advantages for incumbents are the two main reasons for lack of competitiveness.

"The larger point is that over time we've seen these trends in California and in the whole country of increasing partisan polarization that has nothing to do with redistricting," he said. "That's more striking in California than in most parts of the country."

That's demonstrated by county-by-county results of presidential elections, Abramowitz said.

In 1976, when Republican Gerald Ford beat Democrat Jimmy Carter in California, only two counties with 8 percent of the state's voters had a margin of more than 20 percentage points between the winner and loser.

But in 2004, when Democrat John Kerry beat Republican President Bush in California, the gap was more than 20 points in 36 counties with 64 percent of voters.

Kerry won in 22 mostly coastal counties, including Los Angeles County and the San Francisco area. Bush took Orange, San Diego, Ventura and 33 other mostly inland counties.

And an OP-ED piece today in the NY Times says much the same. The writer, Steven Hill, says that "several states already use independent commissions, and the results are not encouraging." He continues:
The problem is not who draws the legislative lines - it's where people live. Take a look at a map of California that shows which areas voted for John Kerry and which voted for President Bush. It looks the same as the map for Al Gore and Mr. Bush four years earlier. It will look much the same for the Republican and Democratic candidates in 2008.

As they have in many states, regional partisan leanings in California have become entrenched over the past 20 years, with the heavily populated coastal areas and cities dominated by Democrats and the more sparsely populated interior dominated by Republicans. It's a statewide version of the national political map.

Not that there aren't plenty of Democrats living in mostly Republican areas (and vice versa) - as well as independents and third-party supporters all over. It's just that they are "orphaned voters" whose candidates almost never win. But it's not because of redistricting. It's because regional partisan demographics are exaggerated by the method by which California elects its representatives - the single-seat-district, winner-take-all electoral system. * * *

So Governor Schwarzenegger's plan, while well intentioned, is bound to fail. The old ways of thinking about redistricting and its impact no longer apply in California - nor in many other states. Shifting demographics have outstripped the abilities of the mapmakers to encourage competitiveness.

A nonpartisan redistricting commission may make a few more legislative seats more competitive. And it certainly would have the salutary effect of changing the public perception that incumbents have a hand in rigging their own district lines. But such tinkering is not likely to change much else. It will not "blow up the boxes" of state government, as Mr. Schwarzenegger has said he wishes to do.

It may well be that California's electoral system, like the rest of America's, has reached its endgame. Our current politics are as good as they are going to be as long as we continue to use an antiquated method that is so ill suited for the new California and its wide range of attitudes, demographics and geographic regions.

We can't change where people choose to live, but we can begin using some type of proportional representation system. For example, California could use a system like that in Peoria, Ill., for municipal elections. Instead of electing 40 state senators from 40 districts, voters in 10 districts could elect four senators each. Any candidate who won at least a quarter of the vote would earn a seat. These districts would be far more likely to be bipartisan, even electing some urban Republicans and rural Democrats.

That's the path that the governor should pursue, if he is serious about reforming his state's politics. And it's a path the rest of the nation's governors should examine as well. [my emphasis]

Relevant reading here might include the U.S. Supreme Court's decision in DAVIS v. BANDEMER, 478 U.S. 109 (1986). The synopsis of this case:
The Indiana Legislature consists of a 100-member House of Representatives and a 50-member Senate. Representatives serve 2-year terms, with elections for all seats every two years. Senators serve 4-year terms, with half of the seats up for election every two years. Senators are elected from single-member districts, while representatives are elected from a mixture of single-member and multimember districts. In 1981, the legislature reapportioned the districts pursuant to the 1980 census. At that time, there were Republican majorities in both the House and the Senate. The reapportionment plan provided 50 single-member districts for the Senate and 7 triple-member, 9 double-member, and 61 single-member districts for the House. The multimember districts generally included the State's metropolitan areas. In 1982, appellee Indiana Democrats filed suit in Federal District Court against appellant state officials, alleging that the 1981 reapportionment plan constituted a political gerrymander intended to disadvantage Democrats, and that the particular district lines that were drawn and the mix of single-member and multimember districts were intended to and did violate their right, as Democrats, to equal protection under the Fourteenth Amendment. In November 1982, before the case went to trial, elections were held under the new plan. Democratic candidates for the House received 51.9% of votes cast statewide but only 43 out of the 100 seats to be filled. Democratic candidates for the Senate received 53.1% of the votes cast statewide, and 13 out of the 25 Democratic candidates were elected. In Marion and Allen Counties, both divided into multimember House districts, Democratic candidates drew 46.6% of the vote, but only 3 of the 21 Democratic candidates were elected. Subsequently, relying primarily on the 1982 election results as proof of unconstitutionally discriminatory vote dilution, the District Court invalidated the 1981 reapportionment plan, enjoined appellants from holding elections pursuant thereto, and ordered the legislature to prepare a new plan. Held: The judgment is reversed.
The decision begins:
In this case, we review a judgment from a three-judge District Court, which sustained an equal protection challenge to Indiana's 1981 state apportionment on the basis that the law unconstitutionally diluted the votes of Indiana Democrats. 603 F. Supp. 1479 (SD Ind. 1984). Although we find such political gerrymandering to be justiciable, we conclude that the District Court applied an insufficiently demanding standard in finding unconstitutional vote dilution. Consequently, we reverse.
Notably, "Theodore R. Boehm argued the cause for appellees."

This is a somewhat rambling entry, discussing a problem to which there seems to be no good answers, but to conclude: Two other ILB entries that may provide additional information are this one from 4/29/04, and this one from 5/23/04.

Posted by Marcia Oddi on Saturday, February 19, 2005
Posted to General Law Related

Ind. Gov't. - New state mapping project underway

The Louisville Courier Journal reports today:

Yesterday a new state effort to photograph all of Indiana's 92 counties kicked off. When it is finished later this year, emergency officials will have fresh images that show details such as the new twists and turns along a renovated Interstate 65, along with recently completed subdivisions and other geographic features.

In addition, the quality of the maps will be better. Brad Meixell, of the Clark County Office of Emergency Communications, said the new images will be good enough to point out sidewalks and small sheds on every acre in the county. That provides detail down to a single foot.

Meixell said the images aren't invasive -- they don't raise privacy concerns -- because they won't allow officials to pick out a person in a backyard, or see through windows.

Planes started crisscrossing the state yesterday to begin taking more than 50,000 high-quality digital photographs for the effort, called the 2005 Statewide Color Orthophotography Project.

The flyovers are done in the winter so vegetation doesn't obscure the view of the ground. Organizers started in Southern Indiana, where spring arrives earliest.

Supporters of the project said the maps will be valuable tools for police and fire departments, land surveyors, highway planners and people who do environmental monitoring.

The State's GIS page is available here. Take a look at this picture of the Circle in downtown Indianapolis, and this one of the Indianapolis Motor Speedway.

While on the subject of mapping, Google has a new beta - Google Maps. I typed in my street address and zip and instantly retrieved a map of my neighborhood. Check out Take a Tour.

Posted by Marcia Oddi on Saturday, February 19, 2005
Posted to Indiana Government

Ind. Decisions - More on Wednesday's lesbian child support ruling

Charles Wilson of the AP has a story today, available in the Louisville Courier Journal, headlined "State appeals court orders lesbian mother to pay child child support." The decision is In re the adoption of two minor children: Julie Mariga v. Lori Flint (2/16/05 IndCtApp) - access the ILB entry here. Some quotes from the AP story:

INDIANAPOLIS -- A lesbian who split with her partner after adopting the woman's biological children must pay child support, the Indiana Court of Appeals has ruled.

The ruling came less than 90 days after the court granted child-visitation rights in another case to a Bloomington, Ind., woman who had broken up with her domestic partner.

"Whether a parent is a man or a woman, homosexual or heterosexual, or adoptive or biological, in assuming that role, a person also assumes certain responsibilities, obligations and duties," Judge John Baker wrote in the 22-page ruling.

"That person may not simply choose to shed the parental mantle because it becomes inconvenient, seems ill-advised in retrospect, or becomes burdensome because of a deterioration in the relationship with the children's other parent."

Posted by Marcia Oddi on Saturday, February 19, 2005
Posted to Ind. App.Ct. Decisions

Ind. Courts - Former judge Kouros to work for Lake County prosecutor

The Munster (NW Indiana) Times reports today, via a column by Mark Kiesling:

Unlike Elvis, Lake County Judge Joan Kouros will not be leaving the building when she involuntarily steps down Feb. 25.

Well, technically she won't be in the courts building in Crown Point, but she will remain employed by Lake County government in the prosecutor's office.

Prosecutor Bernie Carter confirmed Thursday he's offered Kouros -- who was removed from the bench by the Indiana Supreme Court -- a job as a deputy prosecutor in the office's child support division in Gary.

"She is a very intelligent person who had problems on the bench with her management skills," Carter said in a kind understatement. "It's important we put her in a position where she is not in management at all. Some people are not made to be judges and in the long run, I think she knew that, too."

Her car, like her office, was filled with so much uncompleted paperwork that another judge was moved to once remark that if she were in a car wreck, she'd die of paper cuts.

When Kouros was taken off the bench and replaced temporarily by retired Porter Superior Court Judge Tom Webber, she went to Carter and asked him about getting a job, the prosecutor said.

Posted by Marcia Oddi on Saturday, February 19, 2005
Posted to Indiana Courts

Ind. Gov't. - Déjà Vu? Illinois gaming board may be booted

It sounds familiar, but it is Illinois, not Indiana. The Evansville Courier& Press reports today:

CHICAGO - Gov. Rod Blagojevich's suggestion that he might overhaul or even eliminate the Illinois Gaming Board drew warnings Friday from the gambling industry, which said doing so without legislative approval could violate state law, and criticism from a key lawmaker, who said the governor wasn't providing enough details.

The state's gambling regulatory board has been unable to take any official action for the past six months, ever since resignations left it with only two members - one short of a quorum. The result has been millions of dollars in construction and untold numbers of jobs left on hold.

Posted by Marcia Oddi on Saturday, February 19, 2005
Posted to Indiana Government

Friday, February 18, 2005

Ind. Law - Still more on proposed zoning changes in Adams County; More

The ILB has had two earlier entries (1/29/05 and 2/3/05) from The Decatur Daily Democrat, written by J. Swygart on proposed changes to land use regulations in Adams County, including the land application of livestock manure. Today Mr. Swygart has a third story, reporting that the "Zoning update is due soon." Some quotes:

The first update to the Adams County zoning ordinance since 1996 will be submitted to county commissioners within the next two weeks, following approval by the Adams County Plan Commission on Thursday evening of a host of changes to the 140-page document. * * *

Final changes approved by the commission on Thursday dealt primarily with agricultural issues, including revised requirements for the permit process for intensive livestock operations and easing the setback requirements for manure application by smaller farming operations.

A proposal that would have required a 600-foot setback from residential properties for manure application by non-intensive livestock producers was relaxed after some Amish farmers said they would be hard-pressed to obey the regulations.

"If I have two acres and a horse, I could have trouble getting rid of my manure," said one Amish farmer of the proposed restrictions.

Added another member of the Amish community, "I couldn't haul my manure; I'd have to move my barn."

The board was also questioned about several similar provisions in the zoning ordinance in which the county was more restrictive than the Indiana Department of Environmental Management.

Plan Commission Attorney Dan Burry said IDEM "doesn't care about neighbors."

Added Adams County Building and Planning Director Neil Ogg, "IDEM can't smell manure from Indianapolis."

Not included in the plan commission's recommendation was any mention of the hiring of a full-time county plan director. That proposal has been urged by the local Farm Bureau organization and others.

A story earlier this week in the Democrat, also by J. Swygart, reports that "IDEM grants Berne two deadline extensions." Some quotes:
The Indiana Department of Environmental Management (IDEM) has granted the city of Berne extensions of 30 and 60 days for the submittal of a pair of key documents pertaining to ongoing water and sewer woes in the municipality.

City Attorney Bob Biberstein on Monday told council that IDEM has granted a 30-day extension for the city to sign off on an "agreed order" that would allow the city to trade sanitary sewage capacity at the municipal wastewater treatment plant in exchange for projects that eliminate combined sewers. That document, originally due on Feb. 15, must now be submitted to IDEM by March 15.

City engineering consultant Kevin Allen said in December that enrollment in IDEM's Sewer Credits Program would allow "a significant number of (private development) projects" to proceed.

Biberstein on Monday also reported that a 60-day extension was approved by IDEM for the city's filing of its Long Term Control Plan (LTCP), a document outlining proposed improvements to eliminate Combined Sewer Overflows within the city. The document must now be submitted by April 15.

IDEM officials, in a letter dated March 5, 2004, had rejected - for a second time - the city's LTCP. That plan, prepared and submitted by former city engineer Andy Dodzik in December of 2003, outlined how the city intended to achieve compliance with combined sewer overflow regulations.

State officials rejected the proposal, saying the engineering work contained in the report was insufficient to support its findings.

Berne - which has been in violation of some IDEM mandates since the late 1980s - fell further into disfavor with IDEM in October of 2002, when the state agency notified the city of a 90 percent "early warning" action addressing capacity at the waste water treatment plant and alerting officials that a state-imposed, citywide building ban could be enacted if measures were not taken to address capacity at the plant.

This story is related to the information in this earlier ILB entry, from December, quoting again from the Democrat:
The city of Berne has been involved for years in seemingly endless battles with the Indiana Department of Environmental Management -- as well as local developers -- revolving around sewage treatment capacity, stormwater and combined sewer overflow (CSO) issues.

Now it has come to light that many of those battles -- including circumstances that led to a ban on new construction within the city -- could have been avoided.

Posted by Marcia Oddi on Friday, February 18, 2005
Posted to Environment | Indiana Law

Ind. Law - More on the ten abortion bills

Updating yesterday's entry is some additional information.

An AP story today points out:

The General Assembly last approved significant abortion legislation in 1995, when it enacted an 18-hour waiting period for women seeking abortions and mandated in-person counseling from an abortion provider. The Indiana Court of Appeals in September ordered a trial judge to hear evidence on whether the law infringes upon a woman’s right to privacy. The case remains pending.
Here is the Sept. 17th, 2004 ILB entry on that decision, Clinic For Women, Inc., et al v. Carl J. Brizzi, et al (9/17/04 IndCtApp). The Court of Appeals panel voted 2-1 to send the case back to the Marion Superior Court "for the purpose of determining whether the requirements of the informed consent statute impose a material burden on the core constitutional value of privacy." However, the Supreme Court granted transfer (thereby vacating the Court of Appeals decision) on Jan. 28th, 2005 - see the ILB entry here.

Posted by Marcia Oddi on Friday, February 18, 2005
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending February 18, 2005

Here is the Indiana Supreme Court's transfer list for the week ending February 18, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column. No transfers were granted this week.

Posted by Marcia Oddi on Friday, February 18, 2005
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals posts five today, including the hands-down winner of case-name of the year

Tanya D. Merritt v. State of Indiana (2/18/05 IndCtApp) [Criminal Law & Procedure]
Riley, Judge

STATEMENT OF CASE. Appellant-Defendant, Tanya D. Merritt (Merritt), appeals her conviction for Count I, possession of cocaine, a Class D felony, Ind. Code § 35-46-4-6; and Count II, reckless possession of paraphernalia, a Class B misdemeanor, I.C. § 35-48-4-8.3(c). We reverse and remand.

ISSUES. Merritt raises three issues on appeal, one of which we find dispositive and restate as follows: whether fundamental error occurred during voir dire when the trial court gave the jury venire an example of constructive possession that was similar to the facts of the case. * * *

CONCLUSION. Based on the foregoing, we find that prejudice resulted from the trial court’s constructive possession example, and that fundamental error occurred. Reversed and Remanded.
CRONE, J., and ROBB, J., concur.

$100 and a Black Cadillac, VIN 1G6K52B3PU807567 and Abbie Ellenstein v. State of Indiana (2/18/05 IndCtApp) [Criminal Law & Procedure]
May, Judge
Abbie Ellenstein appeals the forfeiture of her Cadillac pursuant to Ind. Code § 34-24-1-1 (“the forfeiture statute”). She raises two issues on appeal, which we reorder and restate as: (1.) Whether the evidence is sufficient to support the trial court’s finding Ellenstein must forfeit the Cadillac; and (2.) Whether the forfeiture statute is unconstitutional.
We affirm. * * *

Conclusion. Ellenstein’s plea of guilty to dealing in marijuana as a Class A misdemeanor under Ind. Code § 35-48-4-10(a)(2)(C), based on her arrest for possessing one pound of marijuana in her Cadillac, was sufficient evidence by which the court could determine the Cadillac had been used to “transport” “a controlled substance” for the purpose of committing dealing in marijuana in violation of Ind. Code § 35-48-4-10. Ind. Code § 34-24-1-1(a)(1)(A)(viii).

Ellenstein’s arguments regarding the constitutionality of the forfeiture statute either were waived or failed on their merits. Accordingly, we affirm the forfeiture of Ellenstein’s Cadillac. Affirmed.
VAIDIK, J., concurs.
SULLIVAN, J., concurs as to Part 2(a), 2(b), 2(c), 2(d), 2(f) and 2(g); concurs in result as to Parts 1 and 2(e).

J Squared, Inc., et al. v. Daniel Herndon (2/18/05 IndCtApp) [Employment Law]
Najam, Judge

J Squared, Inc. d/b/a University Loft Company (“ULC”) appeals from the trial court’s judgment in favor of Daniel Herndon on his complaint seeking payment of commissions following the termination of his employment with ULC. The trial court awarded Herndon compensatory and liquidated damages and attorney’s fees. ULC presents the following issues for our review. [1.] Whether the trial court erred when it concluded that Herndon was entitled to the disputed commissions. [2.] Whether the trial court erred when it concluded that Herndon was entitled to liquidated damages and attorney’s fees under the Indiana Wage Claims Statute. We affirm. * * *
KIRSCH, C.J., and VAIDIK, J., concur.

Cynthia Watson v. Auto Advisors, Inc. and T.G. Klota
(2/18/05 IndCtApp) [Torts]
May, Judge
Cynthia Watson appeals the trial court’s grant of the motion to dismiss filed by Auto Advisors Inc. and Thomas G. Klota. Watson’s complaint alleged the failure of Auto Advisors and Klota to be represented by an attorney in a previous small claims court action against Watson rendered the small claims court’s judgment in favor of Klota void and rendered his small claims action against her malicious prosecution, abuse of process, statutory deception, a frivolous action, unauthorized practice of law, and a violation of the Federal Fair Debt Collection Practices Act (“FDCPA”). Watson raises one issue, which we expand and restate as: [1} Whether the trial court erred in dismissing Watson’s claim to the extent it requested the court declare void a prior small claims court judgment in favor of Klota; and [2] Whether the trial court erred in dismissing Watson’s claim to the extent she asserted the defendants brought a frivolous lawsuit, violated the FDCPA, and committed unauthorized practice of law, malicious prosecution, abuse of process, and statutory deception. We affirm. * * *

Watson may not collaterally attack the validity of the Small Claims Court’s judgment in favor of Klota. By failing to provide any argument on appeal, Watson waived her arguments regarding statutory deception and the bringing of a frivolous action, and defendant’s alleged violations of 15 U.S.C.A. §§ 1692d, 1692e, 1692f, and 1692g. The facts most favorable to Watson do not support a cause of action for unauthorized practice of law, malicious prosecution, abuse of process, and violation of § 1692j of the FDCPA. Accordingly, we cannot say the Superior Court erred when it dismissed Watson’s claims. Affirmed.
SULLIVAN, J., and VAIDIK, J., concur.

Robert Higginbotham v. Kathryn Higginbotham (11/5/04 IndCtApp) [Family Law]
[Initially NFP]
Baker, Judge
Appellant-petitioner Robert Higginbotham, appeals the trial court’s order regarding custody of his minor daughter, K.H., in favor of appellee-respondent Kathryn Higginbotham. Specifically, Robert raises three issues, which we consolidate and restate as whether the trial court abused its discretion by: (1) rejecting the parties’ agreement to continue joint legal custody; and (2) terminating Robert’s midweek visitation and conditioning its resumption upon K.H. showing vast improvement in her scholastics. Finding no error, we affirm. * * *
KIRSCH, C.J., and ROBB, J., concur.

Posted by Marcia Oddi on Friday, February 18, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts two today

Kelso, Ted v. Bayer Corporation (ND Ill.) [6 pp.]

Before BAUER, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Ted Kelso sued Bayer Corporation for strict product liability, alleging that the warning Bayer provided on its Neo-Synephrine 12 Hour Extra Moisturizing Spray was defective. The district court granted Bayer summary judgment. Kelso appeals. We affirm. * * *

Kelso used Neo-Synephrine for more than three years, resulting in permanent injury. However, because Bayer clearly and explicitly warned consumers not to use Neo- Synephrine for more than three days, Kelso’s product liability claim for failure to warn fails. We AFFIRM.

Fuller, Mark v. USA (WD Wis.) [15 pp.]

Before BAUER, COFFEY, and KANNE, Circuit Judges.
COFFEY, Circuit Judge. Mark Fuller was charged with making a false statement to a financial institution for the purpose of influencing his application for an overdraft protection loan in violation of 18 U.S.C. § 1014. He subsequently entered into a plea agreement and, after a hearing, was sentenced to 46 months’ imprisonment and five years’ supervised release. Thereafter, he filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that his trial counsel had rendered ineffective assistance at his withdrawal of guilty plea and sentencing hearings. The district court denied Fuller’s motion, ruling that his claims were barred because they had been fully decided in his direct appeal. We affirm.

Posted by Marcia Oddi on Friday, February 18, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Gay marriage ruling wll not be appealed to Supreme Court

"Same-sex marriage ban stands: 3 gay couples say they won't take ruling that upholds law to the state's Supreme Court" is the headline to a story today by Tim Evans in the Indianapolis Star. The case is Ruth Morrison, et al. v. Sadler (1/20/05 IndCtApp). Access the Jan. 20th ILB entry and case link here. For commentary, see this Jan. 21st entry.

Today's story quotes one of the plaintiffs:

"We are in no way admitting defeat," said Dawn Egler. "We are simply choosing to redirect our energy."

Their new focus, she said, will be on helping to defeat a state constitutional amendment that would bans same-sex marriage.

Legislation starting the amendment process has been approved by the Senate's Committee on Corrections, Criminal and Civil Matters and could be voted on next week by the full Senate.

Approval by the legislature this year would be the first step in the process, which requires legislative approval again in 2007 or 2008 and a public referendum, before the amendment becomes law. The earliest it could come up for a public vote is November 2008.

Dawn Egler said the couples spoke to several people about making an appeal to the state Supreme Court.

"They all agreed that the risk of moving forward outweighed the benefits," she said.

The downside included the possibility of an unfavorable ruling, which would set a legal precedent that could hinder future challenges -- and an anti-gay backlash.

"If the plaintiffs had appealed and lost, the Supreme Court decision would have had influence beyond Indiana's borders. Just as the Indiana appellate court quoted from the legal opinions of sister states in its decision, so sister states could use an Indiana Supreme Court decision to deny same-sex families marriage-based rights," said Jennifer A. Drobac, an associate professor at the Indiana University School of Law-Indianapolis.

Posted by Marcia Oddi on Friday, February 18, 2005
Posted to Ind. App.Ct. Decisions

Thursday, February 17, 2005

Econ. Dev. - Indiana kills anti-muni broadband bill

"Indiana kills anti-muni broadband bill" is the headline in this ZDNet story this afternoon. Some quotes:

An Indiana state bill that would have made it hard for cities to build their own broadband networks was killed on Wednesday after the proposal failed to reach a vote in the state's House of Representatives.

The decision to block Indiana's House Bill 1148 highlights a growing clash between cities looking to build their own broadband Internet networks and local phone and cable companies opposing these measures.

Supporters of the bill, including SBC Communications, which serves Indiana, were critical of the outcome. Local groups opposing the bill applauded the decision, claiming that building broadband networks would help cities attract more businesses into the area.

"Several municipalities in Indiana are already providing broadband service," said Andrea Johnson, a spokeswoman for the Indiana Association of Cities and Towns, lobbyist organization. "We consider it a necessary part of economic development."

Johnson pointed out that smaller cities such as Marion and Scottsburg have unveiled their own municipal networks. * * *

The public debate
Interest in public Internet systems is increasing across the country. Proposals are springing up in smaller cities such as Provo, Utah, and Chaska, Minn., and larger metropolises such as Philadelphia and parts of Los Angeles.

At the same time, the Baby Bell phone giants and cable conglomerates are aggressively lobbying state legislators to introduce laws prohibiting these efforts. In December of last year, a bill endorsed by Verizon Communications was signed into law by Pennsylvania Gov. Ed Rendell, banning cities and townships from providing "any broadband or wireless services if a fee is charged."

The bill was hotly contested by the city of Philadelphia, which plans to build its own wireless broadband network and sell it to residents at a significant discount from Verizon's DSL service. Verizon argued that cities should not be competing with private companies and that residents would see higher taxes if the network went belly-up. Philadelphia and Verizon eventually struck an 11th-hour agreement that would allow the city to go ahead with its plans.

Posted by Marcia Oddi on Thursday, February 17, 2005
Posted to Indiana Law | Indiana economic development

Env't. - More on blue bag waste site in Northwest Indiana

There may be more to learn about the blue bag waste site in Northwest Indiana where waste from Chicago is disposed, according to another story today in the Chicago Tribune by reporters Laurie Cohen and Dan Mihalopoulos. Some quotes:

The northwest Indiana farm that receives truckloads of waste from Chicago's blue bag recycling centers accepted six times more of the material than it reported spreading on its fields, records show.

Indiana authorities said this week that they are looking into the discrepancy and trying to determine whether the farm's operator is dumping more of the material on his fields than is allowed.

The questions center on Back 2 Basics of Indiana, a facility that plays a crucial role in Chicago's controversial blue bag program.

Chicago shipped more than 145,000 tons of screened yard waste--grass clippings mixed with pencils, pens, plastic shards and other garbage fragments--from recycling centers to Back 2 Basics between February 2003 and November 2004, city records show.

But Back 2 Basics reported dumping only about 24,000 tons at farmland near Lowell, 30 miles south of Gary, during that same period, according to a Tribune analysis of the company's filings with Indiana regulators.

"That does appear to be a discrepancy," said Bruce Palin, a deputy assistant commissioner for the Indiana Department of Environmental Management in Indianapolis. "That's an issue we're looking into." * * *

Palin said his agency became concerned after reading a Tribune story last month that described how much of the material is shipped to Back 2 Basics.

Indiana officials contacted Chicago's Streets and Sanitation Department, which provided the figures. A Streets and Sanitation spokesman said the numbers reported in the Tribune were accurate.

Palin declined to say whether receiving so much of the Chicago material would put Sanko in violation of his state-issued permit. Sanko's state permit limits the amount of nitrogen and pollutants such as lead that he is allowed to spread on his fields.

Palin also declined to comment on what penalties [operator Nathan] Sanko might face for inaccurate reporting.

Officials in Lake County, Ind., recently accused Back 2 Basics of operating without proper zoning. That issue will be decided in court. * * *

Dan McInerny [of Bose McKinney & Evans LLP], a lawyer for Sanko, said he spoke to Indiana regulators Wednesday, telling them that the screened waste is vegetative matter. McInerny said he did not know how Sanko disposes of the material after it is composted.

An Indiana inspector visited the site in 2000 and found the material studded with "pencils, ballpoint pen barrels, garter snaps, hairpins, pop can pull tabs, nuts, bolts, screws, candy wrappers, plastic spoons and forks, straws, etc." In an interview in December, Sanko said the material is only 40 percent to 50 percent organic.

For background, see these ILB entries from Jan. 13th and Jan. 14th.

Posted by Marcia Oddi on Thursday, February 17, 2005
Posted to Environment

Adm. Law - "Statutes that are not Static - The Case of the APA"

This paper, by Peter L. Strauss, Columbia Law School, forthcoming in the Journal of Contemporary Legal Issues, Vol. 14, No. 2, February 2005, is available online via SSRN. Access it via this page. Here is the abstract:

Judges interpreting statutes evidence a certain ambivalence whether they are interpreting the texts before them as artifacts whose meaning was fixed as of their date of enactment, or as present-day texts whose meaning may be shaped by subsequent events - whether intervening judicial decisions, or the adoption of new statutes (as distinct from amendments, an easy case) whose instructions bear on the issues they present. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council stridently referred the meaning of the Administrative Procedure Act's rulemaking provision back to the political compromise struck at its enactment in 1946; the opinion insisted that judges are not free to vary its terms by common-law improvisations based on their reasoning about the procedural needs of contemporary rulemaking. Motor Vehicle Mfrs' Assn v. State Farm Mutual Auto Ins. Co. almost as impatiently dismissed the argument that judicial standards for reviewing agency rulemakings are those that prevailed when the APA was enacted (equating review of rulemaking with highly permissive review of economic legislation), rather than the "hard look" understandings that had grown up in the 1970s, primarily in the D.C. Circuit. The particular tension has long been a puzzle for administrative law scholars; yet it seems to reflect a general unease about how judges ought best interpret Congress's words as they age.

This essay explores that tension, first in the context of thoughts about the judicial-legislative interface appearing in the literature, both today's and yesterday's, and then using the concrete APA example. It argues that in its very occasional forays into the construction of particular statutes, the Supreme Court should accord substantial weight to contemporary consensus the profession and lower courts have been able to develop in interpreting law. The dominant characteristic of particular statutory issues in the Court today is that they are very infrequently, and usually tardily, presented. The Court's certiorari choices, like the contemporary Congress's legislative choices, are driven by the disputes that are live and important at any given moment. If the uncontroversial does not command the Court's attention, it nonetheless becomes a part of the living law known to lawyers advising clients, to Congress choosing its legislative opportunities, to agencies deciding how to make procedural choices, and to lower courts that cannot so easily evade the responsibilities of decision. Were the Court honestly to face the implications of its reservation of authority to choose which statutory issues to consider, it might conclude that its refusal to credit intervening statutory and lower court case-law developments, more than its insistence on a static view of original meaning, profoundly mistakes its proper contemporary role.

Posted by Marcia Oddi on Thursday, February 17, 2005
Posted to Administrative Law | Environment

Ind. Gov't. - Daniels' thick skin gets pinched in early going

Occasional Indianapolis Star columnist, and former editorial page editor Andrea Neal had a great opinion piece yesterday, headlined "Daniels' thick skin gets pinched in early going." She points out that criticism of Daniels "has been of two types, the first fully anticipated by Daniels in response to difficult decisions and priority setting that had to occur in the face of a $600 million deficit." She continues:

But the second type of criticism caught Daniels and Co. off guard. And it's resulted from political blunders that could have been avoided had administration officials known the principles of Communication 101.

Two examples: the publicly aired disappointment of state board and commission members who received terse letters from Daniels' staff requesting their resignations when they deserved gracious thank-you notes; and the dismay of Hoosiers to learn their new governor -- My Man Mitch during the campaign -- had no plans to live in the state-provided governor's residence, but was about to build a multimillion-dollar home in a gated Carmel subdivision. At one point, Chief of Staff Harry Gonso said selling the North Meridian Street governor's home was a possibility.

If tone is important, timing is everything. Both incidents displayed insensitivity to those basic principles of communication. * * *

All of the criticism is predictable for an administration that is both inexperienced at the subtle points of governing and committed to bold decision-making. Daniels himself said he would make mistakes along the way. The alternative, as Hoosiers recognized in November, is status-quo leadership that dares nothing so as not to fail. * * *

It's been a rough start, but important lessons have been learned. The aide's pre-inaugural advice holds as true today as it did in early January. Keep a thick skin, and stay focused on mission.

Posted by Marcia Oddi on Thursday, February 17, 2005
Posted to Indiana Government

Ind. Decisions - 7th Circuit posts one today

USA v. Greene-Thapedi (ND Ill.) [10 pp.]

Before WOOD, EVANS, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. For three years running, Llwellyn Greene-Thapedi failed to file her income tax returns in time. After processing her multiple late returns, the Internal Revenue Service (IRS) issued her a refund check in the amount of $17,028. Later, it discovered that she was not entitled to this check after all. After unsuccessful attempts to recover the funds from Greene-Thapedi, the government brought this lawsuit. The district court held that the government filed its claim within the allowable time and that it was entitled to recoup most of the refund it had issued to Greene-Thapedi. We affirm.

Posted by Marcia Oddi on Thursday, February 17, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Telecommunications deregulation advances; proposed limits on municipally-offered internet services dead, for now

According to this story today by Eric Martin in the business section of the Indianapolis Star:

The House Technology, Research and Development Committee on Wednesday moved Indiana one step closer to deregulating the telecommunications industry by 2010.

By a vote of 9-2, with one abstention, the committee passed House Bill 1518. Michael Murphy, R-Indianapolis, the bill's author and chair of the committee where it was heard, said he expects the bill to pass after he takes it to the full House for consideration next week.

Supporters of the deregulation bill say SBC and Verizon need the freedom so they can better compete with companies that provide cable, cellular phone service and electricity -- all of which are providing or planning to provide largely unregulated data and voice services that eat away at traditional phone companies' customer base.

Opponents, like Rep. Matt Pierce, D-Bloomington, worried the bill would remove the state's regulatory powers at a time when many companies maintain monopolies in rural areas and could raise prices there.

The story also reports:
The House Local Government Committee on Wednesday killed a related bill that would have effectively prohibited municipalities from offering their own Internet and data services.

Proponents of House Bill 1148, led by SBC Communications, said the legislation would preserve taxpayer money and maintain fair competition. But communities and consumer groups vehemently opposed the bill, contending that telecom companies like SBC were simply trying to solidify their dominance.

For background, see this Feb. 1st ILB entry, which covers both proposals.

Posted by Marcia Oddi on Thursday, February 17, 2005
Posted to Indiana Government | Indiana Law | Indiana economic development

Ind. Law - Ten bills rekindle abortion debate

"10 bills rekindle abortion debate: House panel OKs effort to license clinics, set age for viability of fetus," is the headline to this story by Michele McNeil and Rob Schneider in today's Indianapolis Star. Some quotes:

Legislation that critics fear will chip away at a woman's abortion rights stands its best shot in nearly a decade now that Republicans control the Statehouse.

*** [A]n Indiana House committee -- under GOP control for the first time since 1996 -- endorsed legislation Wednesday that would require abortion clinics to be licensed and inspected once a year. The bill also declares that a fetus is viable at 20 weeks -- in what may be a first in the nation.

The bill now advances to the full House for consideration.

An abortion-related bill also advanced in the Senate, as a committee endorsed legislation requiring that a woman be offered the chance to see an ultrasound and hear a heartbeat before the abortion.

Those are among at least 10 bills introduced this session dealing in some way with abortion or pregnancy.

The story includes a table on the status of the ten bills:
Abortion bills' status. Legislative panels have approved two abortion bills so far this session:

• Regulation/viability: House Bill 1607 would require the Indiana State Department of Health to license and inspect most abortion clinics yearly. It was combined Wednesday with House Bill 1690, which would deem that a fetus is viable at 20 weeks.
• Abortion procedure: Senate Bill 76 would require that an abortion provider tell the woman that she can see an ultrasound of the fetus and hear the heartbeat before the procedure.

Proposed bills. A number of abortion- and fetus-related bills have been proposed this session but have not yet been voted on by a House or Senate committee:

• Regulation: Senate Bill 393 would require some abortion providers to develop their own health rules. Senate Bill 568 would deem abortion clinics "outpatient surgical centers," which would require many of them to upgrade their facilities.
• Procedure: House Bill 1675 would require an abortion provider to inform a woman whose fetus is at least 20 weeks old that anesthesia is available for the fetus.
• Neglect: House Bill 1755 and Senate Bill 70 would make it a Class D felony for a pregnant woman to knowingly take a controlled substance such as codeine without a prescription.
• Drugs: Senate Bill 48 would allow employees, such as a pharmacist, to refuse to participate in the sale of abortion or birth control drugs. It would also allow health care workers to refuse to participate in an abortion.
• Education: Senate Bill 166 would require public schools to incorporate fetal development and information about the health consequences of an early termination of pregnancy into their curriculum.

A companion story by Diana Penner is headlined "State may be 1st to establish viability of fetus: Legal and medical experts say bill raises ethical questions and could affect neonatal care." Some quotes:
A bill before Indiana lawmakers could create the first law of its kind in the nation, legally establishing a specific point of viability for an unborn child -- 20 weeks of gestation.

The bill also raises a myriad of legal questions that could affect abortion, neonatal care, crimes and even traffic accidents.

A pregnancy is considered full term at 40 weeks. In Indiana, a woman can choose an abortion without restriction through 16 weeks of pregnancy; after that, the procedure must be deemed necessary to protect the life or health of the woman.

In 2002, 10,937 abortions were performed in the state, down from 11,873 in 2001.

Originally introduced as a separate bill by Reps. P. Eric Turner and Tim Harris, both Republicans representing Marion; Jeff Thompson, R-Lizton; and Peggy Welch, D-Bloomington, House Bill 1690 was folded into another abortion-related bill that passed out of committee on Wednesday and now moves to the full House. * * *

Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania in Philadelphia and one of the nation's leading medical ethicists, said he knows of no other state that establishes the viability of a fetus or baby. Moreover, he said, viability is a medical question that has to be addressed individually, and no medical experts suggest a baby born as early as 20 weeks is viable. * * *

The proposed law says a "fetus that is at least 20 weeks of age . . . is presumed to have attained viability" and that "no additional medical evaluation is required to establish the fetus's viability."

That language could be construed to ban any abortion after 20 weeks and conversely mandate all conceivable medical interventions for a baby born prematurely after 20 weeks, Caplan said.

The bill also could have implications in criminal cases involving assaults on pregnant women, or even traffic accidents in which women who are at least 20 weeks pregnant are injured, said Ken Falk, legal director for the Indiana Civil Liberties Union. Falk also was not familiar with the bill, but said it could trigger a host of implications. "Case law does not recognize life until birth," Falk said.

See this related Nov. 18, 2004 ILB entry on wrongful death issues with respect to a fetus.

Posted by Marcia Oddi on Thursday, February 17, 2005
Posted to Indiana Law

Environment - Northwest Indiana redevelopment issues

Two stories today from Munster (NW Indiana) Times show the impact of decisions made in Indianapolis on that area's redevelopment potential.

"Mitchell power plant deal open to hearing" is a story by Keith Benman that reports:

The City of Gary will get to plead its case for taking possession of the Dean H. Mitchell Generating Station at a hearing today before the Indiana Utility Regulatory Commission.

The commission will be hearing about a November deal between the city and Northern Indiana Public Service Co. to put the mothballed power plant in city hands. The hand-off will only take place if the city can come up with the money to take the 59-year-old power plant down.

Gary Mayor Scott King wants to raze the plant for expansion of an airport runway as well as future development.

The Indiana Utility Regulatory Commission must approve the deal, because it regulates all NIPSCO activities which might affect power prices for customers.

A second story reports:
Lt. Governor Becky Skillman announced the approval of a $50,000 Innovations grant to Highland's Multiserv Corp., Purdue University and the Indiana Department of Transportation.

The grant, administered through the Indiana Recycling and Energy Development Board will be used to test and determine how steel slag from Indiana's steel mills can be reused.

"Currently there is 400,000 tons of steel slag in Lake County," Skillman said. "We need to find ways to recycle it. We hope that, through the collaborative efforts of Purdue, Multiserv and INDOT, we might turn this waste into new materials."

Earlier ILB entries related to the above stories include:

Posted by Marcia Oddi on Thursday, February 17, 2005
Posted to Environment

Ind. Decisions - More on yesterday's adoption decision

Richmond attorney E. Thomas Kemp, of Kemplog, has posted some interesting commentary on yesterday's Court of Appeals decision - In re the adoption of two minor children: Julie Mariga v. Lori Flint (2/16/05 IndCtApp) - scroll down or use this link to the ILB entry.

Posted by Marcia Oddi on Thursday, February 17, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Must read" series on tax fraud case before Judge Young

"Judge rejects embezzlement plea deal: Defendant didn't face any restitution" is the headline to a story today in the Louisville Courier Journal. Some quotes:

EVANSVILLE, Ind. -- A federal judge has rejected a plea agreement under which an accountant charged with embezzling $370,000 in tax payments from an Evansville business would not have to repay any of the money.

The owner of the paving business from which the money was stolen says he has been unfairly billed by the Internal Revenue Service for nearly $1 million. The [IRS] claims he still owes the taxes, plus penalties, fines and interest.

Michael G. Titzer, 52, had reached an agreement to plead guilty to stealing the money from TD&O paving, and he is in jail awaiting sentencing. The funds were supposed to have been used to pay federal employment tax withholdings.

The plea agreement called for him to spend less than four years in prison and forgo making restitution. That would allow him to keep the $170,000 house that authorities say he bought using the stolen money. It is now listed in his wife's name.

But U.S. District Judge Judge Richard Young rejected the deal after learning that company owner Dennis Owens would be forced to pay the IRS for the tax money that Titzer stole.

"This deal doesn't strike me as fair or just," he said. * * * "I'm trying to put myself in or somebody I know in the position of this paving company," Young said at the hearing. "I'd be darned upset about this (plea deal) if I was driving down the street looking at a $170,000 house that I'm paying for, and somebody's living there off my hard-earned money."

Maureen Hayden of the Evansville Courier& Press broke this story on Sunday, Feb. 13th. Some quotes from that story:
When an Evansville-based asphalt company hired accountant Michael G. Titzer to do its tax work, it likely knew of no reason to worry.

Titzer, after all, had spent 20 years as the owner of a local franchise of a well-known national tax preparation service company, helping hundreds of area individuals and small businesses navigate their way through a sea of tax law. In 1999, when Titzer formed his own tax consulting company, the asphalt company didn't know the real reason for the move. Nor did it know until almost two years into the relationship with Titzer that instead of helping the company meet its tax obligation, Titzer was pocketing the tax money.

By the time he was caught, Titzer had stolen $370,000 that was supposed to have been used to pay the asphalt company's federal employment tax withholdings. Titzer, who recently pleaded guilty to tax and bank fraud charges in federal court, is in jail awaiting sentencing. He says the money he stole is gone, which is bad news for the owners of the asphalt company, because as far as the federal government is concerned, they still owe $370,000 in back taxes.

In a story published yesterday, Feb. 16th, Hayden writes:
Dennis Owens thought he knew what it was like to be victimized after his accountant faked a case of terminal cancer and stole $390,000 in tax payments from Owens' road-paving business, using a chunk of the stolen money to buy a $170,000 house.

But Owens says he didn't know the meaning of victim until the federal government stepped in. Now the IRS is going after Owens for almost $1 million, claiming he still owes them for the stolen tax money plus penalties, fines and interest. But federal prosecutors and the IRS say the accountant - who admitted in court he bilked Owens - can keep the house bought with the ill-gotten gains and won't have to pay back a nickel of stolen loot.

Owens doesn't think that's fair. Neither does U.S. District Judge Richard L. Young. When presented with a plea deal two weeks ago that would have allowed the accountant, Michael G. Titzer, 52, to spend less than four years in prison and forgo making restitution, Young rejected the deal and instructed the federal prosecutor to go back to work. Young also learned that Owens would [not] be forced to pay the IRS for the taxes that Titzer stole.

"This deal,'' said Young, "doesn't strike me as fair or just."

Young ordered the parties back into court today, but just moments before federal court closed Tuesday, federal prosecutors filed a motion, seeking a postponement of the hearing. They requested the delay because they failed to notify Owens of the original plea and sentencing hearing, as required by a new federal law.

Owens found out about the plea agreement by reading about it in Sunday's edition of the Courier & Press. And U.S. Attorney Susan Brooks said she found out that Owens hadn't been notified about the plea agreement hearing until she was informed of it by the Courier & Press on Tuesday.

"She wants to thank you for bringing it to our attention," said Claudia Cummings, a spokeswoman for Brooks' office in Indianapolis. That's the only thing, though, that Brooks' office will say about the case. * * *

Owens said IRS investigators also told him that they weren't going to seek restitution from Titzer, even though they know some of the money went to buy a house that is now listed in Titzer's wife's name. "They told me, 'You're on your own getting any of your money back," Owens said. "They said, 'You can hire a lawyer and file a civil lawsuit.'"

Today's Hayden story is headlined "For love or money: If wife gives up house and cash, tax-cheat husband gets leniency ... if loot kept, he's in prison long time." Some quotes:
The wife of confessed thief and tax cheat Michael G. Titzer faced an interesting proposal from a U.S. District Court judge on Wednesday: love or money.

With her husband sitting in the courtroom, the judge laid out the options: Betty Jutzi-Titzer could voluntarily surrender her $170,000 home and some $34,000 in cash stashed in bank accounts - which would likely get her husband out of prison within a few years - or she could try to hang on to the cash and the home, all obtained through her husband's illegal deeds, and risk sending her husband to prison for up to 30 years.

Would it be door No. 1 or No. 2? Jutzi-Titzer, under pressure from her husband's defense attorney, finally decided to give up the house and cash. But given her considerable reluctance, evidenced by her repeated statements that she'd rather keep the stolen loot, U.S. District Judge Richard L. Young postponed for the second time the sentencing of her husband. * * *

Titzer admitted he used the stolen money to buy a $170,000 house, which he then put in his wife's name. She then used the house to get a loan of $110,000. In the plea deal offered by Shellenbarger's boss, U.S. Attorney Susan Brooks, Titzer agreed to plead guilty to two federal charges in return for a recommendation from prosecutors that he spend less than four years in prison. Titzer was not required to pay back any of the stolen money. Young rejected that deal two weeks ago, after Shellenbarger revealed the IRS was demanding Owens again pay $370,000 in federal employee withholding tax, plus penalties, fines and interest. The total tab being sought by the IRS from Owens stands at more than $1 million.

Young declared the deal unfair and unjust, and instructed Shellenbarger, federal investigators and Titzer's attorney, Chris Lenn, to come up with a better plan. That plan emerged Wednesday, when Lenn called Jutzi-Titzer to the witness stand. * * *

Young then reset the sentencing hearing for March 3, over the objections of the federal prosecutor, who said the government would not take part in efforts to make restitution to Owens.

Noting Shellenbarger's reluctance to cooperate, Young instructed Shellenbarger and federal investigators to make themselves available to Owens and his attorney over the next two weeks.

Federal prosecutors have apparently been reluctant to do that, according to Owens, who also testified in court Wednesday. Owens said the federal prosecutor had failed to notify him that a plea agreement had been reached with Titzer, even though federal investigators had promised that would be done.

Owens found out about the plea agreement and Titzer's Feb. 4 sentencing hearing by reading about it in the Evansville Courier & Press. Before Wednesday's court hearing, Shellenbarger told Owens that he didn't believe a new federal victims-rights law applied to Owens. Shellenbarger told Owens that even though Titzer stole $370,000 of Owens' money, that because Titzer was charged with a tax crime, Owens was not a "direct victim" of the crime and might only be an "indirect victim" of Titzer's crime.

Posted by Marcia Oddi on Thursday, February 17, 2005
Posted to Ind Fed D.Ct. Decisions

Wednesday, February 16, 2005

Ind. Decisions - Court of Appeals posts three today

In re the adoption of two minor children: Julie Mariga v. Lori Flint (2/16/05 IndCtApp) [Family Law]
Baker, Judge

This case requires us to examine the nature of parenthood. Whether a parent is a man or a woman, homosexual or heterosexual, or adoptive or biological, in assuming that role, a person also assumes certain responsibilities, obligations, and duties. That person may not simply choose to shed the parental mantle because it becomes inconvenient, seems ill-advised in retrospect, or becomes burdensome because of a deterioration in the relationship with the children’s other parent. To the contrary, of key importance is the relationship between parent and children, not between parent and parent. What we must focus on is the duties owed by a parent to her children, and those duties do not evaporate along with the relationship between the parents—indeed, those duties do not evaporate even if the relationship between parent and children deteriorates.

Appellant-respondent Julie Mariga appeals from two orders: the Tippecanoe County Superior Court’s (Superior Court) order granting appellee-petitioner Lori Flint’s Petition for Child Support and the Tippecanoe County Circuit Court’s (Circuit Court) order denying Julie’s Petition to Vacate Adoption.

Julie argues that the Circuit Court erred in denying her petition to vacate the adoption. Specifically, Julie raises the following arguments with respect to the Adoption Order: (1) the Circuit Court did not have the authority to grant Julie’s Petition for Adoption because the same-sex partner of a biological parent cannot be a stepparent pursuant to the stepparent adoption statute; and (2) the adoption was procured by fraud because Lori never intended for her relationship with Julie to be a lifelong commitment.

The Child Support Order requires Julie to pay child support for her adopted children, who are the biological children of Lori, Julie’s ex-significant other. Specifically, Julie raises the following arguments with respect to the Child Support Order: the Superior Court did not have subject matter jurisdiction, and Lori failed to state a claim upon which relief may be granted because (1) the Circuit Court, rather than the Superior Court, had exclusive jurisdiction over the adoption and child support determinations; (2) the Superior Court previously dismissed Lori’s petition with prejudice, preventing it from re-opening the matter; and (3) Lori’s petition was improperly captioned and not verified.

Finding that this court has previously determined that a person may validly adopt the children of her same-sex partner without divesting the partner of any parental rights, that as a result Julie is a parent to Lori’s children, and that the adoption was not procured by fraud, we affirm the judgment of the Circuit Court. Additionally, finding that the Superior Court properly exercised its jurisdiction over Lori’s petition for child support and that she did not fail to state a claim upon which relief may be granted, we affirm the judgment of the Superior Court. * * *

Conclusion. As to Julie’s petition to vacate the adoption of her children, we find that the Circuit Court had authority to grant her petition for adoption in 1997, and it was not procured by fraud. As to Lori’s petition for child support, we find that the Superior Court properly exercised its jurisdiction and that Lori did not fail to state a claim upon which relief may be granted. The judgments of the Circuit and Superior Courts are affirmed.
SHARPNACK, J., and FRIEDLANDER, J., concur.

Dallas Farmer v. Lori Spradlin & Todd Cornett (2/16/05 IndCtApp) [Family Law]
Crone, Judge
* * * At the hearing on his motion to correct error, Cornett testified that he was “certain” that he was T.M.C.’s biological father when he executed the paternity affidavit. Tr. at 22. Spradlin testified that when she executed the affidavit, she was “pretty sure” that Cornett was T.M.C.’s biological father, although she “did have a doubt.” Id. at 15. Nevertheless, Spradlin’s uncertainty falls short of knowing that Cornett was not T.M.C.’s biological father. In sum, Farmer has failed to establish that Spradlin and Cornett engaged in a “deliberately planned and carefully executed scheme” to improperly influence the trial court to issue the paternity judgment. See footnote We therefore conclude that the trial court did not abuse its discretion in granting Cornett’s motion to correct error. Affirmed.
RILEY, J., and ROBB, J., concur.
Howard & Merry Funston v. School Town of Munster, et al. (12/16/04 IndCtApp) [Torts]
[Previously NFP]
Kirsch, Chief Judge
Howard Funston (“Howard”) and his wife Merry Funston (collectively “the Funstons”) appeal the trial court’s summary judgment ruling in favor of the School Town of Munster (“the School”) upon the Funstons’ negligence claim, which ensued after Howard fell off the back of a set of portable aluminum bleachers while attending his minor son’s basketball tournament at the School. We find the following issue dispositive: whether the trial court erred when it determined that Howard was contributorily negligent as a matter of law. We reverse and remand for further proceedings. * * *

Considering this evidence in the light most favorable to the Funstons, we find that genuine issues of material fact remain as to whether Howard knew or should have known that there was not a back behind the last tier of seats, and we cannot say as a matter of law that Howard was contributorily negligent. Accordingly, we hold that that summary judgment should not have been entered in favor of the School. Reversed and remanded.
ROBB, J., concurs.

BAKER, J., dissents with separate opinion.
* * * As the majority points out, even the slightest negligence on Howard’s part bars any recovery because his claim is governed by common law contributory negligence rules rather than the Indiana Comparative Fault Act. While contributory negligence is generally a question of fact for the jury, if the facts are undisputed and only a single inference can reasonably drawn from those facts, it is appropriate to decide the issue as a matter of law.[ftn] * * *

Whether or not the defendants share the blame for Howard’s injury is irrelevant inasmuch as I believe that he is at least slightly contributorily negligent. I would therefore affirm the decision of the trial court granting the School’s motion for summary judgment.
_______
t is undisputed that the School is a governmental entity that is not covered by the Comparative Fault Act, IC 34-51-2-2, and the Funstons’ claim is governed by common law contributory negligence principles, under which even the slightest contributory negligence by a plaintiff bars recovery. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 977 (Ind. 2001).

Posted by Marcia Oddi on Wednesday, February 16, 2005
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Commentary on township government in Indiana

Josh Claybourn, a second year law student at Indiana University School of Law - Indianapolis, who during his first year was a prodigious blogger, has sent me a link to some interesting commentary about the Indiana township trustee system, by way of University College, Dublin. Access the specified entry here. For context, access the entire blog here.

Actually, Josh still blogs, here (group blog), for instance.

Posted by Marcia Oddi on Wednesday, February 16, 2005
Posted to Indiana Government

Ind. Decisions - 7th Circuit posts two today

Tun, Brandon v. Whitticker, Joselyn (ND Ind., Roger B. Cosbey, Magistrate Judge) [10 pp.]

Before CUDAHY, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge.

* No person shall . . . be deprived of life, liberty, or property, without due process of law . . . . (U.S. Constitution, amendment V)

* [N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . . (U.S. Constitution, amendment XIV, § 1).

As one commentator astutely observed,
A reader of the Supreme Court’s substantive due process cases can come to feel like a moviegoer who arrived late and missed a crucial bit of exposition.

Where is the part that explains the connection between this doctrine and the text of the constitutional provisions from which it takes its name?1

This case requires that we once again wade into the murky waters of that most amorphous of constitutional doctrines, substantive due process. We start with the facts, which are undisputed insofar as they are material to the case.

Brandon Tun, a high school student and member of the wrestling team, was taking a shower in the boys’ locker room of Wayne High School in Fort Wayne, Indiana, when a fellow student took pictures of him and three other wrestlers. * * * From there on, events took several unfortunate turns, resulting in Tun’s being expelled from school for 6 weeks. * * *

Ripping up the pictures and telling the boys that they used bad judgment would have been more than enough medicine to cure this little ill. The overreaction by the defendants, including an overly broad reading of the district’s behavior code, was regrettable. But we can’t say that what the defendants did, considering the limitations set out in McCluskey, violated the due process clauses of the United States Constitution. But the situation does demonstrate the importance of providing procedural due process, which ultimately allowed Tun (and we assume the other boys) to prevail at the end of the day: his expulsion was set aside, his school records were cleared, and he returned to school.

Because there was no constitutional violation, we need not proceed to the second step of the qualified immunity analysis. However, even had we somehow found this incident to rise to the level of a constitutional violation, we could not find that the law was so clearly established that reasonable people would know they could not do what Whitticker and Platz did. If anything, the case law would probably reassure them that they could. They are entitled to qualified immunity.

Accordingly, the decision of the district court is REVERSED.

Brown, David v. Budz, Timothy (ND Ill.) [22 pp.]

Before COFFEY, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. David Brown, a resident of the Illinois Department of Human Services’ Sexually Violent Persons and Detention Facility (Facility) was severely beaten several times by a fellow resident. Brown alleged that Facility employees failed to protect him in violation of his due process rights by allowing that fellow resident with allegedly violent propensities to roam Facility common areas unsupervised. He also alleged that several Facility employees violated his right to equal protection by intentionally treating him and other Caucasian residents differently from similarly situated African-American residents. The district court dismissed Brown’s complaint for failure to state a claim, but because we find that the allegations in Brown’s complaint are sufficient to state several claims on both counts, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Wednesday, February 16, 2005
Posted to Ind. (7th Cir.) Decisions

Courts - Marion County judges selection bill snarled

This ILB entry from Feb. 8th reported that HB 1703, under which "Marion County judges would be appointed by the governor instead of chosen by voters" according to a quote from the Indianapolis Star, had passed out of first house committee. The next step is normally a routine house vote to accept the committee report. The bill then is eligible to be scheduled for 2nd reading. However, the process did not go as planned yesterday, according to this headline from a story today in the Star: "Dems win 1st round over judges: After fiery debate, GOP backs off bill to let governor fill spots." Sme quotes from the report by Mary Beth Schneider and Kevin Corcoran:

A bill to let the governor appoint Marion County judges sparked an emotional debate Tuesday in the Indiana House of Representatives, with Democrats arguing that Republicans were trying to make it harder for blacks and women to serve.

Republicans retorted that they simply want to take politics out of the process.

The shouts and anger simmered down only after Republicans agreed to replace the language in House Bill 1703 with a proposal favored by Democrats. * * *

Rep. David Orentlicher, D-Indianapolis, offered a "minority committee report." That's an alternative version of a bill preferred by a minority of a committee -- in this case, the Democrats. Such reports are rarely offered and, typically, are rejected out of hand. But not this time.

But the issue may be far from over. * * *

At first, Democrats didn't realize they had won. When Bosma tried to end debate, Crawford angrily challenged him, saying: "Don't ever try to take my rights away from me."

Afterward, both Bosma and Murphy said they are not sure what happens to the bill next. It could be approved as is, amended or sent back to committee. Or Murphy could choose to let it die.

"It's easy to get involved in race-baiting," Murphy said of the Democrats' complaints.

"I thought it was important to argue the issue on the facts and not on emotions."

Here is the digest to the introduced bill:
Synopsis: 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.
Here is the digest to the bill as it stands after the substitution of the minority committee report:
Superior court judges. Provides that if: (1) a majority of county commissioners vote for the public to vote on a public question whether superior court judges in the county should be elected in a nonpartisan election; and (2) the voters approve this public question; a superior court judge in that county shall be elected in a nonpartisan election and then is subject to a retention vote every six years. Provides that if a superior court judge is in office and the public question concerning nonpartisan election of judges is approved, the superior court judge is subject to a retention vote. Limits the amount of money a person may contribute to: (1) a judicial candidate to $50; and (2) all judicial candidates to $200; in a two year period.

Posted by Marcia Oddi on Wednesday, February 16, 2005
Posted to Indiana Courts

Tuesday, February 15, 2005

Ind. Decisions - 7th Circuit posts five today

In re: v. USA (ND Ill.) [8 pp.]

Before EASTERBROOK, MANION, and KANNE, Circuit Judges.
PER CURIAM. * * * The petition for a writ of mandamus is granted, and the district court is directed to close its investigation into the proceedings that occurred before Chief Judge Kocoras in December 2003. The Office of Professional Responsibility is free to proceed as it chooses, but it need not investigate at the behest of the Judicial Branch—nor are its findings (if it conducts an investigation voluntarily) to be reported to the Judicial Branch. This is a matter for the Executive Branch to handle internally using its own judgment. Because we have halted the district court’s inquest, we need not discuss any of the other issues on which the U.S. Attorney, the civil litigants, and the district judge have exchanged opposing views.

[Update 2/16/05 - The Chicago Tribune has an article today on the ruling. The lead: " Saying a federal judge overstepped his authority, an appeals court in Chicago on Tuesday ordered a halt to the judge's inquiry into whether a federal prosecutor committed a crime by violating grand jury secrecy rules."]

Fenje, Paul v. Feld, James (ND Ill.) [15 pp.]

Before COFFEY, WILLIAMS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Dr. Paul Fenje was accepted into the anesthesiology residency program at the University of Illinois at Chicago (UIC). Shortly thereafter, but before the residency began, the program’s director learned that Dr. Fenje had been terminated from a previous residency because of questions about his competency. Based on his lack of candor in the application process (he had not disclosed his dismissal from the prior residency), Dr. Fenje was dismissed from the UIC program. Fenje responded with this lawsuit against the program’s director, Dr. James Feld, alleging that the termination of his residency violated his due process and equal protection rights under the Fourteenth Amendment to the United States Constitution. The district court granted summary judgment to the defendant and Fenje appeals. We affirm.

Kupstas, Rodney v. City of Greenwood (SD Ind., Richard L. Young, Judge) [12 pp.]

Before FLAUM, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.
FLAUM, Chief Judge. Plaintiff-appellant Rodney Kupstas filed suit alleging that defendant-appellee City of Greenwood violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., in terminating his employment. Following the district court’s grant of summary judgment in favor of Greenwood, Kupstas appealed. For the reasons stated herein, we affirm.

Solon, James D. v. Kaplan, Larry S. (ND Ill.) [11 pp.]

Before FLAUM, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.
FLAUM, Chief Judge. James Solon filed this suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that his former law partners Larry Kaplan, Robert von Ohlen, and Fred Begy terminated his interest in their firm in retaliation for his opposition to sexual harassment. The district court granted summary judgment in favor of defendants, concluding inter alia that Kaplan was not an “employee” as defined by 42 U.S.C. § 2000e-3(a) and therefore not protected by Title VII. For the reasons stated herein, we affirm.

Barrow, Ronald v. Hinsley, Charles (ND Ill.) [21 pp.]

Before CUDAHY, ROVNER and WOOD, Circuit Judges.
PER CURIAM. Petitioner Ronald Barrow, serving a life sentence for murder in an Illinois correctional facility, appeals the district court’s denial of his habeas corpus petition under 28 U.S.C. § 2254. Barrow alleges, inter alia, that since his trial counsel failed to present any evidence in defense and committed several other errors during state proceedings, he was denied effective assistance of counsel in violation of his rights under the Sixth Amendment to the United States Constitution. Barrow claims that the Illinois Supreme Court’s determination that his trial counsel’s performance (1) was not objectively deficient and (2) did not prejudice Barrow constituted an unreasonable application of Supreme Court precedent. The district court found these contentions unpersuasive. We affirm.

Posted by Marcia Oddi on Tuesday, February 15, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals posts four today, including one fascinating concurring opinion based on Blakely/Booker

Archie Parker v. State of Indiana (2/15/05 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge

Parker raises one issue, which we restate as whether the trial court properly reinstated the balance of his sentence when it revoked his parole. * * *

Conclusion. Because Meeker is distinguishable, and Parker has not established that the parole board discharged or “turned over” his sentence, the trial court properly denied his motion. We affirm.
MAY, J., and DARDEN, J., concur.


Kristina Padilla v. State of Indiana
(2/15/05 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge
Appellant, Kristina Padilla, pleaded guilty to Battery as a Class A felony. Following a sentencing hearing, the trial court identified aggravating and mitigating circumstances and sentenced Padilla to an enhanced term of thirty-five years, with five years suspended and to be served on probation. Upon appeal, Padilla presents one issue for our review, whether her sentence violates the Sixth Amendment under Blakely v. Washington, 124 S.Ct. 2531 (2004). We affirm. * * *

Indeed, we discern nothing in the record which would indicate that the trial court would have imposed a lesser sentence without consideration of such fact. The other factors considered by the court as part of the nature and circumstances of the crime—that Padilla was in a position of trust with the victim and that the victim was of a tender age—are sufficient in and of themselves to warrant the enhanced sentence imposed by the court. We further observe that the trial court enhanced Padilla’s sentence by only five years, far less than the twenty-year enhancement permitted by statute. We therefore cannot conclude that the trial court erred in imposing an enhanced sentence given the valid aggravating circumstances identified by the court which are not in violation of the Sixth Amendment under Blakely. The judgment of the trial court is affirmed.
NAJAM, J., and BARNES, J., concur.

Obed A. Kalwitz, Jr., et al. v. Estate of Helen Kalwitz (2/15/05 IndCtApp) [Trusts & Estates]
Crone, Judge
Obed Kalwitz, Jr. (“Obed, Jr.”), Rolene Kalwitz (“Rolene”), Obed Kalwitz, III (“Obed, III”), and Lorene Mohlke (“Mohlke”) (collectively, “the Appellants”) appeal a judgment imposing a constructive trust on real property in favor of the estate of Obed Kalwitz, Sr. (“Obed, Sr.”), and the estate of Helen Kalwitz (“Helen”) (collectively, “the Estates” or “the Appellees”). We affirm. * * *
RILEY, J., and ROBB, J., concur.
Kristopher Abney v. State of Indiana (2/15/05 IndCtApp) [Criminal Law & Procedure]
Riley, Judge
* * * [Issues] Whether the State presented sufficient evidence to sustain Abney’s conviction for possessing material capable of causing bodily injury by inmate; and Whether the trial court properly sentenced Abney in light of Blakely v. Washington. * * *

Abney asserts that the trial court’s imposition of an enhanced sentence violates Blakely v. Washington, -- U.S. ---, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh’g denied. Specifically, Abney contends that the trial court erred by enhancing his sentence based on aggravators which were not supported by jury findings. Conversely, the State maintains that Indiana’s sentencing scheme differs from the one struck down in Blakely and that it therefore does not run afoul of the Sixth Amendment. Alternatively, the State claims that, even if Blakely should apply, any error in this case is harmless beyond a reasonable doubt. * * *

Based on the foregoing, we find that the State presented sufficient evidence to convict Abney of the offense of possessing material capable of causing bodily injury by inmate, and the trial court did not err when it sentenced Abney to seven years executed, three years beyond the presumptive sentence for that crime. Affirmed.
CRONE, J., concurs.

ROBB, J., concurs in result with opinion.
I concur fully with respect to Part I of the majority opinion. However, I respectfully concur in result only with respect to Part II.

The State contends that Abney’s Sixth Amendment rights have not been violated because Blakely does not implicate Indiana’s sentencing scheme. The majority concludes that Blakely does implicate Indiana’s sentencing scheme and “prohibits our trial courts from imposing a sentence greater than the presumptive one based on a factor not admitted by the defendant or submitted to the jury and proven beyond a reasonable doubt.” I, too, previously have rejected the State’s argument and held that Blakely does implicate Indiana’s sentencing scheme. See Williams v. State, 818 N.E.2d 970, 975 (Ind. Ct. App. 2004); Traylor v. State, 817 N.E.2d 611, 622 (Ind. Ct. App. 2004). However, I believe a recent United States Supreme Court opinion has shed further light on the Apprendi/Blakely issue and now believe that the issue of the applicability of Blakely in Indiana merits reconsideration. * * *

Booker specifically states that discretionary sentencing schemes do not implicate the Sixth Amendment: “when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” 2005 WL 50108 at *8 (emphasis added). Because Indiana’s sentencing scheme grants to trial court judges the discretion to impose a sentence within a prescribed statutory range, I now believe that Indiana’s sentencing scheme passes constitutional muster as written. In essence, what remains of the federal Guidelines following Booker is substantially similar to Indiana’s existing sentencing scheme. As the Court found the reshaped federal Guidelines to be constitutional, Indiana’s is as well.

I would therefore not apply Blakely to Abney’s sentence at all, but rather consider only the trial court’s discretion in finding the aggravating circumstances and enhancing his sentence. Because I believe the trial court properly exercised its discretion in sentencing Abney, I concur in the majority’s result affirming his sentence.

Posted by Marcia Oddi on Tuesday, February 15, 2005
Posted to Ind. App.Ct. Decisions

Law - Maryland governor's public records dispute with press recalls that of Hammond's mayor

Some of you may recall this ILB entry from Dec. 29, 2004 titled "Hammond mayor denies local paper access to police records." The mayor's chief of staff was reported as saying: "[A]ccess to police information is being withheld because there is a strained relationship between the mayor's office and The Times."

Today the LA times has an AP story headlined "Judge Backs Governor's Freeze on Journalists," datelined Baltimore that has some similarities. Some quotes:

A federal judge ruled Monday that Gov. Robert L. Ehrlich Jr. can freeze out two Baltimore Sun reporters by barring all state employees from talking to the journalists.

U.S. District Judge William Quarles dismissed the newspaper's lawsuit, saying the paper wrongly asserted a greater right of access to government officials than private citizens have.

"The right to publish news is expansive. However, the right does not carry with it the unrestrained right to gather information," the judge ruled.

Sun editor Tim Franklin called the ruling "scary" and said the newspaper would seek an expedited hearing from the U.S. 4th Circuit Court of Appeals.

"What the court is saying is that it's OK for a politician to create an enemies list," Franklin said. "It's not only unconstitutional, it's undemocratic."

Here are the Memorandum Opinion and Order in the case, The Baltimore Sun v. Robert Ehrlich. The Court's order quotes the Governor's memorandum:
Effective immediately, no one in the Executive Department or Agencies is to speak with David Nitkin or Michael Olesker until further notice. Do not return calls or comply with any requests. The Governor’s Press Office feels that currently both are failing to objectively report on any issue dealing with the Ehrlich-Steele Administration. Please relay this information to your respective department heads. Any questions or concerns can be directed to the following contact information[.]
In a section titled "Effects of the Order" the Court writes:
Since the memorandum, state government employees in the Governor’s Office and agencies who regularly spoke to Mr. Nitkin when he contacted them for news gathering have refused to speak to him. Nitkin Declaration (“Decl.”) at ¶ 13. For example, the Governor’s press secretary, the State Budget Secretary, and a spokeswoman for the Department of General Services have refused comment to Mr. Nitkin about, respectively, statements made by legislators, the status of state employee health care costs, and a contract between a private consulting firm and the Department of General Services. Id at ¶¶ 14, 15, and 16. Mr. Nitkin also fears that he may be deprived of such information as the dates of deer season, the number of leases entered into by the state and the total square footage of buildings leased, the number of West Nile cases and the success of the state’s efforts to encourage West Nile reporting, and the staffing levels in “certain problematic juvenile centers.” Id. at ¶ 18. Also, since the memorandum, “numerous state government representatives and employees” have not returned Mr. Nitkin’s calls or “offered a personal reason or justification for declining [his] recent inquiries [or] stated or suggested it was their decision to do so.”

Posted by Marcia Oddi on Tuesday, February 15, 2005
Posted to General Law Related

Env't. - Midwest power plants and factory farms in news

"Illinois, 4 others seek own coal rules: Bush's air plan too slow, they say," is the headline to this story today in the Chicago Tribune. It begins:

Illinois and four other Midwestern states are considering new rules that would require coal-fired power plants to dramatically curb air pollution linked to lung damage, heart disease and respiratory ailments.

Aimed at the region's biggest polluters, the proposal would hold coal plants to stricter emissions standards than the Bush administration is calling for under its Clear Skies legislation, a revision of the Clean Air Act that a Senate committee is scheduled to consider Wednesday.

Aging coal plants in Illinois, Indiana, Michigan, Ohio and Wisconsin--which account for about a quarter of the sulfur dioxide and nitrogen oxide released by the nation's power plants--also would have to meet earlier deadlines for cleaning their smokestacks.

It is far from certain that the five states will act on their own. But the region's environmental regulators have concluded that more aggressive standards for coal plants are the quickest and most cost-effective option to clear the air of pollution that can trigger a variety of health problems and take years off lives.

If adopted by each of the states, the regional endeavor could require most of the coal plants in Illinois to install expensive pollution controls. The goal would be fewer days when the urban Midwest is blanketed with smog, haze and lung-damaging soot.

The Christian Science Monitor has a story today headlined "New rules to stem pollution on factory farms draw fire: Environmentalists say Bush's cooperative approach is toothless, while the EPA sees it as efficient and effective." Some quotes:
With the rise of so-called factory farms, pressure has increased to regulate animal operations like any other industry.

Now the Environmental Protection Agency, in an early signal of the Bush administration's second-term environmental policy, has taken a step in that direction that critics say is two steps back.

The EPA has offered the poultry, pork, and dairy industries a deal: Submit to voluntary air emissions tests and likely future regulation in return for years of legal immunity from the federal Clean Air Act. The agency says this partnership will help it protect the public interest in the most efficient way, by enlisting industry support.

But the agreement is drawing fire from environmentalists and state regulators, who say it could stifle pollution control efforts under way in states.

"[The EPA] is basically backing off on enforcement," says Ed Hopkins, environmental quality director for the Sierra Club. "These facilities are very large polluters, and this agreement gives them an enforcement amnesty until more research is done."

Companies that sign on will pay a one-time civil penalty ranging from $200 to $100,000 depending on their size; a maximum of 28 facilities, perhaps fewer, will be tested for air emissions over a two-year period. All participants would be given immunity for any past or present air-quality violations.

The deal cajoles business to the regulatory bargaining table with the lure of collaborative policymaking and legal amnesty. The meat industry is in fact taking a lead role, crafting many of the agreement's core elements, paying for and helping to direct a government study that could ultimately lead to regulation.

But this partnership stalls attempts to clean up the industry, argue environmental groups and state regulators. They worry that the legal immunity will make it harder to hold some 15,500 large farms across the US - so-called "concentrated animal feeding operations" - accountable.

The Sierra Club, for example, has led a legal action against Tyson Foods, which resulted last month in a settlement in which the company agreed to pay $500,000 to study ammonia emissions at two Kentucky poultry plants, and an undisclosed amount to three nearby residents for alleged air-quality damages.

State regulators, for their part, say the deal's legal-immunity provision could erode their own efforts to rein in factory farm pollution. California, Colorado, Missouri, Iowa, Minnesota, and Oklahoma have all developed their own programs to regulate emissions from animal facilities. States are allowed to impose tougher rules than the federal government, but the EPA agreement could put political pressure on regulators in farm states to tread lightly. * * *

"All along [EPA has] had the authority under the Clean Air Act to gather the kind of data they need to determine emissions levels," says Michele Merkel, a former EPA staff attorney who is now with the Environmental Integrity Project. "Four years ago we already knew that facilities of a certain size were exceeding health-based standards in the Clean Air Act."

Animal farms account for 73 percent of the ammonia released into the air.

Industry officials say they are ready to cooperate but reject the idea that factory farms present a serious environmental or human health threat. "In terms of human health impacts, there has not been anything scientifically proven that these hog barns would cause any ill to human beings," says Kara Flynn, spokeswoman for the National Pork Producers Council.

Here is a link to the Jan. 22, 2005 ILB entry on the EPA plan to offer farms immunity from air pollution violations. See also this Jan. 30th, 2005 entry and this Jan. 27th, 2005 entry on the Tyson chicken settlement in Kentucky.

Posted by Marcia Oddi on Tuesday, February 15, 2005
Posted to Environment

Ind. Courts - More on Clark County judges' spending issues

Updating our entry from Sunday titled "Two Clark County judges' spending criticized" is this story today in the Louisville Courier Journal, headlined "Judges may take Clark to court." Some quotes:

For Clark County's four elected judges, a legal battle over more than $900,000 in public funds appears headed toward a familiar place -- the courtroom.

An attorney representing the judges said yesterday that he will begin preparing to head to trial to solve a conflict with the County Council over probation user fees.

Filing paperwork with the Indiana Supreme Court will be one of the first steps in the process, said the attorney, David Lewis.

The four judges attended last night's council meeting to discuss who ultimately controls the hundreds of thousands of dollars in probation fees the county collects annually.

Posted by Marcia Oddi on Tuesday, February 15, 2005
Posted to Indiana Courts

Ind. Law - Daylight savings time - Is it time?

"Daylight-saving time is issue of the hour: Strong support at hearing doesn't guarantee passage" is the headline to this lengthy Mary Beth Schneider story today in the Indianapolis Star. The lead:

If it were up to the people who testified at an Indiana House committee Monday, Indiana would observe daylight-saving time.

In a nearly three-hour hearing, a parade of business owners and lobbyists told the House Commerce, Economic Development and Small Business Committee that Indiana needs to get in sync with a global economy used to daylight-saving time.

Only seven people -- mostly theater owners -- testified against the change.

But passage of the bill [HB 1034], for decades one of the most controversial to confront lawmakers, is far from certain.

More:
The bill addresses only whether Indiana would observe daylight-saving time. It would not change Indiana's time zone; that would take federal action. Currently, most of Indiana is in the Eastern time zone, with 77 counties observing Eastern Standard Time year-round. A few counties in northwest, southwest and southeast Indiana observe daylight-saving time, aligning their clocks with Chicago or New York in the summer.
A number of other papers had similar stories.

The Indiana Law Blog
had a number of time entries at just about this same time last year, when the issue was debated during the last session. This entry, from Feb. 4, 2004, contains a number of links to background information. See also this entry from Feb. 12, 2004, about changing the time zone. And this entry from Feb. 18, 2004.

Posted by Marcia Oddi on Tuesday, February 15, 2005
Posted to Indiana Law

Ind. Gov't. - Daniels names man to head Civil Rights Commission

The Indianapolis Star reports today:

The first black to be a Supreme Court justice in Colorado will head the Indiana Civil Rights Commission.

Gregory Kellam Scott, who earned his law degree at Indiana University School of Law-Indianapolis, was named to the post Monday by Gov. Mitch Daniels. * * *

Scott, 56, retired from his position as a senior vice president and general counsel of California-based GenCorp Inc. and moved to Anderson last fall, where the family of his wife, Carolyn Weatherly Scott, lives. * * *

Scott served on the Colorado Supreme Court from 1993 until March 2000, when he stepped down to join the private sector.

Before joining the court, Scott was a law professor at the University of Denver. Among the classes he taught was Representing Minority and Women-Owned Business Firms.

He also has been a visiting professor of law at IUPUI, from which he graduated with honors in 1977 and where he was a member of the Indiana Law Review.

Scott also holds bachelor's and master's degree from Rutgers University in New Jersey.

Posted by Marcia Oddi on Tuesday, February 15, 2005
Posted to Indiana Government

Ind. Gov't. - Demystifying School Funding in Indiana

"Demystifying school funding in Indiana" is the title of a 17-page report produced by IU's Center for Evaluation and Education Policy. Access the press release here and the report here.

Posted by Marcia Oddi on Tuesday, February 15, 2005
Posted to Indiana Government

Monday, February 14, 2005

Ind. Decisions - One today from the Court of Appeals

American General Finance Management Corporation, et al. v. Robert Watson (2/14/05 IndCtApp) [Arbitration; Employment Law]
Sullivan, Judge

American General Finance Management Corporation (“AGF”) appeals from the trial court’s denial of its motion to compel arbitration. It presents one issue for our review, which we restate as whether AGF and Robert Watson agreed to arbitrate employment disputes according to the provisions of the Federal Arbitration Act (“FAA”). * * *

We reverse the trial court’s order denying the motion to compel arbitration. Because the wrongful termination action could be arbitrated at this time, the trial court may order the parties to go to arbitration upon that issue. However, because the issue of failure to pay the bonus may not be settled without determining AGES’s liability first, arbitration on that issue is delayed until after the resolution of the issue with respect to AGES and AGC on Counts II and III.
NAJAM, J., and BARNES, J., concur.

Posted by Marcia Oddi on Monday, February 14, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts four today

Greenawalt, Kristin v. IN Dept Corrections (SD Ind., Larry J. McKinney, Chief Judge) [9 pp.]

Before POSNER, MANION, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. Two years after Kristin Greenawalt was hired by the Indiana Department of Corrections as a research analyst, she was told that to keep her job she would have to submit to a psychological examination. The record, limited as it is to the complaint, is silent on the reason for so belated a demand. But she complied and later brought this suit under 42 U.S.C. § 1983 against the Department and two of its officials (whom she sued in their individual capacity)—her immediate supervisor and the official who had ordered her to take the test. She claimed that the test, which lasted two hours and inquired into details of her personal life, constituted an unreasonable search in violation of her Fourth Amendment right to be free from unreasonable searches and seizures. Also, invoking the supplemental jurisdiction of the district court, 28 U.S.C. § 1367, she claimed that whether or not the test was a search, requiring her to take it if she wanted to keep her job both invaded her privacy and deliberately inflicted emotional distress on her, and so violated Indiana’s common law of torts. She asked for damages plus an injunction that would require the defendants to expunge the results of the test from her personnel file. * * *

Many cases say that the Fourth Amendment is intended to protect privacy. * * *

Nevertheless we do not think that the Fourth Amendment should be interpreted to reach the putting of questions to a person, even when the questions are skillfully designed to elicit what most people would regard as highly personal private information. * * *

Our conclusion that the plaintiff has not stated a Fourth Amendment claim does not leave people in her position remediless—or indeed leave her remediless. States are free to protect privacy more comprehensively than the Fourth Amendment commands; and Greenawalt is free to continue to press her state-law claims in state court, where they belong. In most states if prison officials were to publicize highly personal information obtained from someone in Greenawalt’s position by the kind of test of which she complains, she would have a state-law claim for invasion of her tort right of privacy. Indiana, it is true, has thus far refused to recognize this branch of the tort law of privacy. Felsher v. University of Evansville, 755 N.E.2d 589, 593 (Ind. 2001). But the Fourth Amendment does not expand accordion-like to fill what may be a gap in the privacy law of a particular state. * * *

We need not wrestle the issue to the ground. There is no due process claim in this case. It is enough to decide this case that the Fourth Amendment does not provide a remedy for the unpleasantness of being subjected to a psychological test, and that if we are wrong still there is no doubt that the existence of such a remedy was not clearly established when this suit was filed. AFFIRMED.

Banos, Raul v. City of Chicago (ND Ill.) [7 pp.]

Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. As anyone who was awake during the fall of 2004 knows, the label of “flip-flopper” got considerable play during the presidential campaign. The term lives again in this appeal, which involves yet another challenge to the promotion procedures of the Chicago Police Department. The plaintiffs are minority police sergeants who claim their failure to be promoted after taking the 1998 lieutenant examination violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17. During the course of litigation, the plaintiffs elected to renounce one theory of recovery in order to pursue another. But later, when this fresh approach appeared doomed, they tried to resuscitate their original claim. A federal district court did not allow it and entered summary judgment in favor of the City of Chicago. * * *

Moreover, merits notwithstanding, the City met its burden of establishing prejudice. This lawsuit has been around since 1998. The plaintiffs forced the City to litigate the issue of test validity, only to abandon the theory with a vow not to litigate it. Discovery was then completed on the plaintiffs’ new theory that merit promotion was an equally valid, less discriminatory alternative. Once it became apparent that the plaintiffs could not win under this theory, they tried to go back where they started. Throughout this litigation, the City has been subjected to long delays and voluminous discovery. Enough is enough. AFFIRMED.

Sarkes Tarzian Inc v. US Trust Co of FL (SD Ind., Richard L. Young, Judge) [17 pp.]

Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Sarkes Tarzian, Incorporated (“STI”) brought this suit for breach of an oral contract for the sale of non-publicly traded shares of STI stock against U.S. Trust Company of Florida Savings Bank (“U.S. Trust”). A jury found that U.S. Trust breached its contract entered into by James Pressly, who was acting on U.S. Trust’s behalf, and awarded STI $4 million in damages. U.S. Trust appeals the district court’s denial of its motion for judgment as a matter of law, or in the alternative a new trial, and STI appeals a number of the district court’s rulings. For the reasons discussed, we find that STI presented no evidence at trial showing that Mr. Pressly had actual authority to bind U.S. Trust in a contract. We reverse the district court’s denial of U.S. Trust’s motion for judgment as a matter of law and remand for entry of judgment for U.S. Trust. We also find that the jury instructions that the district court gave to the jury were sufficient to apprise the jury correctly of the applicable law of agency under New York law. As such, the district court did not err by refusing to instruct the jury on apparent authority. Because we find that there was no contract between STI and U.S. Trust, we will not address STI’s arguments. * * *

III. Conclusion. We find that Mr. Pressly lacked authority to enter U.S. Trust in a binding stock sale and purchase agreement with STI as a matter of New York law and consequently conclude that no contract was ever created. The case should not have gone to the jury. As the existence of the contract is a threshold matter in this case, we need not analyze the parties’ remaining arguments. The case is REVERSED and REMANDED with instructions to enter judgment for U.S. Trust.

Small, Jimmie E. v. Chao, Elaine L. (CD Ill.) [8 pp.]

Before EASTERBROOK, RIPPLE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Jimmie Small’s case arises from his effort to obtain paralegal training at government expense. He sued federal, state, and local entities on a variety of theories, none of which survived the district court’s scrutiny. That court dismissed his claim against the Secretary of Labor for lack of subject matter jurisdiction, and it dismissed his claims against the remaining defendants for failure to state a claim (principally because he could not show that any of the defendants was his employer). We affirm the district court’s judgment.

Posted by Marcia Oddi on Monday, February 14, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - More on the "Broadband" bill - 1148

The "broadband bill," HB 1148 (see this ILB entry from Feb. 1 for details), came to mind this morning when I read Lee Gomes "Portals" column in the Wall Street Journal (front of the "Marketplace" section - available online to paid subscribers only). The column looks at both sides of the dispute of who should wire cities. A brief quote:

The Philadelphia proposal, like other municipal plans, has become controversial -- in large part simply because of the considerable role being played by the city government.

Last month, the latest in a series of harshly critical reports about these municipal network proposals was published by the New Millennium Research Council, a Washington, D.C., lobby and policy group. The council has ties to both local phone companies, which view these networks as competition and have lobbied in state legislatures to outlaw them, and conservative Washington think tanks, which tend to oppose activist-government initiatives.

These sorts of ideological political tussles over the Web are increasingly common.

But then he presents the advantages of municipal involvement, points out that "speeds in the U.S. have plateaued at current DSL and cable rates, badly lagging behind the speeds available in many other countries" and concludes:
As envisioned by city planners, the Philadelphia network won't have anything close to the blazing speeds common in Asia, where the Internet is so fast that residents can get their television signals through it. Its main goal, says Ms. Neff, is making a basic level of Web connectivity available to everyone.

But because Philadelphia will be able to take advantage of new kinds of wireless technologies like WiMax, it may end up offering faster bandwidth than is enjoyed by many regular cable and DSL subscribers. Because of new technology, these networks can be installed with relatively small capital investments; the estimate for Philadelphia is roughly $10 million.

Incumbent players don't usually have an incentive to build these faster new networks because they are tied to their wired networks, which also deliver telephone and television services. And that's one reason that networking speeds in the U.S. are stuck in the rut they are in.

It's easy to bash city governments as being full of maladroit bureaucrats eager to manhandle a new technology, and even economists who support municipal networks say cities shouldn't rush into them. But well-thought-out city plans could help everyone by acting as a catalyst and shaking up the status quo. Some might even call that competition.

Posted by Marcia Oddi on Monday, February 14, 2005
Posted to Indiana Government | Indiana Law

Ind. Law - A moving story this morning about an attorney's medical malpractice lawsuit

Richard D. Walton of the Indianapolis Star has a story today about Joan Irick, a well-known Indianapolis defense attorney at Kightlinger & Gray who died in 2003. Some quotes from the beginning of the piece:

Lawyer Joan Irick made her name defending companies -- and doctors -- against negligence claims. But on a spring day in 2003, it was Irick telling her own story of alleged malpractice.

Emaciated and in pain, the 50-year-old mother of three struggled through an emotional videotaped deposition. Three weeks later, she was dead.

Now, the Carmel woman's case appears headed toward a review by a panel of doctors, required under Indiana's malpractice law before someone can pursue a claim in court.

The complaint by Irick and her husband, Tom, alleges Dr. Debra Moreland negligently failed to perform tests more than a year before Irick was diagnosed with cancer that could have increased her chances for survival.

The oddity of the defense counsel pursuing a malpractice claim was not lost on Irick even as the cancer consumed her. "She sort of chuckled about it one time," said Dick Young, her fellow law partner and friend. She smiled as if to say: "Can you believe it?"

Moreland declined to comment for this story. A check of Indiana Department of Insurance records revealed no prior claims against her.

Posted by Marcia Oddi on Monday, February 14, 2005
Posted to Indiana Law

Econ. Dev. - Economic development financing via the Indiana Port Authority

A story in yesterday's Cleveland Plain Dealer, headlined "Just add water: The Port Authority found a new recipe for development. But critics fear it's left the port itself high and dry", is about Ohio's Port Authority. But Indiana is mentioned:

The Myers project, along with a dozen other deals, contributed to the port authority's busiest year ever for financing. Since adding the service to its maritime duties in 1993, the authority has emerged as one of the region's more powerful economic development engines.

True to its "More Than a Working Waterfront" slogan, the port authority financed more than $500 million in nonmaritime projects as diverse as the Rock and Roll Hall of Fame and Museum, a surgery center at Parma Community General Hospital and the large outdoor video screens at Playhouse Square.

"Increasingly, the port is a player in getting jobs done," said Stephen Strnisha, chief finance and development officer for the Greater Cleveland Partnership, a group devoted to improving the region's business climate.

And this niche has proven lucrative for the port. Revenue from financing fees jumped tenfold - from nearly $160,000 in 1997 to $1.6 million last year.

Of 85 major U.S. ports, nearly 20 pursue economic development financing.

The Ports of Indiana modeled its new program after Cleveland's. William Friedman, the Indiana ports director, credits his counterpart in Cleveland, Port Authority President Gary Failor. "He's known in the port industry as a pioneer on this subject, and he has a strong track record," Friedman said.

Posted by Marcia Oddi on Monday, February 14, 2005
Posted to Indiana economic development

Env't. - Several recent national stories

The Wall Street Journal today has a front-page article (paid subscription required) with this extensive headline: "Global Warring: In Climate Debate, The 'Hockey Stick' Leads to a Face-Off - Nonscientist Assails a Graph Environmentalists Use, And He Gets a Hearing - Defenders Call Attack Political." Dueling web logs are involved, this one (http://www.climateaudit.org/) run by Stephen McIntyre, the critic, and this one (http://www.realclimate.org/) by the proponents:

RealClimate is a commentary site on climate science by working climate scientists for the interested public and journalists. We aim to provide a quick response to developing stories and provide the context sometimes missing in mainstream commentary. The discussion here is restricted to scientific topics and will not get involved in any political or economic implications of the science.
The LA Times today has a story titled "In Search of Farm Equipment to Lessen Air Pollution: New California rules are prompting growers to find alternative and innovative products."

Two stories of interest yesterday in the LA Times were headed:

Finally, this story from Saturday's Milwaukee Journal Sentinel, titled "Spigot on lake water may be tightened: Great Lakes governors are looking at tougher limits on diversions." Access it here.

Posted by Marcia Oddi on Monday, February 14, 2005
Posted to Environment

Ind. Law - Caesars tops list of casinos where gamblers have banned themselves

Lesley Stedman Weidenbener of the Louisville Courier Journal has a story today that follows up on her July 4th report on Indiana's new, state-wide, self-exclusion list. Some quotes from today's story:

INDIANAPOLIS -- Under a new state program, nearly 500 people with gambling problems have signed up to ban themselves from the state's casinos -- more of them at Caesars Indiana than at any of the state's nine other gambling boats.

"We've been very proactive" about helping people who are addicted to gambling, said Judy Hess, the spokeswoman for Caesars Indiana. "Every employee goes through responsible-gambling training, and we had a program long before the state started theirs."

During the seven months the program has been in existence, 465 people have signed up, according to a report by the Indiana Gaming Commission. Of those, 88 were at Caesars, which is in Harrison County just down the Ohio River from Louisville.

The gaming commission also reported that most of those taking advantage of the program are from other states. Nearly one of every five are from Kentucky.

The commission launched the program last July at the direction of the Indiana General Assembly.

The legislation followed a 2002 Courier-Journal series that found Indiana's previous voluntary exclusion efforts were not as successful as those in some other states.

Some of you also may recall the pre-statute Court of Appeals decision, Milan Stulajter v. Harrah's Indiana Corporation, et al. (5/20/04 IndCtApp) that, according to a Chicago Tribune story "upheld a lower court's decision to dismiss Stulajter's suit, finding that casinos have no duty to protect compulsive gamblers from themselves, even if players are on a blacklist. The ruling agreed with other state and federal courts that recently have let casinos off the hook."

Posted by Marcia Oddi on Monday, February 14, 2005
Posted to Indiana Law

Ind. Gov't. - Controversy in Kentucky over Lieutenant Governor's mansion

The headline in today's Louisville Courier Journal, "Lt. governor may not live in mansion," of course caught my eye, given the current conversy in Indiana. But different issues are involved - here's the story:

FRANKFORT, Ky. -- Gov. Ernie Fletcher's administration wants to resolve a two-year controversy by using the Lieutenant Governor's Mansion as a museum or meeting house and paying Lt. Gov. Steve Pence a $30,000-a-year housing allowance to live elsewhere.

The allowance would be considerably more than the $12,000 proposed by the Democrat-controlled House a year ago, a proposal that died when the House and Senate couldn't agree on the state budget. * * *

Pence said he supports the plan.

"There's no doubt it would be very prestigious to have a mansion to entertain your friends and family and constituents and be able to have events there. It would be very nice," Pence said. "But as far as justifying the money, I have to agree with the secretary of finance that the wiser thing to do is to just take the stipend." * * *

Opened in 1798, the Lieutenant Governor's Mansion served as the state's Governor's Mansion until 1914, when the current Governor's Mansion was built near the current Capitol. Since 1956 the house, known officially as the "Old Governor's Mansion," has served as the residence of lieutenant governors.

But in trying to balance a lean state budget two years ago, the General Assembly mandated that housing not be provided for then-Lt. Gov. Steve Henry.

The Lieutenant Governor's Mansion, meanwhile, has undergone a complete restoration at a cost of almost $2.3 million. Rudolph said that project is largely finished.

Pence said he assumed he would move into the historic residence because it has been a benefit of the lieutenant governor's job for decades.

But the budget Fletcher proposed last week recommends that it be used as a meeting house or museum only and that Pence be paid a housing allowance of $2,500 per month beginning April 1.

Pence, who lives in Louisville and commutes to Frankfort, said the amount seems fair because the lieutenant governor has been provided housing for more than 50 years and legislators get housing expenses while the legislature is in session.

I don't know if our Indiana Lieutenant Governor receives a housing allowance and whether, if so, that money could be saved if she and her family were to move into the Governor's residence, which taxpayers are already paying to maintain.

Posted by Marcia Oddi on Monday, February 14, 2005
Posted to Indiana Government

Sunday, February 13, 2005

Biotech - More on debate over human cloning

On Jan. 14th and Jan. 17th the ILB had entries on the "Debate brewing in Indiana over human cloning." There have been several interesting national stories on this topic within the past week.

"Massachusetts Governor Opposes Stem Cell Work" was the headline to this story last Thursday in the NY Times. The lead:

BOSTON, Feb. 9 - Setting up a political battle over stem cell research, Gov. Mitt Romney of Massachusetts said this week that he would propose legislation to outlaw a type of embryonic stem cell research that is being planned by laboratories at Harvard University and other institutions in the state.

The governor's remarks came as Democratic lawmakers were introducing legislation that would promote embryonic stem cell research, partly in an effort to keep the state's large stable of research scientists and biotechnology companies from moving to California or other states that are providing support or financial incentives for such research.

The president of the Massachusetts Senate, Robert E. Travaglini, a Democrat, introduced such a bill on Wednesday, saying he wanted "to send a clear message that we are going to authorize this kind of research."

See this related article from Friday's Berkshire Eagle.

This article today in the Washington Post reports on "A Struggling Science Experiment: States Closely Watch California's Stem Cell Research Initiative." It begins:

SAN FRANCISCO -- Last fall, a group of pioneering scientists, venture capitalists and entrepreneurs sold Californians on the ultimate startup, one with shoot-for-the-moon ambitions. The men and women pitched the state's residents on a new science that they said might one day lead to cures for humankind's worst diseases. "Save Lives with Stem Cells!" campaign posters urged.

Today, however, a little more than three months after state voters approved a measure allocating $3 billion in public funds for stem cell and related research, organizers are struggling with more down-to-earth concerns. * * *

The stakes surrounding California's initiative have only grown higher in recent weeks with the discovery that much of the most promising research probably cannot be conducted with federal funds because President Bush has restricted the money to certain lines of stem cells which now appear contaminated.

California's experiment is being watched closely by other states. Maryland this month became the most recent state, joining Connecticut, Florida, New Jersey, New York, and Wisconsin, to allocate or consider allocating their own money to stem cell research.

Proposition 71's creators thought the best way to tackle stem cell research was to create a government agency in a very non-government-like way. The California Institute of Regenerative Medicine would be run like a corporate startup, with the state's populace effectively serving as shareholders. Elected state officials, including Gov. Arnold Schwarzenegger (R), appointed a panel of 29 scientists, businessmen and university administrators to oversee the effort, in hopes of issuing the first grants in May.

To streamline and speed things along, the state decided to exempt parts of the organization from many of the traditional rules that government entities must follow, including some regulations governing how agencies spend money.

Interesting ...

Not quite on point, but too important to those following this area to miss, is this long article today in the Washington Post about the patenting of "humanized animals" and the question - "At what point is something too human to patent?"

Posted by Marcia Oddi on Sunday, February 13, 2005
Posted to Biotech | General Law Related | Indiana Law | Indiana economic development

Ind. Law - The problem with potlucks

The Indianapolis Star has a lengthy front-page story today by Robert King titled "Heavens! Potlucks are illegal: Lawmakers scramble to fix law that inadvertently prohibits pitch-ins." A quote:

Churches and other nonprofits that serve food, even only occasionally, must hire certified food handlers, according to the law that took effect in January. In effect, it means that Hoosier home cooking must stay at home.
A sidebar reports:
Four bills in the General Assembly (Senate Bill 41, House Bill 1056, HB 1065 and HB 1109) would give nonprofit groups an exemption from a law that requires food establishments to hire certified food handlers. HB 1056 has cleared the House. Generally, the bills would enable traditional potlucks to continue, if:
• Only members of the organization prepare the food.
• The food events conducted by the organization take place for not more than 30 days in a calendar year.
• The name of each member who has prepared a food item is attached to the container in which the food item has been placed.
For more on the food-handler certification requirements, see this entry from May 28, 2004.

Posted by Marcia Oddi on Sunday, February 13, 2005
Posted to Indiana Law

Ind. Decisions - Supreme Court affirms Keller's election to Indianapolis council seat

Near the end of the Indianapolis Star's "Behind Closed Doors" solumn today is this:

It's official (finally). About 16 months after voters headed to the polls, the Indiana Supreme Court on Friday announced that Republican Scott Keller indeed defeated Democratic incumbent Karen Horseman in the City-County Council's 16th District, east of Downtown.

Keller has been serving on the council since January 2004, but Horseman had challenged her surprise three-vote loss.

Council control was not in jeopardy, as Democrats already have a 15-14 edge.

The suit was the last of many filed in relation to the highly contentious 2003 council elections.

As I hadn't seen an opinion Friday, I checked the Court's docket, where I found this quote from the Feb. 11th order:
WE NOW AFFIRM THE GENERAL JUDGMENT OF THE TRIAL COURT AFFIRMING THE OUTCOME OF THE ELECTION IN KELLER'S FAVOR. THE COURT INTENDS TO ISSUE IN DUE COURSE A MORE EXTENSIVE OPINION REFLECTING THE REASONING. HOWEVER, BECAUSE SUBSTANTIAL TIME ELASPED BEFORE THIS CASE REACHED THE COURT, AND BECAUSE THIS INVOLVES AN ELECTION FOR A PUBLIC OFFICE HELD FIFTEEN MONTHS AGO, THE COURT DETERMINED A BRIEF ORDER CONVEYING ITS ULTIMATE DECISION SHOULD BE ISSUED IMMEDIATELY, SO AS TO PERMIT THE CITY-COUNTY COUNCIL TO GO ABOUT THE BUSINESS OF LOCAL GOVERNANCE FREE FROM THE CONTINUING CLOUD OVER THE DISTRICT 15 SEAT CREATED BY THIS APPEAL.
RANDALL T. SHEPARD, CHIEF JUSTICE
ALL JUSTICES CONCUR.

Posted by Marcia Oddi on Sunday, February 13, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Two Indiana papers run feature stories today on Daniels' efforts to strengthen the executive branch

Mary Beth Schneider of the Indianapolis Star has what I would rate an excellent piece today, headlined "Leaders say state is in for changes: Democrats say Daniels' plans for government will shift power balance; GOP says his goal is efficiency." The article begins:

Democrats call Gov. Mitch Daniels' agenda a power grab. Republicans say Daniels is simply making government more effective and efficient. But both sides -- and Daniels -- agree that big changes are happening in Indiana's state government.

"There's going to be more structural change in government in the next four months than in the last 40 years," said Senate President Pro Tempore Robert D. Garton, like Daniels a Republican.

Not since Democratic Gov. Paul McNutt took office in 1933, Garton said, has Indiana been on the brink of such radical change. McNutt cut the number of state departments from 169 to eight and centralized power and responsibility in the governor's office.

Democrats might have cheered on McNutt as literally the good guy in his trademark white hat. But they are accusing Daniels of trying to shift the balance of power in his favor.

"It's the worst power grab I have ever seen," said Rep. Win Moses, D-Fort Wayne."Some folks think he's a dictator," said Rep. Chet Dobis, D-Merrillville.

Daniels said such charges are just plain wrong. He respects lawmakers, he said, and the separation of powers among the executive, legislative and judicial branches.

A paper I wrote in 2003, titled "Maintaining the Balance of Power between the Legislative and Executive Branches of Indiana State Government post 1941," explores the tension between the executive and legislative branches in Indiana from the time of the 1933 "executive reorganization" under Governor McNutt forward to the present day. Access it here. A quote:
McNutt had run on a platform of streamlining state government and cutting costs.8 “Indiana’s administrative system in 1933 consisted of more than one hundred distinct and largely independent departments and agencies ... tacked on as demands for new government services arose, with little attention given to integration or coordination of the total system.”9

McNutt’s executive reorganization bill, consolidating existing com-missions, boards and bureaus into eight “departments,” was presented to the general assembly in January of 1933 and enacted in one day, under a suspension of the rules. “It was said [about this and other bills in McNutt’s ‘legislative package’] that often the legislators had to await publication of the bills to know what they had actually passed.”10

Or, as described by historian James H. Madison: “Democratic dominance of state government in 1933 was most forcefully displayed in the state legislature that sat from early January to March 6 of that depression year, adjourning two days after Roosevelt took office.... The legislators themselves seemed often to be playing bit parts in the drama and at times even to be members of the audience. Seldom had an Indiana governor so dominated a legislature.”11

More from Schneider's story, showing that Daniels' has not cast quite the same spell over the General Assembly as Governor McNutt did:
So far, the will of the legislature has been to overhaul a lot of Daniels' proposals.

HB 1002 was heavily amended so the governor cannot fire the ethics commission members at will, and the inspector general will have to get approval from a state appeals court judge before appointing a special prosecutor.

Some of the changes Daniels is seeking are going nowhere.

He wants to be able to appoint his own secretary of education, eliminating the elected superintendent of public instruction.

Two Senate bills that propose that are consigned to the Senate Rules Committee, generally a death sentence. A House bill creating an appointed superintendent is stuck in a committee, with no vote scheduled. * * *

Daniels created a controversy when he took office and asked for the resignations of all members of state boards and commissions, even though state law sets their terms. He said that close to half have complied.

Several lawmakers, including Garton, said they would not approve of letting a governor appoint and fire commission and board members at will.

"They may be right about staggered terms," Daniels said. "Maybe we should have just forgotten the whole idea."

The Fort Wayne Journal Gazette has a related story today, by Niki Kelly, headlined "Democrats decry shift in power to Daniels: Governor denies claim, vows active leadership." Some quotes:
Gov. Mitch Daniels has aggressively leapt into his job of running Indiana, causing some to accuse the new chief of trying to seize more authority and control over state government at the expense of the public and the legislature.

This “centralization of power” – as Democrats have labeled it – has slowly unfolded while committees mull multiple pieces of legislation giving more and more power to the governor.

In addition to his legislative agenda, Daniels’ assertive nature has riled some Hoosiers – such as when he asked members of 17 policy-making boards and commissions to resign even though their terms had not expired in order to reshape the panels with his own appointees.

“The main story in the last six weeks is the power-grab of the governor,” said Rep. Win Moses Jr., D-Fort Wayne. “I’ve never seen a person try to grab so much power, and it’s unnecessary. He can be a good governor without it.” * * *

Daniels dismisses the claim that he is going too far, too fast. “It’s inaccurate completely. I haven’t sought any authority that doesn’t reside in this office,” he said. “Maybe the loyal opposition is unused to a vigorous governor. Maybe they would prefer a passive one but for four years they’ve got one who believes it’s our duty to use the tools that are here as actively and vigorously as we can.” * * *

Sen. David Long, R-Fort Wayne, concedes the issue of a power-grab has certainly been discussed by various legislators. But he doesn’t believe Daniels is in the middle of a takeover.

“He’s an agent of change, and he’s trying to change the culture,” he said. “I’m not troubled by the fact these ideas are out there because I think there will be a lot of compromise. He’s challenging us with new ideas.”

Several weeks ago, Daniels compared some of his plans to shifting responsibility.

“There are two ways to look at it. It could be described as power. It could be described as tossing the hot potato. And I’m willing to catch these potatoes if this is the way to make progress,” he said. “I know that it’s hard for legislators to sometimes make these specific decisions. They have to face special interests who are deeply committed to one thing, one board, one service, one level of reimbursement.

“If it is better from their standpoint to hand the job to us, so be it.”

Moses found the comment condescending at best. “All legislators want to do what’s right for their district. To hide his attempt to gain more power behind helping us is ridiculous,” he said. “We don’t have any choice but to fight back.”

Finally, more from Schneider's story:
Daniels said he wants to "challenge that idea" that Indiana has a "weak-governor system." That label comes because unlike governors in 43 states, Indiana's chief officeholder does not have a line-item veto.

And Indiana is one of only six states that let legislatures override a governor's veto by a simple majority vote, rather than a supermajority of two-thirds or three-fourths.

But, Daniels said, the governor in Indiana has enormous power to make appointments and immense control over the state's purse strings. While the legislature writes the budgets, the governor's budget agency doles out the money -- or not. That's a power even the president doesn't have, he said. "I wish I'd had that in Washington. I really would have been 'The Blade,' " he said, referring to Bush's nickname for him.

There are two other powers that Daniels would like to have -- the line-item veto and the supermajority to override vetoes. Both are solidly opposed by Republicans and Democrats in the legislature.

"I could well advocate it," he said of the vetoes. But not this year. And, he added, probably not for himself. "This is the sort of thing a governor should seek for his successor," he said. For now, he insisted, "this office has all the authority it needs. I'm really not asking the legislature for anything more."

My take on the line-item veto, as I have mentioned before, is that the real problem is "log-rolling" - particularly with the budget bill - and the answer is not the line-item veto, but rather enforcment, either by the General Assembly itself, or by the Supreme Court, of the one subject requirement of the Indiana Constitution.

Posted by Marcia Oddi on Sunday, February 13, 2005
Posted to Indiana Government

Indiana Courts - Two Clark County judges' spending criticized

The Louisville Courier Journal reports today, in a lengthy story by Alex Davis headlined "2 Clark judges' spending criticized: Questions raised, given budget crisis," that:

As Clark County struggles with budget problems, its elected judges have used thousands of dollars in public funds for such things as donations to after-prom parties and the purchase of office decorations, including portraits of nature scenes, scented candles and a stained-glass window.

Routine audits of the county's finances by the Indiana State Board of Accounts show the purchases did not violate state law.

But some county officials question whether the expenditures were appropriate.

And the two judges whose spending has been questioned -- Steve Fleece and Jerome Jacobi, both of Superior Court -- acknowledged in interviews that some of the decisions they made were unwise.

Most of the money in question -- totaling hundreds of thousands of dollars in a typical year -- comes from special user fees collected by the county probation department and the Drug and Alcohol Services Program.

Although the vast majority of the fee money appears to have been spent on acceptable items, the budgets of all four of the county's courts have come under heightened scrutiny in recent months because of the county's financial struggles.

Posted by Marcia Oddi on Sunday, February 13, 2005
Posted to Indiana Courts

Saturday, February 12, 2005

Ind. Gov't. - [Updated] More on "the Governor shall reside at the seat of government"

Thursday, in this entry in which I quoted from Ruthie Holladay's column pointing out that the Indiana Constitution requires that "the Governor shall reside at the seat of government" I set out the relevant language thusly:

Art. 6, Section 5. The Governor, and the Secretary, Auditor, and Treasurer of State, shall, severally, reside and keep the public records, books, and papers, in any manner relating to their respective offices, at the seat of government.
However, Holladay's column identified the constitutional requirement as Art. 6, section 5 (b). That should have caused me to look further, as the section I quoted did not have subsections. But as the language I posted was taken from the Indiana Constitution on the Indiana Supreme Court's website, I assumed it was correct.

I should not have.

Today's (Saturday's) Indianapolis Star has a story by political reporter Mary Beth Schneider headlined "Daniels shelves Carmel home: No 'For Sale' sign will be placed on governor's residence, either, he tells media." A pull-quote on the front-page story again quotes from Article 6, Section 5 (b).

So I checked the version of the Indiana Constitution on the General Assembly's website. It reads:

Section 5. (a) The Governor, and the Secretary, Auditor, and Treasurer of State, shall severally keep the public records, books, and papers, in any manner relating to their respective offices, at the seat of government.
(b) The Governor shall reside at the seat of government.
(History: As Amended November 3, 1998)
Since November of 1998, therefore, only the Governor has been required to reside at the seat of government. One could conclude from the amendment that the citizens of Indiana really mean it, as they ratified (re-ratified?) this requirement only six years ago. The voters eliminated the requirement that the Secretary, Auditor, and Treasurer of State "reside at the seat of government, but reaffirmed it for the Governor.

Notice that the Lieutenant Governor is not mentioned in either version. Until the 1930s the (then separately elected) Lieutenant Governor did not have any constitutional or statutory responsibilities other than to preside over the Senate during the few months it was convened in session, once every two years, and to succeed the Governor, if necessary.

Note: In the past I have relied on the Court's version of the Indiana Constitution because it sets out the entire document at once. This means I can use the "Find" function on my browser to search the entire document at once. The General Assembly's version, on the other hand, is divided up into a separate document for each Article.

[Update 2/13/05]
Lesley Stedman Weidenbener writes today in her Sunday Louisville Courier Journal column. Some quotes:

Gov. Mitch Daniels may not be moving after all -- at least not right now, not to a pricey spread that he and the first lady were planning in Carmel.

The Republican said on Friday he asked his attorney to research the meaning of a constitutional requirement that the governor "reside in the seat of government." * * *

And on Friday, Daniels acknowledged that he hadn't known about the constitutional provision that may restrict where he lives.

"I'm going to be in full compliance with the constitution, whatever it means," Daniels said Friday. "If it means the residence must be in Marion County, then, by gosh, mine will be."

Daniels also said he plans to fix up the official residence and he acknowledged that many of the so-called repairs may not have to be done at all. The report said the home needed $1 million in security upgrades, about which Daniels sounded a bit circumspect. Some of the money included in the report would pay for curtains and other cosmetic changes. The house will need a new roof -- at a cost of $371,000, according to the report. Daniels said the repairs that need to be made will be -- but not with taxpayer money. He said he'll find another way.


My thoughts
are that given the recent reaffirmation of the requirement by the voters of the State, and given the fact that "seat of government" is pretty much a term of art, as in this quote in an earlier entry from the 1813 State Capital Act:
That from and after the first day of May next, the seat of government of the Indiana territory shall be, and the same is hereby fixed and established in the town of Corydon, in the county of Harrison, and the said seat of government shall be and remain in the said town of Corydon, until altered by law ...
any effort to reinterpret this provision will have difficulty meeting the straight-face test.

Weidenbener refers in her column today to the "$2.6 million in repairs" that may be needed on the current Governor's residence. The Indianapolis Star today, in its "Behind Closed Doors" column, has some details from the report:

Gov. Mitch Daniels' administration last week publicized a report it said called for $2.6 million in repairs on the governor's residence on Meridian Street, which was built in 1928.

The report, however, is a master plan -- a wish list of all of the needed improvements to the stately home.

The plan does call for some expensive steps -- such as some roof repairs and window replacement. But there are some smaller, less urgent projects that add up, too:

• $5,000 to kill and remove ivy growing on the residence.

• $4,000 a year to clean the gutters.

• $29,000 for new interior wall paint (the plan says many of the walls have not been painted since the beginning of the O'Bannon administration, in 1997).

• $38,000 in new window treatments, such as curtains, valences and sheers.

• $14,000 in new kitchen appliances.

Of the $2.6 million in upgrades, $740,140 is allotted for long-term capital projects -- such as a complete re-do of the home's pipes, which the report says do not appear to represent any immediate concern.

As a long-time owner of a large, old, high-maintenance home in a preservation district, I'd urge -- get some competitive bids on these figures! And you might get better bids if you don't announce what you expect to have to pay in advance.

Posted by Marcia Oddi on Saturday, February 12, 2005
Posted to Indiana Government | Indiana Law

Env't. - Water suit granted class-action status

"Water suit granted class-action status" is the headline to a brief story today in the Chicago Tribune:

DOWNERS GROVE -- A federal judge has granted class-action status to hundreds of homeowners living in an unincorporated area near Downers Grove that contend that eight businesses in the Ellsworth Industrial Park dumped chemicals that entered the groundwater and contaminated their drinking water.

U.S. District Judge John Darrah ruled Thursday that the class-action status applies to all those who lived at or owned property within an area bounded by Inverness Avenue to the north, 63rd Street to the south, Dunham Road to the east and Interstate Highway 355 to the west "whose properties may have been impacted, or a threat exists that it will be impacted," by the hazardous substances.

In 2001, state Environmental Protection Agency tests found that hundreds of private wells in the area had levels of trichloroethylene and tetrachloroethylene above maximum federal safety standards, according to the suit, filed in U.S. District Court in Chicago last April. The EPA traced the pollutants, which are contained in solvents, to the industrial park, the suit stated.

Posted by Marcia Oddi on Saturday, February 12, 2005
Posted to Environment

Ind. Courts - Three vying for the seat on the Lake County criminal court bench left vacant by Joan Kouros.

The Munster (NW Indiana) Times reports today:

CROWN POINT | A deputy prosecutor and two magistrates are headed to Indianapolis -- their names are anyway.

On Friday, the Lake County Judicial Nominating Committee narrowed the field of eight candidates vying for the seat on the criminal court bench left vacant by Joan Kouros.

Gov. Mitch Daniels will choose between Deputy Prosecutor Diane Boswell and court magistrates Glenn Commons and Kathleen Sullivan to appoint to the bench. * * *

The seat vacated by Kouros will officially be open Feb. 25. Judge Thomas Webber Sr. has occupied the bench since the Indiana Supreme Court suspended Kouros in July for failing to keep promises to run her courtroom more efficiently. The court made the suspension permanent in October.

Posted by Marcia Oddi on Saturday, February 12, 2005
Posted to Indiana Courts

Friday, February 11, 2005

Ind. Decisions - No transfer list for week ending February 11, 2005

There is no transfer list for the week ending February 11, 2005

Posted by Marcia Oddi on Friday, February 11, 2005
Posted to Indiana Transfer Lists

Ind. Law - Indianapolis firm, Hatchett & Hauck LLP , expands

I've received the following announcement:

Hatchett & Hauck LLP is pleased to announce that two new attorneys have recently joined the firm. After opening in June 2004, Hatchett & Hauck LLP welcomed Jaime K. Saylor as a new associate attorney in October 2004. Thomas W. Baker, IDEM’s former Chief of Remediation Counsel, is joining the firm in February 2005. Hatchett & Hauck LLP is an Indianapolis law firm focusing on environmental law issues.
The opening announcement from June 2004 is available here.

Posted by Marcia Oddi on Friday, February 11, 2005
Posted to Indiana Law

Ind. Decisions - Court of Appeals posts one today

Ronnie E. Polk v. State of Indiana (2/11/05 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge

Ronnie E. Polk appeals the post-conviction court’s denial of his petition for post-conviction relief. Polk raises two issues, which we revise and restate as: [1] Whether Polk was denied the effective assistance of trial counsel; and [2] Whether the trial court improperly enhanced Polk’s sentence. We affirm. * * *

The second issue is whether the trial court improperly enhanced Polk’s sentences. Polk argues that both of his convictions for possession within one thousand feet of a school were improperly enhanced because the police happened to stop Lamberson’s car within one thousand feet of a school and the stop occurred “in the middle of the night in the middle of summer, when no children were present at the school.” Our supreme court addressed this issue on direct appeal and held that “the school-zone enhancement applies to both of Polk’s possession convictions as a matter of statutory construction. . . .” Polk, 683 N.E.2d at 573.

Polk argues that P.L. 17-2001 § 29, effective July 1, 2001, codified as Ind. Code § 35-48-4-16, provided that this enhancement did not apply in two circumstances. Ind. Code § 35-48-4-16 provides, in pertinent part:

(b) It is a defense for a person charged under this chapter with an offense that contains an element listed in subsection (a) that:
(1) a person was briefly in, on, or within one thousand (1,000) feet of school property, a public park, a family housing complex, or a youth program center; and

(2) no person under eighteen (18) years of age at least three (3) years junior to the person was in, on, or within one thousand (1,000) feet of the school property, public park, family housing complex, or youth program center at the time of the offense.

(c) It is a defense for a person charged under this chapter with an offense that contains an element listed in subsection (a) that a person was in, on, or within one thousand (1,000) feet of school property, a public park, a family housing complex, or a youth program center at the request or suggestion of a law enforcement officer or an agent of a law enforcement officer.
The State argues that res judicata applies. “As a general rule, when an issue is decided on direct appeal, the doctrine of res judicata applies, thereby precluding the issue’s review in post-conviction proceedings.” Saunders v. State, 794 N.E.2d 523, 527 (Ind. Ct. App. 2003) (citing Ben-Yisrayl, 738 N.E.2d 253, 258 (Ind. 2000), reh’g denied, cert. denied, 534 U.S. 1164, 122 S. Ct. 1178 (2002)). The review of this issue is precluded because our supreme court decided this issue on direct appeal. Polk, 683 N.E.2d at 569-573.

Moreover, “subsequently enacted ameliorative statutes are available only if the statute becomes effective before sentencing.” Schwass v. State, 554 N.E.2d 1127, 1130 (Ind. 1990). Polk was sentenced on March 28, 1996 and the ameliorative statute did not become effective until July 1, 2001. Thus, the ameliorative statute is not available to Polk. The post-conviction court did not err by denying Polk’s claim that he is entitled to the benefits of Ind. Code § 35-48-4-16.

For the foregoing reasons, we affirm the post-conviction court’s denial of Polk’s petition for post-conviction relief. Affirmed.

FRIEDLANDER, J. concurs

BAKER, J. concurs in result with separate opinion
I fully concur with the majority on every issue, and I concur in result as to Part I.A. of the majority opinion. While I agree with the conclusions that the majority reached, I write separately to note the difference between a lack of standing to raise a claim and waiver of that claim. * * *

Posted by Marcia Oddi on Friday, February 11, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts two today

St. Charles Mfg Ltd v. Whirlpool Corp (ND Ill.) [6 pp.]

Before FLAUM, Chief Judge, and EVANS and SYKES, Circuit Judges.
EVANS, Circuit Judge. St. Charles Manufacturing Limited Partnership and St. Charles Acquisition Limited Partnership (we’ll refer to both as St. Charles) sued Whirlpool Corporation and Whirlpool Kitchens, Inc. for breach of two contracts which, in part, involve cleanup of environmental contamination at a site in Illinois. In turn, Whirlpool sued St. Charles for damages under the second contract. The district court granted summary judgment for Whirlpool and St. Charles appeals. Our review of a decision granting summary judgment is de novo. CAE, Inc. v. Clean Air Eng’g, Inc., 267 F.3d 660 (7th Cir. 2001). * * * Affirmed

USA v. Edwards, Carl (ND Ill.) [12 pp.]

Before ROVNER, WOOD, and SYKES, Circuit Judges.
SYKES, Circuit Judge. All crack is cocaine base but not all cocaine base is crack. This case presents the question of whether this distinction is meaningful for purposes of the enhanced penalties for cocaine base offenses under 21 U.S.C. § 841(b). The statute prescribes a mandatory minimum sentence of ten years for the manufacture, distribution, or possession with intent to manufacture or distribute 50 grams or more of “cocaine base.” 21 U.S.C. § 841(b)(1)(A)(iii). The federal Sentencing Guidelines also call for increased penalties, in the form of heightened base offense levels, for crimes involving “cocaine base.” See U.S.S.G. § 2D1.1(c). But while the Guidelines define “cocaine base” as “crack” for purposes of the higher penalties, see U.S.S.G. § 2D1.1(c), Note (D), the statute contains no such limiting definition. The question in this case is whether the mandatory minimum sentence in the statute applies, like the Guidelines, to crack offenses only. * * *

A footnote in Adams led the district court in this case to conclude that Booker notwithstanding, the applicability of the statutory ten-year minimum sentence to an offense involving “cocaine base” that is not “crack” is an open question in this circuit. * * * The district court found that the controlled substance in this case was not “crack” but was “cocaine base” and on that basis imposed the mandatory ten-year sentence. Id.

We reverse. Booker held that for purposes of the enhanced penalties in the Guidelines and the statutes “cocaine base” means “crack cocaine.” Booker, 70 F.3d at 489-90, 494. That holding controls here, and we decline to revisit it. We note a substantial divergence among the circuits on this issue. Some circuits, like this one, have equated the statutory term “cocaine base” to “crack.” Some have held that any form of “cocaine base” qualifies for the mandatory minimum sentence. Others have adopted a hybrid approach that includes any smokable form of cocaine base within the statutory term—including, but apparently not limited to, crack. See Part II, infra. * * *

A lingering and stratified circuit split on a matter of such importance to the administration of criminal justice surely warrants the attention of Congress or resolution by the Supreme Court. In the meantime, however, we reaffirm our circuit’s holding in Booker that for purposes of the mandatory minimum sentence in 21 U.S.C. § 841(b)(1)(A)(iii), the phrase “cocaine base” refers to cocaine base that constitutes crack. Edwards’ two ten-year sentences were premised on the district court’s factual finding that Edwards possessed noncrack forms of cocaine base and its legal conclusion that any form of cocaine base qualified for the mandatory minimum. The district court’s legal conclusion was in error; we therefore reverse and remand for resentencing in accordance with this opinion. Reversed.

__________
* Not to be confused with a more recent case from this circuit by the same name, United States v. Booker, 375 F.3d 508 (7th Cir. 2004), just affirmed by the United States Supreme Court, United States v. Booker, 543 U.S. ___, 2005 WL 50108 (January 12, 2005), which applied the rule of Blakely v. Washington, 124 S.Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), to the federal Sentencing Guidelines and found a Sixth Amendment violation. As a remedy, the Court severed and excised from the Sentencing Reform Act of 1984 the provision making the Guidelines mandatory, 18 U.S.C. § 3553(b)(1), effectively rendering the Guidelines advisory. Booker, 2005 WL 50108, at *16.

Posted by Marcia Oddi on Friday, February 11, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on new DNR appointment

James Wensits, South Bend Tribune political writer, has a just posted story about the "Lawyer picked to head state DNR."

[See also the update to my earlier entry this morning - scroll down four entries.]

Some quotes from the Wensits story:

Private business may be invited into Indiana's public state park system now that Kyle Hupfer, an Indianapolis lawyer who lives in Pendleton, has been named as the new director of the Indiana Department of Natural Resources.

During a statewide teleconference with reporters Thursday, Gov. Mitch Daniels and Hupfer hinted that they may look to public-private partnerships to help improve state parks.

Daniels noted that during his campaign stops around the state, many Hoosiers complained about deterioration of state parks.

The governor suggested during the teleconference that Hupfer, with his entrepreneurial background, will take a new approach to correct the decline of state-owned properties, and Hupfer said in a later interview that by teaming up with Indiana businesses, the state could get upgraded facilities in its parks. * * *

Former state Rep. Richard Mangus, R-Lakeville, said that state parks, including Potato Creek State Park in St. Joseph County, have "deteriorated terribly" in recent years because "we took the money away from them."

Mangus said the lack of funding has led to a lack of maintenance at the parks, with the exception of White River State Park and the state-run golf course at the former Fort Benjamin Harrison military facility in Indianapolis.

The former legislator said he wouldn't object to private enterprise building an inn at Potato Creek, providing it was a quality-built facility that followed the plan developed several years ago for such a building. * * *

Asked to comment on pending legislation that would legalize so-called "canned" hunting in fenced-in deer farms as small as 50 acres, Daniels said he and Hupfer had discussed the issue and found it "very troublesome."

The governor said he hasn't taken a position on the bill as yet, noting that the legislation is "in flux." Should the measure pass, such hunting areas would have to meet all federal and state laws, the governor said.

Hupfer said he would not be comfortable hunting in any situation other than what he called "fair chase" hunting, that is, hunting in areas that are not fenced, and said the issue needs further study.

Told by a reporter that his credentials had been questioned by hunters on Internet message boards, Hupfer said that when hunters get to know him, such fears will disappear and the "least criticism" of him will be on those message boards.

Posted by Marcia Oddi on Friday, February 11, 2005
Posted to Indiana Government

Ind. Courts - David C. Chapleau, the newest St. Joseph Superior Court judge

The South Bend Tribune has a story today by Marti Goodlad Heline about the robing ceremony for David C. Chapleau, the newest St. Joseph Superior Court judge. Those who particopated included:

The governor who appointed him, his boss in the city attorney's office and a former prosecutor who's now an appellate judge.

Posted by Marcia Oddi on Friday, February 11, 2005
Posted to Indiana Courts

Ind. Gov't. - Inspector General bill moving with opposition

"Inspector General bill moving with opposition" is the headline to a brief item today in the Indianapolis Star. A quote:

A bill creating the post of inspector general to investigate wrongdoing in state government [HB 1002] was approved Thursday by a sharply divided House Government Reform Committee. * * *

The bill underwent substantial changes in the committee to allay concerns from prosecutors around the state who felt the bill gave the executive branch powers that impinged on the authority of the judicial branch.

The bill was amended to say the inspector general could only become a special prosecutor with the approval of an appeals court judge.

Democrats on the committee, though, said the bill still represents an unprecedented increase in police powers for a governor. The inspector general will have the right to subpoena testimony and records from all current and former state employees.

The bill now moves to the full House for debate.

Last Friday's (Feb. 4th) ILB had a lengthy entry on this bill, titled "Inspector general post irks county prosecutors." The Munster (NW Indiana) Times today carried a report by Brenden O'Shaughnessy headlined "Dems question inspector general power: Investigations of state government could crowd local prosecutors." Some quotes:
INDIANAPOLIS | A bill to create an inspector general post advanced in a party-line vote Thursday, leading Democrats to accuse Gov. Mitch Daniels of grabbing power from elected county prosecutors.

House Bill 1002 would give the inspector general statewide power to investigate and prosecute matters related to state government in the effort to root out corruption and waste. Some said it could lead to witch hunts at every level of government touched by state agencies, employees or money.

"It's another form of control by the executive branch," said Rep. Bob Kuzman, D-Crown Point, an attorney. "It's a continuation of centralization of power in Indianapolis." * * *

The bill requires the inspector general to defer to the county prosecutor for six months before taking up an investigation. In the amended bill, Daniels' appointee -- former Clay County Prosecutor David Thomas -- also must get the approval of an Indiana Court of Appeals judge, who will weigh if it's in the state's best interest.

House Speaker Brian Bosma, R-Indianapolis, the bill's author, said 11 other states have inspector general positions. Along with other ethical reforms proposed, Bosma said the bill is critical to a healthier state government.

Posted by Marcia Oddi on Friday, February 11, 2005
Posted to Indiana Government | Indiana Law

Ind. Law - Attorney agrees to pay $1,000 fine in ethics probe

"Attorney agrees to pay $1,000 fine in ethics probe" is the headline to a Kevin Corcoran story today about an attorney who "supervised the Medicaid Fraud Unit's northwest Indiana office" and "used state time and equipment to further his private immigration law practice while he should have been prosecuting Medicaid fraud." More:

As part of the agreement, which the State Ethics Commission approved Thursday, Donald Thomas Baker waived his right to a public hearing but did not admit violating ethics laws or regulations. His fine is due by Feb. 21. Baker agreed his departure from Attorney General Steve Carter's office would officially be recorded as a resignation. He earned $57,000 annually.

"It was brought to our attention through another employee," said Staci Schneider, a Carter spokeswoman. "All employees should follow our ethics guidelines."

In addition, the ethics panel voted to refer Baker to the Indiana Supreme Court Disciplinary Commission for further action, said Nina Brahm, staff counsel for the commission. The commission prosecutes disciplinary cases against attorneys. But the court might lack jurisdiction over Baker because he's no longer practicing law in Indiana, according to the state clerk of courts.

To see recent Final Resolutions of Indiana disciplinary cases against attorneys, see this list on the Indiana courts site.

Posted by Marcia Oddi on Friday, February 11, 2005
Posted to Indiana Law

Ind. Gov't. - [Updated] More on Daniels cabinet appointments; and more on DNR

The Indianapolis Star has a longer story today on Gov. Daniels' appointment to head the Department of Natural Resources. A quote from the report by Tammy Webber:

Kyle J. Hupfer, 32, a partner at Ice Miller, will inherit a position held for the past three years by a popular director, John Goss, and an agency struggling with decreasing state funding and staff to oversee hunting and fishing, conservation, state museums and parks, floodway filling, coal mining and oil and gas drilling.

This was Daniels' final Cabinet appointment. The governor said he delayed filling the post until he found "just the right person."

I was struck by the statement that "This was Daniels' final Cabinet appointment." First, what positions comprise the "cabinet"? Second, I would think that the State Department of Health would be an important part of any cabinet, and no health commissioner has yet been appointed, although I'm told a new deputy commissioner named Susan Uhl starts on Monday.

[Update at 11:05 a.m. - I'm told that "During the news teleconference yesterday, Daniels said this was his final cabinet appointment." Actually, I think there are a bunch of spots yet unfilled (or maybe they are not "cabinet" positions), such as the heads of the professional licensing agency, the health professions bureau, and of course the now again vacant insurance commissioner position. Also financial institutions, unless I missed the announcement. And perhaps more. But by far the most important, in my view, is state health commissioner.]

The story also contains quotes from Dick Mercier, president of the Indiana Sportsmen's Roundtable and Paula Yeager, executive director of the Indiana Wildlife Federation, both of whom wish the the new director well. In addition:

Yeager and Mercier also hope Daniels and Hupfer will oppose two bills: One would legalize "canned" hunts, in which deer are shot on private farms, sometimes while they're penned, and the other would divert money from the Heritage Trust Fund -- set aside from the sale of environmental license plates to buy public land -- for park maintenance.

Mercier worries that Daniels' focus on fixing state parks will provide leverage for the license plate bill.

"If the license plate bill passes, I will immediately turn in my environmental license plate and would recommend to (members of his organization) that they never buy one again," he said.

The license plate bill is HB 1451, which is currently in House committee. This Feb. 5th ILB entry quoted from a strong column against the bill by Don Mulligan, who writes "Outdoors with Don" for the The Kendallville Evening Star & Herald Republican.

The "canned deer hunt" bill is HB 1780. Here is one of many pieces criticizing it; this one from the 1/24/05 Indianapolis Star.

Finally, the Fort Wayne Journal Gazette has an editorial today about the dangers posed by Indiana's poorly maintained dams. A quote:

As the Indiana Department of Natural Resources presses dam owners to make safety improvements, the state itself owns dams needing significant repairs and lacking a way to warn residents of an emergency.

Posted by Marcia Oddi on Friday, February 11, 2005
Posted to Environment | Indiana Government

Thursday, February 10, 2005

Ind. Gov't. - A more responsive BMV?

This piece was in yesterday's online Chesterton Tribune (my hometown):

In what is being called the power of a single citizen, Social Security numbers have now been removed from mailings of the Indiana Bureau of Motor Vehicles.

State Rep. Ralph Ayres, R-Chesterton, announced last month that he got assurances from BMV Commissioner Joel Silverman that the numbers would be removed from license plate renewal notices, due to a concern about the ease of identify theft by having the numbers on the mailings.

A press release issued by Ayres this week states that the numbers appeared on notices through last week, but that no more notices with the numbers will be mailed.

Ayres praised Silverman for his expedient work on the matter.

Ayres was notified of the problem by a Chesterton resident, followed by five other constituents in his district. “The ideas and concerns of one citizen can help change the rules, which are beneficial to neighbors as well as the individual,” Ayres said. “Resolving this problem as quickly as we did is really the product of teamwork from a combined effort on the part of legislators and executive agencies on down to the constituent.”

Posted by Marcia Oddi on Thursday, February 10, 2005
Posted to Indiana Government

Ind. Decisions - Supreme Court posts two today

Carolyn S. Beckley v. Jack D. Beckley (2/10/05 IndSCt] [Family Law]
Rucker, Justice

The question presented is whether an award of benefits under the Federal Employers’ Liability Act (FELA) is a part of the marital estate subject to distribution. We conclude: only that portion of the award intended as compensation for losses incurred during the marriage is included in the marital estate. * * *

In summary, we hold that any part of a FELA award representing future losses is not marital property subject to distribution. Rather, only that portion of the award intended as compensation for past losses, that is, losses incurred during the marriage, is included in the marital estate.

This does not mean that the trial court’s judgment in this case should be reversed. True, there was evidence before the trial court indicating that the FELA award was “based upon [Husband’s] lost future earnings and earning capacity” and also took into account Husband’s “pain and suffering.” However, it is also true that there was no evidence presented to the trial court indicating which amounts were attributable to past pain and suffering – a marital asset subject to distribution—versus the amounts attributable to lost wages or future income – non assets not subject to distribution. * * *

It was Husband in this case who sought to exclude the FELA award as marital property. Although that portion of the FELA award based upon lost future earnings and earning capacity, similar to workers’ compensation benefits, is “not a vested property interest subject to distribution as a present marital asset. . . .”, Leisure, 605 N.E.2d at 759, here, Husband failed to carry his burden of proof demonstrating that a portion of the award should not have been included in the marital estate. Therefore we cannot say that the trial court erred by including the entire award in the marital pot and distributing it accordingly.

Conclusion. We affirm the judgment of the trial court.

Shepard, C.J., and Sullivan and Boehm, JJ., concur.
Dickson, J., concurs in part and dissents in part with separate opinion.

Dickson, J. concurring and dissenting. I concur with the majority's conclusion that any part of an FELA settlement representing future losses is not marital property, and that any portion intended as compensation for losses incurred during the marriage is included in the marital estate. I disagree, however, with the majority's decision to create a presumption that all assets of either or both parties in a dissolution case are marital property subject to division.

* * * Because the trial court's conclusions are thus clearly erroneous as a matter of law, its judgment should be vacated and this cause remanded for a redistribution of marital property.

Instead of remanding for further consideration, however, the majority creates an evidentiary presumption and finds that the husband failed to sustain his burden of proof to rebut this new presumption—one that did not exist at the time the parties presented their evidence and the trial court evaluated it. At the least, the parties and the trial court should be given an opportunity to apply this new presumption to the facts of this case. I believe that remand is appropriate.


The City of Gary, et al. v. Ronnie Major & Affordable Towing and Associates
(2/10/05 IndSCt) [ ]
Rucker, Justice
The City of Gary, the Mayor of Gary, and members of the Gary City Council appeal a trial court finding of contempt and a corresponding award of monetary damages. We affirm the contempt finding but reverse the award of damages. * * *

The judgment of the trial court is affirmed in part and reversed in part. This cause is remanded for further proceedings not inconsistent with this opinion.

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

Posted by Marcia Oddi on Thursday, February 10, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals posts two; Tax Court posts one today

Gretta Sharp v. Tom Wood (12/6/04 IndCtApp) [Contracts]
[Previously NFP]
Baker, Judge

Appellant-plaintiff Gretta Sharp appeals the trial court’s grant of summary judgment in favor of appellee-defendant Tom Wood East, Inc. (Tom Wood). Specifically, Sharp asserts that the trial court erred in granting summary judgment because genuine issues of material fact existed as to whether the vehicle she purchased from Tom Wood was merchantable when accepted and whether she was damaged as a result of the alleged unmerchantability. Finding no error, we affirm. * * *

Thus, Sharp has already been compensated more for the vehicle than her estimation of its worth. In light of the above, we find that the trial court did not err in granting summary judgment in favor of Tom Wood. The judgment of the trial court is affirmed.
SHARPNACK, J., and FRIEDLANDER, J., concur.

Carl A. Levy, M.D. v. Tracy & Mark Newell (2/10/05 IndCtApp) [Statute of Limitations]
Hoffman, Senior Judge
Appellant-Defendant Carl A. Levy, M.D. appeals the trial court’s denial of his motion for summary judgment in an action filed by Appellees-Plaintiffs Tracey L. Newell and Mark D. Newell. We reverse and remand with instructions.

Levy raises one issue for our review, which we restate as whether the trial court erred in determining as a matter of law that the Newells’ complaint and proposed complaint were not barred by the applicable statute of limitations. * * *

On October 23, 2001, approximately eighteen months before the expiration of the limitation period, the Newells’ felt the need to direct their attorney to write the letter referring to Tracey’s “strong” belief that Levy had committed malpractice. We hold as a matter of law that the Newells possessed sufficient knowledge by October of 2001, if not sooner, to put a reasonable person on notice that malpractice had caused the injury to Tracey’s bile ducts. Thus, at the very least, the Newells had over fourteen months in which to file a malpractice suit against Levy. Enforcement of the two-year occurrence-based statute of limitation neither denied the Newells a meaningful opportunity to pursue their malpractice claims nor shortened the window of time between discovery and the expiration of the limitation period so unreasonably that it was impractical for them to file their claim. Reversed and remanded with instructions that the trial court grant Levy’s motion.
ROBB, J., and BARNES, J., concur.

Kohl's Department Stores, Inc. v. Indiana Department of State Revenue (2/9/05 IndTaxCt) [Income Tax]
Fisher, J.
Kohl’s Department Stores, Inc. (Kohl’s) appeals the Indiana Department of State Revenue’s (Department) denial of its claims for refund of income tax paid during the tax years ending February 1, 1997, January 31, 1998, and January 30, 1999 (the years at issue). The matter is currently before the Court on the parties’ cross-motions for summary judgment. The sole issue for the Court to decide is whether Kohl’s was required to seek the Department’s permission to discontinue filing combined Indiana income tax returns. * * *

Accordingly, the Department’s interpretation of Indiana Code § 6-3-2-2(q) must be rejected and the language of the statute will control. See footnote “[L]egislatures make the tax statutes and courts enforce them as written, not as departments of revenue may wish they had been written.”See footnote Indiana Dep’t of State Revenue v. Endress & Hauser, Inc., 404 N.E.2d 1173, 1178 (Ind. Ct. App. 1980).

CONCLUSION. For the above stated reasons, the Court GRANTS the Petitioner’s motion for summary judgment and DENIES the Department’s motion for summary judgment.

Posted by Marcia Oddi on Thursday, February 10, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts two today

Hays, Jon R. v. USA (SD Ill.) [10 pp.]

Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. Jon Riley Hays, a licensed medical doctor, pled guilty to two charges stemming from his illegal use of OxyContin. Count I charged Hays with tampering with a consumer product, and Count II charged him with possession of a controlled substance by misrepresentation or fraud. Hays was sentenced to fifty-one months in prison for Count I and a concurrent sentence of forty-eight months for Count II. Hays now asks for collateral relief under 28 U.S.C. § 2255, claiming that his attorneys provided ineffective assistance and that his plea was not voluntary because he did not understand the nature of the charges against him. The district court denied his motion. For the reasons set forth in this opinion, we affirm.

Trustees Chicago Pai v. LaCosta Inc (ND Ill.) [10 pp.]

Before KANNE, EVANS, and SYKES, Circuit Judges.
KANNE, Circuit Judge. The President and sole shareholder of LaCosta, Inc. completed and signed a one-page free membership application from the Chicago Painting and Decorating Contractors Association (“Chicago PDCA”). The membership offer indicated that applicants agreed to abide by the constitution and bylaws of the Chicago PDCA, which appoint that organization as the bargaining representative of its active members and bind them to the collective bargaining agreement (“CBA”) between the Chicago PDCA and District Council 14. The terms of the CBA require Chicago PDCA members to contribute to the Chicago Painters and Decorators Pension, Health and Welfare, and Deferred Savings Plan Trust Funds (“Funds”). The Trustees of these Funds filed an action to collect contributions from LaCosta, which did not pay any money into the Funds after submitting the membership application. Because we find that LaCosta did not demonstrate an unequivocal intent to be bound by the District Council 14 CBA, we affirm the district court’s grant of summary judgment for LaCosta.

Posted by Marcia Oddi on Thursday, February 10, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Law - The Governor shall reside in the "seat of government"

The Indiana Constitution:

Art. 5, Section 20. Should the seat of government become dangerous from disease or a common enemy, the Governor may convene the General Assembly at any other place.

Art. 6, Section 5. The Governor, and the Secretary, Auditor, and Treasurer of State, shall, severally, reside and keep the public records, books, and papers, in any manner relating to their respective offices, at the seat of government.

I admit to having forgotten these references to the "seat of government" until reminded this a.m. by Ruthie Holladay's column today in the Indianapolis Star. It concludes:
Daniels vowed to abide by the state constitution. Even if it means delaying a move to the dream home. Then he promised to get some bedding into the governor's residence this week. That might be a good idea, considering that voters are watching.
Daniels also makes these points in Holladay's column:
First point: "The governor's residence is a great place and our goal is to fix it and make it a home for us and future governors. But it was jarring to be handed this recommendation that we spend $2.6 million in taxpayers' money at a time when we are asking everyone be careful. That (spending taxpayer money) is not going to happen," he says. His administration will "find a better way" to raise money for the renovations, he says.

Second point: Some people, and not just Democrats, have gotten the idea that the governor and his wife think they are too good for Meridian Street. Absurd, he says. "It is far more beautiful and expensive than any home Cheri and I have ever lived in."

Finally, about that constitutional conflict. "The first revelation this week was that the renovation would cost $2.6 million. The second was that constitutional rule."

"Seat of government" was a common term in the early days of our State. Here, from the 1813 State Capital Act:
That from and after the first day of May next, the seat of government of the Indiana territory shall be, and the same is hereby fixed and established in the town of Corydon, in the county of Harrison, and the said seat of government shall be and remain in the said town of Corydon, until altered by law ...

Posted by Marcia Oddi on Thursday, February 10, 2005
Posted to Indiana Government

Ind. Gov't. - Ice Miller attorney appointed DNR chief

The Indianapolis Star website is reporting:

Kyle Hupfer was named director of the Indiana Department of Natural Resources today. Gov. Mitch Daniels made the announcement. * * *

Hupfer, a Pendleton native, has been a partner at the law firm of Ice Miller in Indianapolis where he concentrated on mergers and acquisitions, corporate finance, and general corporate counseling. Hupfer earned his law degree at the Indiana School of Law-Indianapolis in 1998 and his undergraduate degree in business from Manchester College in 1995.

Posted by Marcia Oddi on Thursday, February 10, 2005
Posted to Indiana Government

Ind. Law - What is being done to resolve the "PERF Privacy" issue from last session?

When I was doing the last entry on public records, I ran across a number of entries from last year on the "PERF Privacy" issue. Here is a review of the issue and a look at what, if anything, is happening this year.

First, the entries from last session.

The initial entry, from March 11, 2004, was based on an Indianapolis Star editorial which said, in part:

A little-noticed amendment to a pension bill passed during the just-concluded legislative session could cost taxpayers dearly by locking the door to public records.

Gov. Joe Kernan should veto House Bill 1285 and urge the legislature to honestly address the issues of privacy and accountability that the measure purports to resolve.

On the surface, the bill seems innocent enough. It requires a feasibility study of early withdrawals from the Public Employees Retirement Fund in cases of dire need. The rub, however, is an amendment, offered by Sen. Joseph Harrison, R-Attica, that would declare all retirement fund members' records -- including those of legislators -- confidential.

The amendment is a backlash to efforts by WTHR (Channel 13) to review PERF records in the course of a probe into possible mishandling of those funds. Media investigations in other states have turned up public pension fraud that has poured millions into undeserving pockets, and PERF is fair game given its management scandals and a criminal conviction within the past year.

But when Channel 13 asked to review PERF records, and state Public Access Counselor Michael Hurst opined that the law did not stand in the way, the legislature slammed the door, as it has done routinely on public information issues in recent years.

Additional entries followed:Second, of course Governor Kernan was not relected. But what, if anything, is being done to resolve this public records issue this session?

I found one bill introduced this year to resolve the problem, House Bill 1195. The bill is authored by Representative Thompson and assigned to the Committee on Employment and Labor. Its digest reads:

Pension contributions. Provides that records concerning mandatory contributions by the state or another employer to a public retirement fund that are paid on behalf of and individually identifiable to a fund member are public records.
As far as I know, no committee hearing has been scheduled for this bill.

Posted by Marcia Oddi on Thursday, February 10, 2005
Posted to Indiana Government | Indiana Law

Law - Kentucky papers are doing an audit of public records availability

"Open records sometimes aren't" is the headline to one of a number of stories this week in the Louisville Courier Journal about the results of a "statewide survey to determine whether public offices are allowing citizens to view government documents."

A number of Indiana papers conducted an Indiana audit last fall. Here is a great comprehensive report on the Indiana results.

Posted by Marcia Oddi on Thursday, February 10, 2005
Posted to General Law Related | Indiana Law

Ind. Decisions - Police interference with protesters ruled illegal

Kevin O'Neal reports in the Indianapolis Star today that:

A federal judge has ruled that Indianapolis police wrongfully prevented demonstrators from walking on the Circle on their way to protest at the 2003 National Governors Conference.

"An ordinary police officer should have recognized that such interference was unwarranted and unconstitutional," U.S. District Judge John D. Tinder wrote in a decision Wednesday.

Allowing police to force a group of peaceful protesters away from the center of Downtown Indianapolis would leave the constitutional promise of free expression "as hollow as a snare drum," Tinder wrote in issuing a summary judgment in favor of the marchers.

"The city was basically saying it had a right to resist people who were obeying all traffic signals," Kenneth Falk, legal director of the Indiana Civil Liberties Union, said.

Kobi Wright, counsel for the city of Indianapolis, said he was surprised by the decision.

"The city still stands by the officers' decision and the need that traffic flows freely," Wright said.

The judge's decision sets the stage for a trial to decide if the Indianapolis Police Department must pay monetary damages to the protesters.

Judge Tinder's opinion is not yet available on the opinion page of the website for the US District Court for the Southern District of Indiana.

Posted by Marcia Oddi on Thursday, February 10, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Bingo bill passes Senate Tuesday

The bingo bill (SB 140) passed the Senate Tuesday. The amended digest:

Use of charity gaming proceeds. Prohibits the department of state revenue (department) from adopting a rule requiring a qualified organization to use a minimum percentage of its gross receipts from allowable events for its lawful purposes. Eliminates the department's authority to set by rule the allowable expenditures of a qualified organization with respect to an allowable event. Sets forth the expenses that may be subtracted from gross receipts to determine a qualified organization's net proceeds from an allowable event. Voids certain rules adopted by the department regarding the use of charity gaming proceeds.
The ILB background:

June 28, 2003 - Bingo halls sue state over new regulations

August 11, 2004
- Trial Court Decides Bingo Rulemaking Flawed

September 15, 2004 - Update on Flawed Bingo Rules

December 18, 2004 - Impact of bingo rulemaking decision reflected in annual Dept. of Revenue report

Posted by Marcia Oddi on Thursday, February 10, 2005
Posted to Indiana Government | Indiana Law

Ind. Law - More on red-light cameras

The Cincinnati Enquirer has a story today headlined "State could red-light cameras." Some quotes:

State lawmakers could block Cincinnati's attempts to catch speeders and red-light runners by using unmanned radar-equipped digital cameras.

State Rep. James T. Raussen said he will introduce a bill today banning the cameras, saying Cincinnati and other cities are moving too fast to install them without studying their safety effects first.

"Everyone's catching camera fever, and I don't think we've had enough debate on this to go that route yet," the Springdale Republican said Wednesday. * * *

Raussen pointed to a North Carolina State University study - funded by the U.S. Department of Transportation - that showed that rear-end collisions actually increased in cities with red-light cameras, as motorists stopped abruptly at yellow lights to avoid a ticket.

But other studies by the insurance industry suggest a corresponding decrease in more dangerous side-impact crashes.

"Somebody has to speak up for the public here," Raussen said. "I've seen no public debate. Is it really for public safety?"

See this Feb. 2nd ILB entry titled "State may jump on red-light camera bandwagon," about the proposal in the Indiana Senate, SB 570. That bill, which would establish pilot programs in 10 Indiana cities, is now eligible for 2nd reading in the Senate.

Posted by Marcia Oddi on Thursday, February 10, 2005
Posted to Indiana Law

Law - The kind of PR no law firm needs!

Chicago Tribune columnist John Kass had a column yesterday titled "Lost dog, lawyer, crying boy: Story has everything." Some quotes:

Hey, did you hear the one about the Chicago lawyer who found a 7-year-old Florida boy's lost dog and took it home to Chicago?

And how the alleged dognapping Chicago lawyer now refuses to return the dog to the boy, because the lawyer says he gave it to a mystery nun whom he won't name?

You didn't hear that one?

It's no joke to Miles, the little boy from Cape Coral, Fla., who misses his dog. Miles was sobbing on the phone.

"Please," Miles said, crying. "Can I have my dog back? Can I have my dog back, please?"

The Florida boy's father [Korzeniewski] wrote to the lawyer's [Foley's] partners to complain about Foley's conduct, according to the column. The result:
Curiously, [Foley] said the lawyers at Hoey & Farina were amused at the letter from Miles' parents. "They laughed at it," Foley said.

It must be a lawyers' joke. Someone might want to call Hoey & Farina in Chicago and ask them to explain the amusing punch line. I just don't get it. It doesn't amuse me.

As you read this Wednesday, Ariel has been held hostage in Chicago for 40 days.

And I keep thinking of Miles, the little boy, crying, asking me, "Can I have my dog back, please?"

TODAY John Kass has a second column, titled "Readers ring up a happy ending for dog story." More quotes:
Korzeniewski said he didn't want the readers of this column to miss it either. He wanted you to see the reunion in the photograph running on Page 1 of today's newspaper.

That's only fair, since you're the ones who called Foley's law firm--Hoey & Farina--in such numbers that you swamped the office phones and panicked the secretaries and apparently blew out the computer server with angry anti-lawyer e-mails.

What bothered me and most readers is that weeks ago, after Foley knew the dog had a boy in Florida, he didn't return her. He continued to stall even after the Florida family wrote an angry letter to his law firm and called the police.

Foley told me that he and the other lawyers at the firm were amused by the letter from Miles' parents and said the lawyers "laughed at it."

That incensed you readers. Laughing at a boy and his family over a hostage dog might be funny to some people, but not to a 7-year-old boy, and not to the thousands of readers who called or e-mailed the law firm Wednesday.

So I called the boss of the firm, James Farina, and asked him whether the letter was indeed, funny, like a clown.

"I didn't laugh," he said. "There was no laughter at that letter. Nobody laughed."

I didn't have to mention that the firm received the letter weeks ago, yet no immediate action was taken to send the dog back home. So I asked if there was any news.

Posted by Marcia Oddi on Thursday, February 10, 2005
Posted to General Law Related

Ind. Gov't. - Appointment of new DNR head anticipated today

Indiana Daily Insight is reporting this morning:

Expect the Governor to name a new director of Natural Resources today -- and we hear that it will be an Indianapolis attorney who is an avid outdoorsman . . . and whose 6' 7" frame will tower over most DNR employees.

Posted by Marcia Oddi on Thursday, February 10, 2005
Posted to Indiana Government

Wednesday, February 09, 2005

Env't. - Agriculture Today interview with new IDEM head

"Easterly making changes at IDEM" is the headline to this story in Argiculture Today:

The Indiana Department of Environmental Management (IDEM) has topped the list of least favorite state agencies by most of Indiana agriculture. Battles over enforcement of environmental regulations and numerous confrontations by IDEM inspectors on Hoosier farms prompted Governor Daniels to make sweeping changes in the agency. One of his first jobs was to appoint Tom Easterly as the new Commissioner of IDEM. In the past month Easterly has been busy making changes at the department.

Easterly told Brownfield, in an exclusive interview, that his first move was to eliminate two levels of management at IDEM that were responsible for the adversarial relations with the farming community. “I am sending the message up and down the agency that our goal is to help people do the right thing,” Easterly said.

This re-education of IDEM staff extends to field inspectors, too. Easterly said IDEM inspectors how conduct on farm visits will begin a new process called “pilot inspections”. During these inspections IDEM staff will visit farms to learn about an operation and not do an actual inspection. “Our people would learn what they do not understand about an operation and what the farmer does not understand about the regulations,” Easterly explained. He also pledged to make the decision making process at the agency more transparent.

He urged those in the agricultural community to complain if they feel their concerns are not being addressed. He told producers not to hesitate to push complaints up the chain of command all the way to him. Easterly said he was been working closely with Andy Miller, the Director of the New State Department of Agriculture, to make sure farming issues are being addressed. Easterly believes that economic growth in the state’s farm economy is vital and feels it can be achieved while still protecting the environment. He said the agency will also continue to make the permitting and licensing process faster and more user friendly for producers.

Posted by Marcia Oddi on Wednesday, February 09, 2005
Posted to Environment

Ind. Decisions - 7th Circuit posts two today

Roquet, Nancy J. v. Arthur Andersen LLP (ND Ill.) [15 pp.]

Before RIPPLE, WOOD, and EVANS, Circuit Judges.
EVANS, Circuit Judge. This case involves the Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101-2109, better known by its shortened name, the WARN Act. The Act became law in 1989, and its purpose is to soften the economic blow suffered by workers who unexpectedly face plant closings or mass layoffs. Among other things, the Act requires that companies subject to its reach (generally large employers) give employees 60 days notice in advance of any mass layoffs or plant closings. The notice gives affected workers a little time to adjust to a job loss, find new employment, or, if necessary, obtain retraining.

Our case, however, is not your typical WARN Act fare as it involves hot-button topics like “Enron,” “document shredding,” and “indictment.” And it concerns an exception to the WARN Act’s notification requirement: the Act’s 60- day-notice obligation is eliminated, or reduced to a shorter term, if a mass layoff or plant closing is “caused by business circumstances that were not reasonably foreseeable as of the time that notice would have been required.” * * *

Andersen has appealed the district court’s entry of summary judgment for the plaintiffs on the question of whether its workforce reduction constituted a “mass layoff” under the Act. But because we agree with the court’s dismissal of the suit under the WARN Act’s “unforeseen business circumstances” exception, we need not address the contention. The judgment of the district court is AFFIRMED.

WOOD, Circuit Judge, dissenting. * * *

The majority worries that giving the required WARN Act notice might exacerbate problems for a floundering company. While this may be true, the fact is that Congress weighed the interests of companies and workers in the statute, and it drew the 60-day line we have. Companies can protect themselves to a certain degree in the wording of the notices they give. As I stated above, the company need not be able to identify each affected employee by name; a general notice, alerting the employees as a group to the possibility of a layoff, is what the statute requires. Finally, at least on the present facts, Andersen’s troubles were not exactly a state secret. There was nothing left to hide after March 14, when the indictment hit the front pages of the country’s newspapers. By March 1, it was reasonably foreseeable to the firm that it would need to reduce its staff drastically. For these reasons, I would reverse and remand for further proceedings. I respectfully dissent.

NLRB v. Curwood Incorporated (NLRB Board) [18 pp.]

Posted by Marcia Oddi on Wednesday, February 09, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals posts four today


William Collins v. State of Indiana
(2/9/05 IndCtApp) [Criminal Law & Procedure]
Najam, Judge

William Collins appeals his convictions for Possession of a Firearm by a Serious Violent Felon and Possession of Cocaine following a jury trial. He presents the following issues for our review: [1] Whether the trial court abused its discretion when it admitted evidence obtained following a warrantless residential entry. [2] Whether the trial court abused its discretion when it denied his motion for mistrial based on alleged prosecutorial misconduct. * * *

The evidence against Collins is substantial, and Blount’s proffered testimony is relatively insignificant in comparison.See footnote We hold that the Sixth Amendment violation was harmless error. Affirmed and remanded with instructions.
SULLIVAN, J., and BARNES, J., concur.

Steve Patterson v. Ronald E. Seavoy (2/9/05 IndCtApp) [Real Estate]
Najam, Judge
Steve Patterson appeals the trial court’s entry of summary judgment in favor of Ronald E. Seavoy and presents the following issues for our review: [1] Whether the grantee of an unrecorded deed is a real party in interest. [2] Whether Seavoy is entitled to summary judgment on the merits of Patterson’s negligence claim. We reverse. * * *

The date that Patterson recorded the second deed is immaterial. Bradley transferred title to the property to Patterson when he made, executed, and delivered a valid warranty deed on April 27, 1997, and that alone was sufficient to establish Patterson’s ownership of the property. As of that date, Patterson held legal title to the property, and Bradley could not have brought an action for damage to the property. Rather, as “the true owner of the right sought to be enforced,” Patterson is the real party in interest and is entitled to bring suit against Seavoy. See Hammes, 659 N.E.2d at 1030. * * *

Thus, we conclude that Patterson’s designated evidence raises a genuine issue of fact concerning the breach of any duty owed to Patterson to prevent a defective tree from posing a hazard to his land. Whether Seavoy exercised the requisite degree of care under the circumstances is a question for a trier of fact, and “the mere improbability of recovery by a plaintiff does not justify summary judgment against him.” Crossno v. State, 726 N.E.2d 375, 382 (Ind. Ct. App. 2000). “In negligence cases, summary judgment is rarely appropriate,” and this case is no exception. Rhodes, 805 N.E.2d at 387. Therefore, we hold that the trial court erred when it entered summary judgment in Seavoy’s favor. Reversed.
KIRSCH, C.J., and VAIDIK, J., concur.

Ernest Smith v. State of Indiana (2/9/05 IndCtApp) [Criminal Law & Procedure]
Najam, Judge
* * * Conclusion. We conclude that the PCR [post conviction relief] court did not abuse its discretion when, after ordering the cause submitted by affidavit under Post Conviction Rule 1(9)(b), it did not hold an evidentiary hearing on Smith’s petition. We further conclude that the PCR court’s denial of Smith’s petition is not clearly erroneous. Affirmed.
KIRSCH, C.J., and VAIDIK, J., concur.
The Money Store Investment Corp. v. Neal A. Summers, et al (2/9/05 IndCtApp) [Real Estate]
Darden, Judge
The Money Store Investment Corporation, d/b/a/ First Union Small Business Capital, ("Money Store"), appeals the trial court's order that granted summary judgment in its foreclosure action to intervenor and third-party plaintiff Paula Phillips. The order also held that Phillips had an in rem judgment against the real estate of Neal A. Summers, ordered foreclosure of various mortgages, and found the mortgages on Summers' real estate that Phillips had obtained by assignment on February 14, 2002 were superior to earlier mortgages held by Money Store. * * *
Affirmed.
FRIEDLANDER, J., and MATHIAS, J., concur.

Posted by Marcia Oddi on Wednesday, February 09, 2005
Posted to Ind. App.Ct. Decisions

Tuesday, February 08, 2005

Law - More on redistricting

"States See Growing Campaign to Change Redistricting Laws" was the headline to this story by Adam Nagourney in Monday's NY Times. Some quotes:

The politically charged methods that states use to draw Congressional districts are under attack by citizens groups, state legislators and the governor of California, all of whom are concerned that increasingly sophisticated map-drawing has created a class of entrenched incumbents, stifled electoral competition and caused governmental gridlock.

Largely uncoordinated campaigns stretching from California to Massachusetts are pushing to end, or at least minimize, a time-honored staple of American politics: lawmakers drawing Congressional and legislative district maps in geographically convoluted ways to ensure the re-election of an incumbent or the dominance of a party.

Last month, Gov. Arnold Schwarzenegger of California, a state that has historically been at the forefront of political reform movements, proposed putting retired judges in charge of redistricting, taking it out of the hands of the Legislature. Common Cause, one of the nonpartisan groups championing changes in the system, said campaigns to overhaul redistricting were under way in at least eight states, including California, Colorado, Florida, Georgia, Maryland, Massachusetts, Pennsylvania and Rhode Island.

The increased attention to the issue is in part due to the effectiveness of efforts in 2003 in Texas, where Republicans, with the backing of the White House, forced through a midterm redistricting that effectively cost four Texas Democrats their seats. The complaints are also spurred by the way computers and the enormous amount of available voting data have turned redistricting into a surgically precise procedure and opened up to anyone with a laptop what was once dominated by legislative tacticians with decades of knowledge. * * *

The obstacles to changing reapportionment remain huge, because state legislators, who in most cases have to approve any changes, are understandably loath to adopt a system that could put them out of work. That is why much of the effort to overhaul the system is focusing on states that allow for citizen initiatives that circumvent legislatures. * * *

"The self-dealing quality of legislators drawing districts for themselves or for their partisans has basically collapsed the enterprise," said Samuel Issacharoff, a visiting professor at New York University Law School and an expert on redistricting. "There's an increasing sense of revulsion among people at this self-dealing. It is somewhat scandalous that there are no competitive elections anymore." * * *

This has proven to be a volatile and complicated issue, with often competing interests. While a political party might want to redraw lines in a way that expands its control of Congressional and state legislative districts, legislators themselves are more likely to want to draw lines that protect their own careers - and Democrats and Republicans frequently strike deals on maps that are more about protecting incumbents than expanding party control. * * *

Analysts say redistricting is one of the causes of two problems that have bedeviled state legislatures and Congress over the past decade. The first problem is the lack of turnover. Aides to both parties say that Republicans have outmaneuvered the Democrats in maintaining an upper hand, particularly in redrawing Congressional district lines.

"You basically have 400 seats in Congress that are decided long before the general election - and Republicans have a 15- to 20-seat advantage," said Matthew Dowd, who was a senior adviser to President Bush's re-election campaign. "That puts them in a position where it's very hard to lose the House of Representatives."

The second problem is the extent to which redistricting contributes to polarization, as map-drawers cluster like-minded voters into the same districts. That makes it less likely that a candidate will work to appeal to swing voters. In those districts, the main worry for incumbents is often not a general election but a primary, because Republicans are more likely to move to the right, and Democrats to the left, to protect themselves.

But even advocates of changing the system say that creating more competition is, if desirable, not easy to do. And many experts say it is hardly clear that drawing straight lines that do not take into account any political factors - a neighborhood's voting history, or where an incumbent lives - will really achieve the desired change.

"The drum beat is a lot louder for reform," said Tim Storey, a senior fellow at the National Conference of State Legislatures. "But my sense is that very few members of Congress are going to be eager to change the rules on this. It's sort of the devil you know over the one you don't."

Some readers may recall an ILB entry from Jan. 9th titled "Schwarzenegger Proposes Overhaul of Redistricting." (That entry also includes a number of useful links.)

Today the LA Times ran a story headlined "GOP Fears a Redistricting Backfire: Schwarzenegger plan is seen as jeopardizing control of Congress." It begins:

SACRAMENTO — Worried about losing clout in Congress, influential Republicans in Washington are telling Gov. Arnold Schwarzenegger that he should drop his effort to redraw congressional voting districts in time for next year's elections and limit his focus to reshaping the state Legislature.

National Republican Party leaders — even Schwarzenegger's closest ally in the congressional delegation, U.S. Rep. David Dreier (R-San Dimas) — are pressing the governor to exempt Congress from his map-making.

The fear is that tinkering with the California congressional boundaries could jeopardize Republican control of the U.S. House. By some estimates, the state's 20-person GOP congressional delegation opposes the governor's effort 4 to 1.

The Republican backlash underscores a reality of redistricting: What's most important to incumbents is ensuring their own survival. Even with California Republicans confined to minority status in both the legislative and congressional delegations, many members would rather keep the existing lines than gamble on a plan that could plunk them in unfriendly districts where they would have trouble getting reelected.

Posted by Marcia Oddi on Tuesday, February 08, 2005
Posted to General Law Related

Env't. - An almost eight acre, 21 million gallon manure lagoon

In a story by Lindsey Jamison, dateline Randolph County today, NewsLinkIndiana reports:

Farmers and neighbors of the new CAFO under construction in Randolph County said they are being pushed to the boiling point with water safety concerns.

The new CAFO, or Concentrated Animal Feeding Operation, plans to begin milking in late summer with 1,650 cows under one roof. The grounds will include an almost eight acre, 21 million gallon manure lagoon to store the waste produced by the animals.

The lagoon will feature a 10 millimeter thick plastic covering to keep the waste from soaking into the ground, according to Allen Hutchison, a neighboring farmer. He believes that this safety precaution is not nearly enough, and that there are serious water safety issues to be considered.

"It can be done right; but I don't think this Vreba-Hoff company has built a farm yet that hasn't had a violation from manure run-off." said Hutchison.

Hutchison is part of a group of residents who have banded together against the CAFO. The group has attended meetings, and conducted research on the dairy in hopes of putting a stop to its construction. Hutchison, who refers to his property as "beach front property" to the lagoon, said he believes that smell will also be issue to tackle once the farm is running.

"IDEM just lets them negotiate their fines down to nothing. We say these people need to be licensed and bonded," said Barbara Sha Cox, a neighbor whose family has lived in Randolph County for almost a hundred years. "We are not opposed to the good CAFOs. We know there are many that are good stewards of the land, and we don't want to harm them in any way. But we feel we must have a safety mechanism to protect our water and or air."

Posted by Marcia Oddi on Tuesday, February 08, 2005
Posted to Environment

Env't. - Richmond gets IDEM OK to sell former bus manufacturing plant

"Carpenter will hit auction block: City gets OK to sell former bus manufacturing plant" is the headline to this story in the Richmond Palladium-Item. Some quotes:


Richmond's long-vacant Carpenter plant is ready for the auction block.

City attorney Walt Chidester told Richmond Common Council on Monday that the Indiana Department of Environmental Management (IDEM) has "signed off" on the former bus manufacturing facility. * * *

Richmond foreclosed when the last owners defaulted on a $2.5 million mortgage the city had on the plant. But sale of the plant was delayed because of concern about hazardous materials left behind on the site.

Richmond has spent about $350,000 to clean up the property so it can change hands.

IDEM's agreement with the city requires future monitoring of the site, Mayor Sally Hutton said, but it frees future owners of any liability because of past environmental problems.

This sounds similar to the Slater Steel deal IDEM offered at about this time last year. See the ILB entry from 2/2/04. More at 2/14/04 and 5/20/04 (including copies of the documents).

Posted by Marcia Oddi on Tuesday, February 08, 2005
Posted to Environment

Ind. Gov't. - Three Dudes for Daniels

Well, I turns out I misread it, the headline in this Bluffton News-Banner editorial actually is: "3 Duds for Daniels Dropping, Dumping and Deep-Sixing." The three "losers," according to the piece, are daylight savings time, "the proposed switch from electing the State Superintendent of Public Instruction to appointing," and "changing ISTEP testing from fall to spring."

Speaking of dudes, however, yesterday's front page story in the Indianapolis Star by Matthew Tully made a pretty compelling case for "Mitch the ordinary guy." The lead:

To many Hoosiers, he's just Mitch. The plain-spoken, almost casual new governor who seems more comfortable in jeans and baseball caps than suits and ties.

He was never far from a pork tenderloin sandwich on the campaign trail last year, and he likes to talk about the symbolic beauty of barns and his fondness for small-town high school basketball.

Today, however, a second story by the same reporter explains that:
[Daniels] has spent $600,000 on a 1.5-acre plot in Carmel's gated Laurelwood community, a woodsy haven of million-dollar-plus homes.
Apparently "he may build a home there within the next two years. For now, though, he continues to prefer his Geist area home to the governor's official residence" on Indianaplis' North Meridian Street.

Posted by Marcia Oddi on Tuesday, February 08, 2005
Posted to Indiana Government

Ind. Decisions - Two Court of Appeals and two Tax Court decisions today

Mary D. McCall v. Department of Natural Resources (2/8/05 IndCtApp) [Statute of Limitations]
Mathias, Judge

Mary McCall (“McCall”) filed a complaint against the Indiana Department of Natural Resources Division of Forestry, Vallonia State Nursery, and Orange County (collectively “the Defendants”) in Marion Superior Court alleging that those defendants negligently supplied McCall with defective black walnut seedlings. The trial court dismissed the case with prejudice after concluding that McCall’s complaint was not filed within the applicable statute of limitations. McCall appeals arguing that the trial court erroneously dismissed her complaint because it was filed within the ten-year statute of limitations for breach of contract claims. Concluding that the trial court properly dismissed McCall’s complaint, we affirm. * * *

The nature and substance of McCall’s complaint raises a claim, not of tort or contract, but of breach of implied warranty. McCall has alleged that the Defendants failed to provide suitable black walnut tree seedlings despite their stated mission: to provide “high quality plant materials.” “Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is, unless excluded or modified under IC 26-1-2-316, an implied warranty that the goods shall be fit for such purpose.” Ind. Code § 26-1-2-315 (2002). See also Weller v. Becktell, 2 Ind. App. 228, 232, 28 N.E. 333, 334 (1891) (“In the sale of nursery trees for transplanting, the law implies a warranty upon the part of the seller that they shall be reasonably fit for and adapted to that purpose.”).

A claim of breach of implied warranty must be commenced within four years after the cause of action accrues. Ind. Code § 26-1-2-725 (2002). See also Stumler v. Ferry-Morse Seed Co. et al., 644 F.2d 667, 668-69 (7th Cir. 1981) (The sale of tomato seeds is a sale of goods under Indiana’s version of the Uniform Commercial Code and the four-year statute of limitations applies). McCall ordered black walnut tree seedlings from the Defendants in November of 1993 and 1994. In her complaint, McCall states that she planted the seedlings the “following spring.” Consequently, her cause of action accrued sometime during the spring of 1995. However, her complaint was not filed until November 21, 2003, and was therefore filed approximately four years after the four-year statute of limitations expired. Accordingly, we conclude that the trial court did not err when it dismissed McCall’s complaint. * * * Affirmed.
DARDEN, J., and FRIEDLANDER, J., concur.


Candy S. Gaw, et al. v. Sterling United Federal Credit Union
(2/8/05 IndCtApp) [Attorney Fees]
Mathias, Judge
Sterling United Federal Credit Union (“Sterling”) appeals from the denial of its petition for attorney’s fees in Warrick Superior Court Number Two. Sterling raises the following issues: [1] Whether the trial court abused its discretion when it joined Sterling to a dissolution proceeding, and then upon dismissing Sterling, when it failed to find the joinder wrongful; and, [2] Whether the trial court abused its discretion when it denied Sterling’s petition for attorney’s fees.

We conclude that the trial court abused its discretion when it joined Sterling to the dissolution proceeding. However, because the trial court dismissed Sterling from the proceeding, this issue is now moot. In addition, we conclude that the trial court did not abuse its discretion when it denied Sterling’s petition for attorney’s fees. Therefore, we affirm. * * *
DARDEN, J., and FRIEDLANDER, J., concur.

Elkhart Bedding/Carol Darr v. Department of Local Government Finance (2/7/05 IndTaxCt - NFP) [Property Assessment]
FISHER, J.
Elkhart Bedding/Carol Darr (Elkhart) appeals the State Board of Tax Commissioners’ (State Board) final determinations valuing its real property for the 1999 tax year. The sole issue for the Court to decide is whether Elkhart’s improvements are entitled to obsolescence depreciation adjustments. * * *

Because Elkhart failed to link the factors causing obsolescence with an actual loss in its properties’ value, it failed to make a prima facie case quantifying the amount of obsolescence to which it was entitled. Affirmed


Arlington Professional Builiding v. Department of Local Government Finance
(2/7/05 IndTaxCt - NFP) [Property Assessment]
FISHER, J.
Arlington Professional Building (Arlington) appeals the State Board of Tax Commissioners’ (State Board) final determination valuing its real property for the 1999 tax year. The sole issue for the Court to decide is whether Arlington’s improvement is entitled to an obsolescence depreciation adjustment. * * * Affirmed.

Posted by Marcia Oddi on Tuesday, February 08, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts four today

Gulley, Evalene v. Sahara Coal Trust (Benefits Review Board, US Dept. of Labor) [7 pp.]

Enodis Corporation v. Freeland, Daniel (ND Ind., Allen Sharp, Judge) [8 pp.]

Before POSNER, WOOD, and EVANS, Circuit Judges.
EVANS, Circuit Judge. By now it is fair to say we are painfully aware that Consolidated Industries Corporation is in bankruptcy in the Northern District of Indiana. (In re Consolidated Indus. Corp., Bankr. Case No. 98-40533.) To put it mildly, we have seen this case before. This time it is before us on Enodis Corporation’s1 appeal from a decision in yet another of the adversary proceedings growing out of the bankruptcy. * * *

This case was moot before and it is moot now. It is not possible to require a trustee to seek approval of a defunct settlement, and it would be absurd to order him to seek approval of an already approved settlement. This appeal is DISMISSED.

Flowers, Michael J. v. Columbia College (ND Ill.) [6 pp.]

Before EASTERBROOK, RIPPLE, and EVANS, Circuit Judges.
EASTERBROOK, Circuit Judge. Columbia College Chicago hired Michael Flowers and assigned him to serve as a guidance counselor at a public high school in Chicago, which had contracted with the College for services of this kind. When the principal forbade Flowers to wear a religious head covering, he filed a charge of discrimination with the EEOC, naming the school system as his employer. The school system complained to the College, which fired Flowers—and did so for the sole reason that he had complained about religious discrimination practiced by the high school. (We take as given the allegations in his complaint, without knowing whether they are true.) Flowers then charged the College with retaliation, in violation of 42 U.S.C. §2000e-3(a) (part of Title VII of the Civil Rights Act of 1964), and filed this suit after the EEOC was unable to achieve conciliation. The district judge dismissed the complaint for failure to state a claim, see Fed. R. Civ. P. 12(b)(6), ruling that Title VII allows an employer to sack a person who complains about discrimination elsewhere. * * *

Reversed and remanded.

A.M.I. Diamonds Co v. Hanover Insur Co (ND Ill.) [7 pp.]

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges. POSNER, Circuit Judge. Wholesale jewelry salesman Maged Soliman, after a sales visit to a retail jewelry store in a Chicago suburb, stopped at a gas station to phone his office. He was careful to park his car just steps away from the station’s pay phone because in a briefcase wedged between the driver’s and front passenger’s seats were more than $100,000 worth of finished diamonds. After finishing his phone call Soliman opened the door of the car on the driver’s side to get back in when he was distracted by a young woman in a minivan a few feet away who asked him for help with directions. He walked over to her, keeping his car with its precious cargo in sight. But when he reached her, she dropped the map she was holding in her hand and he stooped to pick it up. At that moment he lost sight of the car and an accomplice of the woman stole the diamonds, which were never recovered. The thieves had probably kept watch on the retail jewelry store, identified Soliman as a wholesale jewelry salesman, and followed him from the store to the gas station. * * *

Posted by Marcia Oddi on Tuesday, February 08, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Dept. Natural Resources chief John Goss leaves

Here is an important story I missed - thanks to Marty Lucas' fine NE Indiana blog, BigEastern, for the pointer.

Skip Hess' column in the Indianapolis Star, Ourdoors, included this item Sunday, headed "Goss is gone":

About three weeks ago, Gov. Mitch Daniels asked DNR director John Goss, a Kernan appointment, to stay on the job temporarily because of flooding in the state.

Goss did as he was asked, but when the water receded, so did Goss. He left abruptly Jan. 28 with no announcement from the DNR or governor's office.

Jane Jankowski, the governor's press secretary, said last week that Ray Rizzo and Ken Kaczmarek will work as interim DNR directors until the position is filled. "We're trying to move as quickly as possible," she said. Jankowski declined comment on people being considered.

Posted by Marcia Oddi on Tuesday, February 08, 2005
Posted to Environment | Indiana Government

Law - Federal preliminary rulemaking receives legal challenge

The weekly Cindy Skrzycki Washington Post column, The Regulators, reports today:

The Salt Institute has its blood pressure up. The group that represents 36 domestic and foreign salt producers is appealing its loss of a lawsuit that challenged the science a National Institutes of Health agency used in 2003 to recommend that lower sodium consumption would improve people's health.

The case is being closely watched because it is the first to try to expand judicial review into the basis for agencies' preliminary rulemaking. Interest groups already can sue to try to overturn final regulations. But the sodium chloride group and the U.S. Chamber of Commerce want the courts to get into the action earlier.

According to the suit, the National Heart, Lung, and Blood Institute (NHLBI) at NIH violated the Data Quality Act by refusing to release scientific studies that concluded that reduced sodium intake results in lowered blood pressure for most people.

The law, passed in 2000 and enthusiastically implemented by the Bush administration, gives the public a way to urge agencies to correct the science and economics underlying the creation of a federal rule or policy.

The law permits an appeal if an agency denies the request for correction, but no judicial review. That's why business wants courts to be able to challenge agency decisions. "The petitions would all be meaningless, because we would have no way to appeal," said William L. Kovacs, vice president of regulatory affairs at the Chamber of Commerce. "You'd be stuck with what the agency tells you."

Critics say the law is a back-door way to second-guess regulatory professionals.

"Industry wants to take these decisions away from the regulators," said Sean Moulton, senior policy analyst with OMB Watch, a public interest regulatory watchdog group. "They want to question the data before the regulation even gets started."

He said filing data-quality petitions is a less obvious way of blocking a rule than going to court after a final regulation is issued, which can result in bad publicity for companies opposing environmental or health and safety rules. * * *

Posted by Marcia Oddi on Tuesday, February 08, 2005
Posted to Administrative Law | General Law Related

Ind. Courts - Marion County judges selection bill approved by House committee

Yesterday we reported that HB 1703 was about to be heard in committee -- today we report that it has been approved and passed out of committee. As reported by Mary Beth Schneider in the Indianapolis Star today:

Marion County judges would be appointed by the governor instead of chosen by voters under a bill approved late Monday on a party-line vote by an Indiana House committee. * * *

The bill was approved by the committee 7-5, though four of the Republicans said they believed it needs more work before becoming law.

The bill would have all 32 Marion County judges appointed through a process involving an 11-member panel. That panel, led by the Indiana Supreme Court's chief justice, would make three recommendations for each spot on the bench; the governor would make the final pick.

Members of that panel would be appointed by the governor, the Indianapolis Bar Association, the Marion County Bar Association and the county's party chairmen.

Committee members did revise the measure to allow current judges to stay on the bench and then be placed on the ballot in a retention election, as will all future gubernatorial appointees. That's the process now used for state appellate and Supreme Court justices in which voters decide whether a certain judge should be retained.

Murphy argued that the current system in Marion County is fraught with politics. Both parties have a slating system, in which candidates attend party functions to win the support of precinct committeemen who endorse candidates before the primary.

Though he said all current judges are qualified, Murphy said a panel of lawyers and others could better choose good candidates, who would not then need to raise campaign cash.

Indiana Supreme Court Chief Justice Randall T. Shepard said he favors a nonpartisan merit selection process to choose judges.

"One defect here (in Marion County) has been that partisanship is always in front of everybody," he said.

That was true, too, at the hearing.

Republican judges from Marion County spoke in favor of the bill, calling it a good government move that will increase diversity, protect quality and remove any perception that political contributions influence judges.

Democratic judges spoke against the bill, calling it bad government to take away the voice of the people and remove a process that has increased diversity. Besides, they said, judges still will have to raise campaign contributions in their retention elections if they are targeted for defeat.

John F. Kautzman, president of the Indianapolis Bar Association, said the group doesn't oppose the bill, believing a merit selection process could increase the independence of the judiciary.

But, he said, the association that represents about 5,000 attorneys in Marion County doesn't support the bill yet, either, believing it needs changes to make sure the commission that makes the recommendations is as free as possible from political influence.

Posted by Marcia Oddi on Tuesday, February 08, 2005
Posted to Indiana Courts | Indiana Law

Env't. - State senator ends attempt to change waste-district law

On Jan. 18 the ILB posted an entry quoting from a Munster (NW Indiana) Times editorial about two bills Senator Bev Gard, long-time chair of the Senate Environmental Affairs Committee, had introduced. The bills were SB 279 (good character requirements for waste permits) and SB 280 (opting out of solid waste management districts). The good character requirement bill is discussed again in this Jan. 26 entry.

Today the Louisville Courier Journal has an AP story about the second bill, reported by Rick Callahan and headlined "State senator ends attempt to change waste-district law." Some quotes:

A state senator said yesterday that she is abandoning a bill that upset supporters of Indiana's recycling efforts because it would have allowed counties to opt out of the state's 15-year-old system of solid-waste districts.

Environmentalists, local officials and recycling proponents told members of the Senate Environmental Affairs Committee yesterday that the legislation could erode the waste-district system.

The system, which the state's 92 counties began forming in 1990, coordinates recycling efforts that have significantly reduced the burden on Indiana's landfills.

Sen. Beverly Gard, the committee's chairwoman, said after the hearing that she would abandon the bill, in part because of the strong opposition.

But Gard, R-Greenfield, said she also made the decision because county officials who complained that the districts had created more bureaucratic hoops did not attend yesterday's hearing. Gard said their concerns had prompted her to introduce the bill.

"They weren't here to speak for themselves, which concerns me. At this point, based on the testimony and the lack of participation from those counties, I see no reason to pursue the bill any further," she said.

Posted by Marcia Oddi on Tuesday, February 08, 2005
Posted to Environment | Indiana Law

Monday, February 07, 2005

Ind. Law - Lawmakers eye insurance with no frills

"Lawmakers eye insurance with no frills" is the headline to a story by Niki Kelly published in the Sunday Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – After mandating numerous health insurance benefits over the past decade, lawmakers this year might allow small-business owners to purchase no-frills policies for their employees that don’t include those required services.

The proposal – often called “mandate-light” – is backed by Gov. Mitch Daniels and is included in House Bill 1487, which will receive a hearing Feb. 17. Similar language exists in Senate Bill 269.

“There’s got to be some way to help those who have no insurance,” said Sen. Patricia Miller, R-Indianapolis. “The dilemma is where do we draw the line between the Cadillac plan and no plan? Isn’t there room for a Chevrolet?”

Miller, surprisingly, has been the author of some of those mandates in recent years but now sees the need for another consumer option on the market.

The bill is aimed at helping the more than 500,000 working, uninsured Hoosiers by allowing insurance companies to write policies that exclude certain mandates. * * *

Both bills would still protect five areas of coverage no matter what – newborn and diabetes care, as well as breast, prostate and colorectal cancer screenings.

But many – such as autism, maternity stay, emergency services and mental health parity – could be removed by a health insurance company selling coverage to an individual or a small business with 50 or fewer employees or an individual.

The bill currently has a 75-employee-level cutoff but the author has agreed to amend it to 50 or less. More than half of Indiana’s working uninsured are employed by a company with 50 or fewer employees.

“I have people coming to me wanting to put their mandate back in but I can’t do that,” said Rep. Mike Ripley, R-Monroe – chairman of the House Insurance Committee. “This provides a product that may be useful and less expensive.” * * *

Rep. Robert Behning – an Indianapolis Republican sponsoring the bill in the House – said the biggest concern is what is known as “adverse selection.” Under a health insurance plan, if only the sick people who need to take advantage of the covered benefits join the plan, the high number of resulting claims could cause the costs paid by the plan to soar and threaten it with financial collapse.

“I am afraid people are dropping out of coverage altogether because we have added so many mandates,” Behning said. “My frustration has been that every mandate probably has some merit but we never do any cost-benefit analysis.”

He said he realizes the advocates want more coverage – not less – but he is focusing on people who have no coverage.

The story also has a valuable side-bar of current requirements:
Here are some of the benefits Indiana requires insurance companies to provide in any policy they sell within the state:

•Alcoholism

•Autism

•Breast reconstruction

•Cleft palate

•Colorectal cancer screening

•Diabetes self-management and supplies

•Emergency services

•Mammograms

•Maternity stay

•Mental health parity

•Morbid obesity treatment

•Newborn hearing screening

•Prostate screening

*The state also mandates insurance companies cover certain providers and people, such as adopted children.

Posted by Marcia Oddi on Monday, February 07, 2005
Posted to Indiana Government | Indiana Law

Ind. Gov't. - Governor’s bold move for power

"Governor’s bold move for power" was the title to an editorial Sunday in the Fort Wayne Journal Gazette. Some quotes:

When Indiana voters gave Mitch Daniels a clear nod for the governor’s seat last November, did they also give a clear nod to an extreme makeover of state boards and commissions?

It’s a stretch to believe that’s the case. Change was a mantra of Daniels’ campaign. But nowhere was there discussion of pushing aside state statute to immediately replace board members and commissioners appointed to deliberately staggered terms.

The governor ignored the intent of state law when he asked more than 100 Hoosiers to resign from 17 boards and commissions. Each of the boards has significant policy-making authority, and each was established by the General Assembly with stipulations that terms should be for a fixed period. It’s notable that two-thirds of those asked to resign – Democrats and Republicans included – took seriously their original charge and rejected or ignored the resignation request. The governor was wrong to ask, and they were right to refuse. * * *

Staggered terms serve several worthwhile purposes. They provide continuity and a smooth transition of power. The also ensure that state boards and commissions won’t be filled with members unfamiliar with their duties and responsibilities. The governor is simply wrong when he flippantly dismisses institutional knowledge as “overrated.”

Daniels has said that he wants members of the boards and commissions to share his vision for a change. He’s certainly welcome to use that litmus test when a vacancy occurs or a board member’s term expires, but to demand it immediately constitutes political arm-twisting. Get in line or get out, is the message, particularly when he warned members that he would not reappoint anyone who failed to offer up a resignation.

None of the 10 members of the State Board of Education offered to resign; so it’s fair to assume they all will be replaced. Is that what Hoosier voters intended? Would they have given the Indiana superintendent of public instruction 8,000 more votes than Daniels if they were truly dissatisfied with the direction of the state’s education policy?

Posted by Marcia Oddi on Monday, February 07, 2005
Posted to Indiana Government

Env't. - Louisville Metropolitan Sewer District steps up erosion enforcement

"MSD pursues erosion violators: Fines in last half of '04 close to figure in previous 3½ year" is the headline to a story today in the Louisville Courier Journal. Readers may recall that the LCJ ran a series last October with headlines such as "MSD slow to stop construction runoff muddying waterways." (See ILB entries from 10/24/04 and 12/24/04.)

Some quotes from today's story, reported by James Bruggers:

The mud police are on the move. The Metropolitan Sewer District issued nearly as many fines for violating a Louisville metro erosion-control ordinance in the last six months of 2004 as it did in the previous 3½ years. And two of the new fines are the largest that the agency has issued under the ordinance, which went into effect Jan. 1, 2001.

The changes occurred since The Courier-Journal began reporting on a lack of staff to enforce the ordinance and a tendency to issue warnings and stop-work orders instead of fines.

MSD Executive Director Bud Schardein said Friday that before issuing fines his staff still tries to work with builders and others who fail to take the required steps for curbing muddy runoff from construction sites. But he said the additional fines stem in part from his decision last fall to give more MSD inspectors authority to issue notices of violations for erosion control.

The problem had been that only three of about 26 MSD construction inspectors had been trained and authorized to enforce the ordinance, which covers about 3,000 new home sites each year. "We work toward compliance on all ordinances that we administer, as long as the permit holder is working in good faith," he said. "The ones who `thumb their nose' will be dealt large fines."

Derek Guthrie, MSD's chief engineer, said: "It's been a constant learning curve.... We've gotten to the point where ignorance to the requirements is not a suitable response."

Last year, the newspaper — after reviewing MSD files — reported that the agency issued 15 fines out of 860 enforcement cases it handled between Jan. 1, 2001, and June 30, 2004. The average was $813, with the largest $3,500.

In the last six months of 2004, the agency levied 13 fines, averaging $3,226. The largest was a $27,000 fine the newspaper previously reported involving an Ohio contractor preparing a southwestern Jefferson County parcel for construction.

It was followed by a $10,000 fine paid by developers of a site near Middletown. The penalty was the result of a settlement involving a 1.2-acre parcel off North English Station Road, said Larry Pardue, who oversees erosion enforcement for MSD.

Posted by Marcia Oddi on Monday, February 07, 2005
Posted to Environment

Ind. Decisions - Two from Court of Appeals today

Albert Hardister v. State of Indiana (2/7/05 IndCtApp) [Criminal Law & Procedure]
Robb, Judge

Albert Hardister was found guilty by a jury of dealing in cocaine and possession of cocaine, both Class A felonies, possession of cocaine and a firearm, a Class C felony, unlawful possession of a firearm by a serious violent felon, a Class B felony, and obstruction of justice, a Class D felony. The trial court sentenced Hardister to an aggregate of sixty-eight years. Hardister now appeals his convictions and his sentence. We reverse.

Issues. * * * Whether the trial court properly admitted evidence seized from the warrantless search of the residence located at 407 North Hamilton Street; and Whether the trial court properly denied Hardister’s motion for judgment on the evidence. * * *

Conclusion. We hold that the trial court erred in admitting Officer Tindall’s and Officer Lawrence’s testimony regarding what they saw when they looked into the windows of the residence because their observations were obtained as a result of unconstitutional searches under Fourth Amendment, and all evidence derived from those searches should have been excluded. We further hold that the State failed to present sufficient evidence to support Hardister’s convictions for dealing cocaine, possession of cocaine and a firearm, possession of a firearm by a serious violent felon, and obstruction of justice. Each of Hardister’s convictions is therefore reversed.
KIRSCH, C.J., and BAKER, J., concur.

Mark Plummer and Shari Plummer v. Gittleman, Paskel, Tashman and Walker, P.C. (12/21/04 IndCtApp) [Attorney Fees] [Originally issued as NFP]
Robb, Judge
Mark and Shari Plummer appeal the trial court’s judgment in favor of Robert Gittleman of Gittleman, Paskel, Tashman, and Walker, P.C., in the amount of $45,000 for services Gittleman performed during his representation of the Plummers. We affirm. * * *

The Plummers first contend the trial court erred in granting attorney’s fees to Gittleman because Gittleman was not admitted to practice law in the State of Indiana. The issue of whether an out-of-state attorney, assisted by local counsel, may recover attorney’s fees for work conducted in preparation of future litigation is a matter of first impression in Indiana courts. * * *

The instant case is analogous to the facts in Freeman. Through a common acquaintance, the Plummers contacted Gittleman to investigate any potential claims they might have had against Norfolk Southern. Gittleman associated himself with local counsel, Colvin, in anticipation of filing a lawsuit. Gittleman and Colvin executed a written retainer agreement with the Plummers. Finally, if litigation had been commenced in this case, it appears Gittleman could have been admitted to practice law in Indiana pro hac vice. Therefore, the trial court did not err in awarding attorney’s fees to Gittleman even though he was not licensed to practice law in the State of Indiana. * * *

Because the Plummers accepted the terms in the Agreement and failed to present any evidence to support their contention that Gittleman breached the Agreement, the trial court did not err in finding that Gittleman was entitled to thirty-three and one-third percent of the $135,000 settlement offer he obtained on behalf of the Plummers. * * *

Conclusion. Gittleman was entitled to recover attorney’s fees under the Agreement with the Plummers, even though he was not licensed to practice law in the State of Indiana. Furthermore, the trial court did not err in finding that Gittleman did not breach the Agreement with the Plummers. For these reasons, Gittleman was entitled to thirty-three and one-third percent of the settlement offer of $135,000 he obtained on behalf of the Plummers. Therefore, we affirm the judgment of the trial court. Affirmed.
KIRSCH, C.J., and BAKER, J., concur.

Posted by Marcia Oddi on Monday, February 07, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts one today

Anderson, Jessie v. Griffin, Roy (ND Ind., Philip P. Simon, Judge) [14 pp.]

Before POSNER, MANION, and EVANS, Circuit Judges.
POSNER, Circuit Judge. The jury in this diversity suit for damages arising out of a highway collision returned a verdict for the defendants. The appeal challenges the voir dire, an instruction, the judge’s refusal to grant a new trial on the ground that the verdict was against the weight of the evidence, and the computation of court costs. The substantive issues are governed by the common law of Indiana; the others, of course, by federal law. * * *

[Plaintiffs object to jury instructions] Nevertheless the plaintiffs insist that the instruction is improper under Indiana law. They point out that in Miller v. Alvey, 207 N.E.2d 633, 636-37 (Ind. 1965), the Indiana Supreme Court said:

The expression “unavoidable accident” or “pure accident” is not an affirmative defense and has no particular connotation in modern pleading of negligence cases. Such terminology adds nothing to the issues before the court or jury and as the expressions are ambiguous and particularly confusing to lay jurors, their use in instructions is undesirable and unwise and any statements in prior decisions of this state construed as authorizing instructions on “pure accident” or “unavoidable accident” are hereby disapproved.
[See pp. 7-9 of opinion for discussion of this issue.]

Last, the plaintiffs challenge the award of court costs pursuant to Fed. R. Civ. P. 54(d)(1). For obscure reasons, given the “American rule” that requires each side to a lawsuit to bear its legal expenses rather than making the loser reimburse the winner’s reasonable expenses, the law allows the winning party to recover from the loser the winner’s “court costs,” a stereotyped list of usually though not always modest items of expense, exclusive of legal fees. (They amount here to a shade under $13,000.) * * *

The plaintiffs do not argue that impermissible items were included in the defendants’ bill of costs or that the cost awarded per item pierced the ceiling set by rules or statute. They argue instead that the defendants took more depositions than they had to and in this and other ways drove up their court costs unnecessarily. This is a bad argument because, as we have had occasion to note recently, a painstaking judicial inspection of fee claims (and equally cost claims) is unnecessary when there is a market constraint on running up excessive expenses. Taco Bell v. Continental Casualty Co., supra, 388 F.3d at 1075. When taking depositions the defendants could have had no confidence that they were going to win the case and thus be able to submit a bill of costs, or that if they won and therefore could submit such a bill the plaintiffs would have the wherewithal to pay it. So they had an incentive not to take unnecessary depositions or otherwise incur excessive costs. That incentive was a better check on extravagance than would be a court’s effort to decide after the fact whether a particular expenditure was sensible given its anticipated contribution to a favorable outcome of the litigation. * * *

We are given no reason to think that recognizing a right of contribution with regard to court costs would serve any purpose other than to encumber federal litigation, which needs no additional encumbrances. No showing has been made that a particular plaintiff or plaintiffs was disproportionately responsible for the costs that the judge has awarded against them, and so each plaintiff is jointly and severally liable for the costs that the judge awarded to the defendants. Affirmed.

Posted by Marcia Oddi on Monday, February 07, 2005
Posted to Ind. (7th Cir.) Decisions

Law - Feature article on Chief Justice Rehnquist's administrative assistant

"Serving in the Chief Justice's Shadow" is the title to an interesting article today by Charles Lane in the Washington Post. Some quotes:

But as millions of Americans watched Rehnquist, they also caught a glimpse of another important but less prominent figure from the Supreme Court, hovering just over the chief justice's shoulder: his administrative assistant, Sally M. Rider. * * *

As administrative assistant, Rider is the equivalent of a chief of staff to the chief justice. In that capacity, Rider has been helping him keep up with the flow of paper at the court, and assisting in such matters as preparing the court's annual budget request to Congress and drafting the chief justice's year-end "state of the judiciary" report.

Posted by Marcia Oddi on Monday, February 07, 2005
Posted to General Law Related

Ind. Gov't. - "We need to change the culture of government in Lake County"

"We need to change the culture of government in Lake County," is a quote from a story yesterday in the Munster (NW Indiana) Times, headlined "With no HR department in Lake County, patronage runs rampant: Other Indiana counties of similar size have formal hiring policies, online access." More from the story by Meggen Lindsay:

CROWN POINT | Looking for a job in Porter County government? Apply online. How about in Marion or Allen counties? Again, apply online. Elkhart and St. Joseph counties make employment information readily available on their Web sites as well.

It's another story in Lake County. In a marked contrast to other populous Indiana counties, nowhere on the county's new Web site is there any mention of open jobs -- nor are there any visible postings at its government complex.

Yet, positions come open, and new employees are hired every month. But also unlike many other counties, Lake County has no human resources department to manage its nearly 2,300 full- and part-time employees. Not one employee is designated to gather applications or post jobs countywide. Instead, how the jobs are filled -- and whether they are ever publicly advertised -- changes from office to office.

"Then how can the majority of people in Lake County find out about jobs?" asked Laurence Msall, president of the Chicago-based Civic Federation, a nonpartisan tax policy and government research group. "It should be an open process, so the most qualified candidates are hired, rather than someone somebody knows." * * *

But most county officials say they hire only qualified people and need to make their own hiring and firing decisions.

"I run every four years. The people who vote for me vote based on what my people do for them," county Prosecutor Bernard Carter said. "I tell my constituents I will do a good job for them, and to do that, I need to have some control over the people who work in my office."

Posted by Marcia Oddi on Monday, February 07, 2005
Posted to Indiana Government

Ind. Law - House panel to hear bill on appointment of judges

"House panel to hear bill on appointment of judges" is the headline to this Indianapolis Star story about HB 1703. Some quotes:

A proposal calling for Marion County judges to be appointed rather than elected will get a hearing Monday before the Indiana House Judiciary Committee.

The latest version of the bill, filed by Rep. Michael Murphy, R-Indianapolis, would make the 32 sitting Marion Superior Court judges subject to a yes-or-no retention vote when their current terms expire in 2006 or 2008.

Under current law, those judges would have to run for re-election.

In the future, under House Bill 1703, an 11-member commission would present a field of judicial candidates to the governor, who would appoint one to fill an open seat. * * *

The hearing will begin at 9:30 a.m. in room 319 of the Statehouse.

Here is the link to the most recent earlier ILB entry on this courts bill, from 2/1/05.

Posted by Marcia Oddi on Monday, February 07, 2005
Posted to Indiana Courts | Indiana Law

Ind. Law - Financing drying up for State Police DNA lab

"Financing drying up for DNA lab: Samples from inmates being backlogged at laboratories" was the headline to this story by Laura Johnston in the Sunday Fort Wayne Journal Gazette. Some quotes:

Almost 1,200 samples await DNA analysis. They wait to be entered into the Combined DNA Index System known as CODIS, a national database of convicted offenders and unsolved crimes.

They wait to be matched to evidence from crimes in Indiana and throughout the country. Much of the reason for the wait is simply a lack of money. But other hurdles haunt the state lab.

The state is battling a backlog of DNA samples from 940 unsolved criminal cases. Although 400 or so of those cases are outsourced to private labs to process, the remaining cases – each with an average of 12 samples – must be tackled by the state’s 33 DNA analysts. * * *

Facing far from enough financing and less than ideal conditions, clearing the backlogs is a daunting task, even without considering proposed state legislation to require all convicted felons to submit DNA samples for testing.

Twelve of the Indianapolis lab’s 18 analysts are in training, learning to prep samples for analysis or to analyze them for DNA. The analysts work in small spaces, with machines crammed in every corner and hallways lined with file cabinets.

Budget snafus. Money is a constant issue. Police receive millions of dollars a year from Indiana license-plate proceeds, thanks to a 2002 Indiana House bill. In September, police received more than $3 million in grants through President Bush’s $1 billion, five-year DNA Initiative. That money – earmarked for new equipment, training, laboratory renovation, supplies, new hires and outsourcing – are [sic.] paying for the new Indianapolis laboratory and equipment for the Fort Wayne lab. DNA analysis might begin there as soon as March.

But the financing mechanism leaves much to be desired, police say. Especially since Bush’s initiative, which he addressed in his State of the Union speech Wednesday, will expire in 2008.

Until November, a four-year federal grant through the Indiana Criminal Justice Institute paid to outsource the state’s convicted offender samples. But it ran out, and no other grants are filling the financial hole. * * *

And until now, Indiana didn’t have much of a convicted offender backlog. It’s a case of Catch-22. No backlog means no money. No money creates a backlog. * * *

Grants for 2005 have not been announced, but Misner doubts Indiana will receive money for the convicted offender backlog, because grants are based on backlogs that existed in the summer of 2004. Then, the state didn’t have much of a convicted offender backlog. Storing all incoming samples for future testing, though, could help secure funding in 2006, he said. * * *

Statehouse strategies. Three bills proposed last month in the state legislature could add to the lab’s financial woes. Or automatically make the state eligible for backlog reduction grants. Two bills – a Senate bill written by state Sen. Thomas Wyss, R-Fort Wayne [SB 318], and a House bill by Rep. Tim Harris, R-Marion [HB 1241], and co-written by Rep. Phyllis Pond, R-New Haven – propose that all convicted felons must submit DNA samples for the CODIS database. * * *

The third bill, written by state Sen. Joe Zakas, R-Granger [SB 522], would require felons convicted of residential entry, a lesser crime than burglary, and incest to submit DNA samples.

Wyss’ and Harris’ bills do not provide money, and both are estimated to cost the state $1.3 million the first year to analyze as many as 30,400 new samples, and $918,000 each following year. They estimate a $35 cost for each sample outsourced. Zakas’ bill requires the court to assess a $30 DNA fee against each person convicted of qualifying crimes.

Today the Chicago Tribune has a story on the Illinois backlog. Some quotes:
A backlog of nearly 1,000 old criminal cases has undergone DNA testing by the Illinois State Police, bringing the number of untested cases to 158--the lowest in five years, Gov. Rod Blagojevich said Sunday.

"This dramatic reduction in untested DNA is a testament to the hard work and the dedication of the Illinois State Police crime lab scientists to speed the wheels of justice and put those who choose a life of crime where they belong, behind bars," Blagojevich said.

But Chicago police said the state figures do not include more than 1,000 untested DNA samples from rape victims, some of which have been on Chicago police evidence shelves for more than a year.

Sheri Mecklenburg, chief counsel to Chicago police Supt. Philip Cline, said department officials told state police last week about a backlog of 1,269 DNA rape samples sitting in vaults awaiting testing.

The state figures do not include the Chicago DNA rape samples because they are tested by private labs, not the state police crime lab, and therefore are not part of official state backlog statistics, said Sgt. Lincoln Hampton, a state police spokesman.

The state numbers were released as part of a law passed last year that requires state police to report each February to the governor and the legislature on the backlog of DNA tests and the steps it has taken to resolve the problem.

Posted by Marcia Oddi on Monday, February 07, 2005
Posted to Indiana Law

Sunday, February 06, 2005

Law - Judge says lost embryo a human

"Judge says lost embryo a human" is the headline to a story today in the Chicago Tribune about a local judge's ruling:

An aspiring mother's fertilized egg mistakenly discarded by a fertility clinic was legally a "human being," a Cook County judge ruled Friday, clearing the way for a Chicago couple to file a wrongful-death suit.

If the judge's ruling stands, experts said, it could frustrate the work of fertility clinics and the future of stem-cell research. But attorneys who disagree on the question of when life begins said the ruling likely would be overturned.

"As an anti-abortion activist, I was pleased to see the judge's initiative," said Victor Rosenblum, a professor at the Northwestern University School of Law. "But as a lawyer, I can't say that he is on solid ground in his reasoning."

A question of whether a wrongful death suit applies to a fetus was argued before a panel of our Indiana Court of Appeal last November. A decision is pending. For more information see this Nov. 18, 2004 ILB entry.

Posted by Marcia Oddi on Sunday, February 06, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - Conner Prairie settlement in sight?

Following up on the ILB entry from Jan. 28 titled "Appeals Court intervening in Conner Prairie lawsuit" is this front-page story by Terry Horne and William J. Booher in today's Indianapolis Star headlined "Conner Prairie deal in sight: Earlham may end 20-month battle by ceding land, millions of dollars to museum." It begins:

Earlham College officials took a major step Saturday toward giving up control of Conner Prairie, agreeing to measures that could end a 20-month struggle involving tens of millions of dollars and thousands of acres.

Trustees of the Quaker-affiliated liberal arts college in Richmond announced they accept in principle the proposal outlined two weeks ago by Indiana Attorney General Steve Carter for museum independence.

The deal would transfer a $91.5 million endowment and 2,200 acres of land -- including and adjacent to the living-history museum -- from the college to a separate foundation that would oversee Conner Prairie.

Earlham, which has served nearly 41 years as trustee of the Fishers museum, would transfer the money from a $174 million endowment created from gifts of stock from Eli Lilly, grandson of the Eli Lilly and Co. founder.

Under the arrangement, Earlham would keep the endowment's remaining $82.5 million.

[More] The Richmond Palladium-Item announces here: "Earlham College, state reach deal: $174 million endowment would be divided." However, the story apparently is based on the same Saturday Earlham press release as the Star story:
According to a press release, the board agreed Saturday to the framework announced two weeks ago by Attorney General Steve Carter. The college and Carter's office have been working toward an agreement for months.

Not all the details have been worked out, but the framework of the proposal provides for the establishment of an independent Conner Prairie, the funding of a $94 million endowment for the exclusive benefit of Conner Prairie, and the transfer of museum land and property to a new Conner Prairie Foundation.

[Update 2/7/05] See also this link to Kemplog, which includes all of Richmond attorny E. Thomas Kemp's comments on the dispute.

"Donations to museum may pick up: End to fight over control of Conner Prairie is likely to loosen purse strings, both sides predict,"
is the headline to this story by Matthew Tully in this morning's Indianapolis Star.

Posted by Marcia Oddi on Sunday, February 06, 2005
Posted to Ind. App.Ct. Decisions

Env't - The Greening of Evangelicals, and Mainstream Churches and Synagogues

"The Greening of Evangelicals: Christian Right Turns, Sometimes Warily, to Environmentalism," is the headline to this story today on the front page of the Washington Post, one of two stories the Post has today on the environment and religion. Some quotes:

"It's amazing to me that evangelicals haven't gone quicker for the green," [Rev. Leroy] Hedman said. "But as creation care spreads, evangelicals will demand different behavior from politicians. The Republicans should not take us for granted."

There is growing evidence -- in polling and in public statements of church leaders -- that evangelicals are beginning to go for the green. Despite wariness toward mainstream environmental groups, a growing number of evangelicals view stewardship of the environment as a responsibility mandated by God in the Bible.

"The environment is a values issue," said the Rev. Ted Haggard, president of the 30 million-member National Association of Evangelicals. "There are significant and compelling theological reasons why it should be a banner issue for the Christian right."

In October, the association's leaders adopted an "Evangelical Call to Civic Responsibility" that, for the first time, emphasized every Christian's duty to care for the planet and the role of government in safeguarding a sustainable environment.

"We affirm that God-given dominion is a sacred responsibility to steward the earth and not a license to abuse the creation of which we are a part," said the statement, which has been distributed to 50,000 member churches. "Because clean air, pure water, and adequate resources are crucial to public health and civic order, government has an obligation to protect its citizens from the effects of environmental degradation." * * *

There is little to suggest in recent elections that environmental concerns influenced the evangelical vote -- indeed, many members of Congress who receive 100 percent approval ratings from Christian advocacy groups get failing grades from environmental groups. But the latest statements and polls have caught the eye of established environmental organizations.

Several are attempting to make alliances with the Christian right on specific issues, such as global warming and the presence of mercury and other dangerous toxins in the blood of newborn children.

The second Post story today, this one on page 16, is headlined "'God's Mandate': Putting The White House on Notice." It begins:
Frustration with the Bush administration's environmental polices is bubbling up from mainstream churches and synagogues, as reflected in a statement signed recently by more than 1,000 clergy and congregational leaders in about 35 states.

Called "God's Mandate: Care for Creation," the statement says that "there was no mandate, no majority, or no 'values' message in this past election for the President or the Congress to rollback and oppose programs that care for God's creation."

Posted by Marcia Oddi on Sunday, February 06, 2005
Posted to Environment

Env't. - More Indiana environment stories this weekend

As a result of the recent "blue bag" trash stories in the Chicago Tribune (see this 1/13/05 ILB entry) , the Gary Post-Tribune has a report today on the land application of sludge in northwest Indiana. Some quotes:

After county officials learned of a controversial farm land application taking place near Lowell, they subsequently discovered a more commonplace application that’s equally controversial, but has been going on for years. Officials in the waste management and environmental communities have known about area farmers spreading sewage sludge on their farm fields, and most of them condoned the practice. But county officials claim they had no idea what was taking place, or what power they have to monitor it.

Sewage sludge is a mud-like substance that remains from waste after it has gone through the treatment process at local sewage treatment plants. It is also referred to as biosolids. Wastewater treatment facilities typically pay farmers to remove the waste, as opposed to dumping it in a landfill.

Last month, controversy arose over Nathan Sanko’s company, Back 2 Basics, spreading remnants of the filtered waste from Chicago’s Blue Bag recycling program on his farm fields near Lowell. A judge will now decide if the practice requires special zoning from the county. The judge’s decision also will apply to farmers spreading sewer sludge. * * *

Jeff Langbehn, executive director of the Lake County Solid Waste Management District, said sludge application is so common in Lake County, he sees notices from the Indiana Department of Environmental Management on a regular basis of new permits being issued. * * *

The most recent permit notification provided by Langbehn was effective Oct. 24, 2004, and included more than 113 acres in Cedar Creek township.

Amy Hartsock, IDEM public information officer, said the application of sewer sludge is “a pretty common practice in Lake County,” and many of the state’s approximately 325 land application permits belong to landowners here. * * *

What troubles Langbehn is the application of sludge that isn’t properly monitored. People don’t think about the materials that end up in the sewage system, Langbehn said. For example, barium enemas are widely used in hospitals and end up flushed down toilets. High levels of barium can be toxic.

“Barium isn’t something regulated in this program,” Hartsock said. The presence of other various metals is tested, and once they reach a cumulative ceiling, application stops on that field, Hartsock said. Depending on the type of metal, the application halt could be temporary.

The state does not monitor the soil itself, only the material being spread on it. The state also does not have a checks and balance system in place, as each landowner is responsible for the accuracy and validity of his own testing, Hartsock said. The paper reports submitted by the landowners are the only thing collected by IDEM.

The Indianapolis Star had a story yesterday headlined "EPA imposes fine for wetland fill," reported by Tammy Webber. Some quotes:
The Indiana Department of Transportation and two businesses should pay a $157,500 fine for illegally filling a wetland near Indianapolis International Airport, the U.S. Environmental Protection Agency said this week.

An INDOT contractor, Atlas Excavating, dumped construction debris in a two-acre wetland along the east fork of White Lick Creek during a 1999 reconstruction project on U.S. 40, EPA enforcement officer Greg Carlson said.

The debris destroyed wildlife habitat and is polluting the east fork of White Lick Creek, as well as reducing its ability to retain and filter rainwater, Carlson said. He said Atlas made a deal with Larry Fitzgerald of Shrum Manufactured Housing to dump the material on about 11 acres that Fitzgerald owns near U.S. 40 and Raceway Road. Instead, most of the debris was dumped across the property line in the wetland. Carlson said the EPA proposed a penalty after failed attempts to reach an agreement to restore the site. * * *

INDOT spokesman Tony Felts said the agency has hired a consultant to design a restoration plan. Carlson said INDOT indicated it would remove all fill and restore the site, but a plan has not yet been approved.

The state might appeal the fine, which could be reduced if the site is restored, Carlson said. The bulk of the fine probably would be issued to the state "because INDOT controls the projects," he said. Felts said the agency has not agreed to pay the fine and indicated the contractor was to blame. "We have a contractor who basically breached a contract with us by filling a wetland," he said. "When we bring contractors on board as an extension of INDOT, we expect they will abide by all EPA requirements; that was not done (in) this case." * * *

Carlson said the state agency was responsible for overseeing its contractors, and EPA even trained INDOT workers in how to do that after the state agency paid $35,000 in 1997 to resolve a similar complaint. INDOT faces other pending wetland violations in western and northeastern Indiana, Carlson said. "Some failure is still going on, and we're concerned about this," Carlson said.

Posted by Marcia Oddi on Sunday, February 06, 2005
Posted to Environment | Indiana Government

Env't. - A slew of Indiana enviroment stories this weekend

The unattributed AP story I posted yesterday from the Wabash Plain Dealer ("State's new environmental chief foresees big changes"- scroll down two entries) appears today in at least two major Indiana paper, under the byline of the AP's Rick Callahan. The Louisville Courier Journal includes a photo. The Evansville Courier&Press includes this sidebar:

THE CRITICISM: Environmentalists have long complained that Indiana Department of Environmental Management has failed to consistently enforce regulations and is too lenient on repeat offenders. They contend the 900-employee agency is understaffed.

NEW DIRECTION: New chief Tom Easterly is reviewing IDEM's staffing. Seven top agency managers recently resigned or were fired, and Easterly says some of the posts may be merged or eliminated. He wants to retool IDEM's permitting system, saying it's cumbersome. Lawmakers must approve some changes.

ON THE HORIZON: Easterly says the state's top environmental challenge is helping cities and towns with overflow-prone sewers implement state-mandated cleanup plans. Indiana also must come up with plans to reduce emissions from power plants.

The Indianapolis Star's lead Sunday editorial is titled "Soot gets in your eyes: Pollution threatens Hoosiers' health." Some quotes:
Our position is: The state must no longer ignore Indiana's sickly environment.

The ugly gray haze that enveloped Indianapolis like a filthy blanket last week won't be featured in any Chamber of Commerce brochures.

But the dirty air, which prompted the state's first-ever wintertime alert for unhealthy levels of soot and dust, should be the catalyst for a long-delayed discussion about the overall quality of Indiana's environment.

Three points must be made up front. One, the warning system that led to last week's alert is new; for that reason, it's not possible to say that air quality is worse now than, say, last year. Two, Indiana wasn't alone last week in suffering from poor air quality; states from Iowa to Pennsylvania also issued warnings. Three, overall air quality has greatly improved in recent decades. It's not that pollution has grown worse; it's that standards -- and our understanding of the health risks involved -- are now stronger.

Yet, even with those facts noted, Hoosiers have plenty of reasons to insist that state and local governments work to ensure a cleaner environment.

The chief motivation is health. * * *

A sickly environment also weakens Indiana's economic health. Corporate recruiters say quality of life is a key factor in persuading talented professionals to relocate. How many high-energy researchers or entrepreneurs will want to move to a state where joggers are being told to stay off the streets because of poor air quality?

Pride also should be a prime motive for protecting the environment. * * *

How is Indiana performing when it comes to protecting the environment? Not well.

Consider the following sad facts:

• Indiana ranked sixth in the nation last year in the Environmental Protection Agency's Toxics Release Inventory. The list is based on the tonnage of pollutants released into the air, ground and water.

• Hoosiers have been warned not to swim in most rivers and lakes because of mercury pollution. For the same reason, fishermen are warned against eating their catches.

• Only 15 percent of Indiana's original wetlands remain. Wetlands provide an essential habitat for many species, including migratory birds, and act as natural filters for water supplies.

• Indiana is far behind other Midwestern states in the amount of land set aside for parks and wildlife preserves.

• Twenty-four counties, home to two-thirds of the state's population, have been declared non-attainment areas for failing to meet ozone standards. Again, the poor air quality not only poses a health risk but an economic concern as well.

• The Indiana countryside is being transformed by sprawl. About 100,000 acres of farmland are lost each year to development.

Unfortunately, few of those facts were discussed during last year's gubernatorial and legislative campaigns. The environment simply didn't register on the political agenda. Neither has it garnered much attention during the General Assembly's current session. Economic development, education, child protection and government reorganization are all important issues, requiring substantial investments of time and resources. But Indiana's sickly environment must no longer be ignored.

Among the letters today on the page facing this editorial is one from Bowden Quinn of the Sierra Club, who writes:
By unfortunate coincidence, on Feb. 1 the House Environmental Affairs Committee passed House Bill 1268, which would loosen restrictions on open burning, only hours after the Indiana Department of Environmental Management issued its first-ever health warning for fine particulate matter in several counties, including Marion. While the bill wouldn't allow burning in counties like Marion that don't meet federal requirements for particulates, the warning makes clear that smoke from open fires can pose a health hazard.

Previously, the Senate Environmental Affairs Committee had passed Senate Bill 263 that would strengthen local health officials' ability to stop illegal open burning. The opposing bills, and the relatively close votes that each had in committee, reveal a clash of views.

Homes are spreading into previously rural areas, and the country homeowner who has been burning for years now may be sending smoke into a new subdivision where children with asthma and older people with respiratory problems live.

People who are concerned about the quality of air should ask their state representatives and senators to strengthen protections against open burning.

Posted by Marcia Oddi on Sunday, February 06, 2005
Posted to Environment | Indiana Government | Indiana economic development

Saturday, February 05, 2005

Ind. Gov't. - Details emerging on Indiana Department of Agriculture

A brief report on the site Brownfield - Jefferson City,MO,USA (America's Ag New Source), dated 2/4/05, reports:

Details on the new Department of Agriculture are beginning to be released. In testimony before the House Ag committee, Andy Miller, the head of the new department, outlined some of the changes that will be made in the very near future.

He told lawmakers he plans to hire a Deputy Director, a Director of Industry Relations, and a Director of Economic Development. He said he hopes to make those announcements in the next few weeks.

In addition, he plans to assemble a 15 member advisory board. This board will replace the Indiana Commission on Agriculture and Rural Development (ICARD). The board will advise the Department Director on matters of policy, regulations, and economic development. "My true hope is that this board will represent all aspects of Indiana agriculture from dirt to dinner," Miller said. He hopes to have the board assembled by March.

Miller also reassured lawmakers that all these changes would be done with no increase in state spending. He vowed to live within the current Commission of Agriculture budget with no additional requests during the current budget cycle.

Audio related to the story is also available from this site.

Posted by Marcia Oddi on Saturday, February 05, 2005
Posted to Environment | Indiana Government

Env't. - State's new environmental chief foresees big changes

"State's new environmental chief foresees big changes" is the headline to an AP story published Friday in the Wabash Plain Dealer. Some quotes:

INDIANAPOLIS - Indiana's top environmental official is promising to remake the state agency he now presides over into a smarter, faster, more focused entity - one that better protects the environment without stalling economic development.

Thomas Easterly knows that's a tall order but says the time has come to revamp the Indiana Department of Environmental Management, which has been run under Democratic administrations for most of its 19-year history. With only a few weeks on the job as IDEM's commissioner, Easterly, 56, is still assessing the agency's inner workings, staffing levels and chain of command. Yet big changes are already under way, including sweeping out top management and beginning work to revamp the state's permitting system. * * *

Easterly said he's believed for years that IDEM needed changes. He said he first noticed its shortcomings in the 1980s, when he held engineering positions with the New York State Department of Environmental Conservation.

Easterly said IDEM lagged behind its New York counterpart in many ways. He felt Indiana's permitting process was unnecessarily cumbersome and was driving away development - an issue he stressed last year while serving on a task force that helped come up with ideas to streamline Indiana government. Easterly said IDEM has had a mind-set that its permits ''must be perfect or they shouldn't be out there.'' He said that resulted in some industries operating on old, outdated permits renewed each year by IDEM. * * *

As commissioner, one of Easterly's most pressing tasks will be helping the state comply with new federal ozone limits and emissions of microscopic particles such as soot, much of it from power plants. Reducing those emissions, which can cause or worsen respiratory problems among children and the elderly, won't be easy in a state that gets more than 90 percent of its electricity from coal-fired power plants.

But Indiana's top environmental problem, Easterly said, is the raw sewage that regularly fouls its waterways. In 102 cities and towns, antiquated sewers send human waste into rivers, lakes and streams during rainy weather. Each of these communities is working to implement state-mandated cleanup plans. ''Even if - and we don't have it - somebody gave us billions of dollars, it would take years to fix these sewers,'' Easterly said.

Posted by Marcia Oddi on Saturday, February 05, 2005
Posted to Environment | Indiana Government

Env't. - Depleted uranium no longer a topic for JPG board

The Madison Courier reported yesterday that:

Radioactive depleted uranium that the Army left behind at Jefferson Proving Ground won't be discussed anymore by the JPG Restoration Advisory Board.

The reason is that DU never should have been a topic for the board because it doesn't fit into the federal government's definition of what can be addressed by restoration advisory boards at closed military bases, board co-chairman Paul Cloud told board members last night.

"The RAB should not become a sounding board for non-restoration environmental issues or other community concerns," Cloud read from the guidelines for restoration advisory boards.

Depleted uranium has been a major topic at the JPG board's quarterly meetings. The area at the former munitions testing site that is contaminated with DU is fenced off, and the Army says it can never remove the depleted uranium because the same area contains tons of unexploded ordnance, making removal too dangerous.

Posted by Marcia Oddi on Saturday, February 05, 2005
Posted to Environment

Env't. - Proposed legislation would steal dedicated funds from state trust

"Proposed legislation would steal dedicated funds from state trust" is the title to a 2/4/05 column by Don Mulligan, who writes "Outdoors with Don" for the The Kendallville Evening Star & Herald Republican ("Your connection to DeKalb, LaGrange, Noble & Steuben Counties in Northeast Indiana.") Some quotes:

From an unsurprisingly large pool of anti-natural resource house and senate bills introduced at the First Regular Session of the 114th Indiana General Assembly, none should infuriate a wider swath of constituents than House Bill 1451.

It provides that the annual fee paid for an environmental license plate be distributed to the State Parks and Reservoirs Special Revenue Fund instead of to the Indiana Heritage Trust as originally intended.

The environmental license plates are the light blue Indiana plates with a bald eagle flying across the sun. In 2003, 68,488 of them were sold in Indiana for $25 over the cost of a regular license plate, according to a fiscal impact statement prepared by the Indiana Office of Fiscal and Management Analysis. In that year alone, environmental plate sales rose $1,712,200.

And where there is money, there is almost always a legislator or two looking for a way to rewrite the rules and take it.

Though the Heritage Trust Fund is a dedicated fund, there have been attempts in the past to swipe it. A couple of years ago, there was an attempt to use the funds for Prophetstown State Park. That initiative was defeated.

This time, Republican State Representative Cleo Duncan would like to spend the environmental plate money for something other than what donors intended. She authored HB 1451, which “requires the director of the department of natural resources to expend the money in the fund from the fees for improving and upgrading state park projects.” * * *

So instead of using the money to purchase critical habitat and perhaps add to the measly 3 percent of Indiana that is publicly owned, HB 1451 seeks to redirect the money to be used on “park facilities, renovations, improvements, adjuncts, and appurtenances necessary or proper to the operation of public parks.”

Perhaps Rep. Duncan did not bother to read the Department of Natural Resources Web page that very succinctly describes the intent of the environmental license plate, as well as the purpose of the Indiana Heritage Trust which was established in 1992.

It reads in part, “the purpose of the Indiana Heritage Trust Program is to acquire state interests in real property that are examples of outstanding natural resources and habitats or have historical or archeological significance or provide areas for conservation, recreation, protection of native biological diversity within the state of Indiana.”

When Hoosiers were solicited to pay extra for the plate, this is what they thought they were contributing to, not park maintenance.

HB 1415 is available here.

[Thanks to BigEastern.com for the link.]

Posted by Marcia Oddi on Saturday, February 05, 2005
Posted to Environment | Indiana Government

Law - Farmers vs. trespassing "city folk"

The Washington Post has an article today titled "Not Forgiving the Trespassers: Calvert [County, MD] Farmers Put Intruding Newcomers on Notice.". It begins:

Walt L. Wells realized Calvert County was changing when he and his wife returned from church one Sunday to find a family of strangers picnicking on their 325-acre farm. "Can we help you?" Wells remembers asking them. "No," one of them responded blithely. "We're just enjoying the view."

To farmers in Calvert, where tobacco growers and watermen once dominated, this is the increasingly familiar face of sprawl: newly arrived suburbanites who treat their land like public gardens perfect for jogging, dog walking or all-terrain vehicles.

"Most of the people move here, they buy an acre and they think the other 500 around them is for" them to use, grumbled Wells, 51, president of the Calvert Farm Bureau, an advocacy group for farmers.

The agricultural community, tired of forgiving newcomers their trespasses, is fighting back. This winter, the Farm Bureau is promoting a little-known state program that offers a $500 reward for information leading to the arrest and conviction of trespassers who damage property or crops on farmland.

At a meeting last month, Craig Mask picked up one of the 14-by-11-inch red-and-white signs ("$500 REWARD," it announces in block letters) the bureau is urging farmers to post on their property. The 57-year-old vegetable farmer said he's particularly concerned about all-terrain vehicles, or ATVs, roaring through his acreage

Posted by Marcia Oddi on Saturday, February 05, 2005
Posted to Environment | General Law Related

Friday, February 04, 2005

Ind. Decisions - Transfer list for week ending February 4, 2005

Here is the Indiana Supreme Court's transfer list for the week ending February 4, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

No transfers were granted this week.

Posted by Marcia Oddi on Friday, February 04, 2005
Posted to Indiana Transfer Lists

Ind. Decisions - Three today from the Court of Appeals

Larry D. Pennington v. State of Indiana (2/4/05 IndCtApp) [Criminal Law & Procedure]
Ratliff, Senior Judge

Defendant-Appellant Larry Pennington appeals the sentence he received for his conviction of the Class D felony offense of operating a motor vehicle while intoxicated with a previous conviction within five years. Ind. Code § 9-30-5-3. He was sentenced to a term of three years, with six months suspended. We affirm.

Issues. Pennington presents two issues for our review, which we restate as:
I. Whether Pennington’s sentence is inappropriate pursuant to Ind. Appellate Rule 7(B).
II. Whether Pennington’s sentence violates his constitutional rights as set forth in Blakely v. Washington. * * *

II. Blakely Issue. Next, Pennington claims that his sentence violates his constitutional rights as set forth in the recent United States Supreme Court decision of Blakely v. Washington, 124 S.Ct. 2531 (2004). Particularly, Pennington asserts that his sentence is indicative of punishment in excess of a sentence that would be imposed for the crime with which he was charged and convicted. In support of this assertion, Pennington claims that the trial court improperly considered his refusal to submit to a portable breath test (“PBT”), the discovery of an alcohol bottle in his vehicle, his unsuccessful attempts at rehabilitation, and his criminal history in imposing an enhanced sentence. * * *

[First the Court disposes of defendant's Blakely arguments, concluding that there has been no Blakely violation. The the Court continues:]

In its brief, the State raises two Blakely-related arguments which we believe need to be addressed. First, the State contends that Pennington has waived any Sixth Amendment/Blakely issues because he failed to object at his sentencing hearing. We disagree and call the State’s attention to Strong v. State, 817 N.E.2d 256 (Ind. Ct. App. 2004), clarified on reh’g, ___ N.E.2d ___ (January 12, 2005) and Williams v. State, 818 N.E.2d 970 (Ind. Ct. App. 2004), trans. pending. In Strong, this Court stated that the defendant’s failure to object to his enhanced sentence at the trial level, by itself, does not constitute waiver. The right involved in the Apprendi and Blakely challenges is the right to a trial by jury. The Strong court explained that this right is a fundamental right guaranteed by the Sixth Amendment of the federal Constitution and by Article 1, Section 13 of the Indiana Constitution and is subject to a knowing, intelligent, and voluntary waiver. A defendant’s failure to object does not amount to this type of waiver. Strong, 817 N.E.2d at 260-61.

Additionally, in Williams, a panel of this Court stated very clearly that because defendant Williams was sentenced prior to the United States Supreme Court issuing its opinion in Blakely, Williams did not waive the challenge to his sentence pursuant to Blakely. Similarly, in the present case Pennington was sentenced on March 9, 2004, and Blakely was not decided until June 24, 2004. Therefore, Pennington did not waive his challenge to his sentence under Blakely merely by failing to object at sentencing. Further, this issue is not waived because Blakely was not yet decided at the time Pennington was sentenced.

Furthermore, the State avers that even if Pennington could not object at sentencing based upon Blakely, he should have objected based upon Apprendi and that if he failed to object based upon Apprendi, his claim is waived. Again, we disagree based on recent decisions of this Court. In Strong, we held that because the term “statutory maximum” as used in Apprendi was redefined in Blakely, a defendant who challenges his enhanced sentence but fails to do so on grounds of Apprendi has not waived his argument pursuant to Blakely. This line of reasoning was reaffirmed by another panel of this Court in Milligan v. State, 819 N.E.2d 115 (Ind. Ct. App. 2004). Consequently, there has been no waiver.

Secondly, the State asserts that, waiver notwithstanding, Indiana’s sentencing scheme is not implicated by Blakely and therefore does not affect Pennington’s sentence. Based upon recent precedent of this Court, we hold that Blakely does apply to Indiana’s sentencing scheme. See Berry, 819 N.E.2d at 454-56 and Strong, 817 N.E.2d at 261-62.

Conclusion. Based upon the foregoing, we conclude that Pennington’s sentence was appropriate and that the trial court properly enhanced his sentence using his criminal history as an aggravator and finding no other circumstances to be aggravating. In addition, the court afforded proper weight to the single mitigating circumstance that it found and did not overlook other mitigators as suggested by Pennington. Finally, there was no Blakely violation. As to the State’s allegations, we conclude that Pennington did not waive his Blakely claim and that Blakely does implicate Indiana’s sentencing scheme. Affirmed.
FRIEDLANDER, J., concurs.
BARNES, J., concurs in result.


Frank Crafton v. State of Indiana
(2/4/05 IndCtApp) [Criminal Law & Procedure]
Riley, Judge
* * * Crafton raises one issue on appeal, which we restate as follows: whether testimony of Crafton pushing Vickie Shanks (Shanks) out of a moving vehicle was properly admitted by the trial court. * * *

Based on the foregoing, we find that the trial court did not abuse its discretion in admitting evidence of Crafton’s prior misconduct and that Crafton’s Indiana Jury Rule 20 argument is waived. Affirmed.
CRONE, J., and ROBB, J., concur

Diane Galey v. Scott French (2/4/05 IndCtApp) [Family Law]
Riley, Judge
* * * Conclusion. Based on the foregoing, we find that the trial court did not abuse its discretion in denying Diane’s motion to correct error after finding that the allocation of a joint marital debt in a decree of dissolution is not res judicata against the creditor to whom the debt is owed and that the trial court did not err by assessing attorney’s fees against Diane pursuant to I.C. § 34-52-1-1. Affirmed.
CRONE, J., and ROBB, J., concur.

Posted by Marcia Oddi on Friday, February 04, 2005
Posted to Ind. App.Ct. Decisions

Ind. Courts - Oral arguments coming up next week

One oral argument is scheduled before the Indiana Court of Appeals next week. The case is Hispanic College Fund, Inc. vs. National Collegiate Athletic Association. The argument will take place at the University of Southern Indiana, Evansville at 2:00 p.m. on Thurs., 2/10/05. Here is the official summary of the case:

The Hispanic College Fund (HCA) sued the NCAA after the NCAA declined to allow the HCA to conduct an "exempt" preseason football game -- that is, one that would not count toward the maximum number of games a member school may play per year. An NCAA rule limited such games to schools with a pre-existing contract to televise the game. The trial court found for the NCAA on the grounds the court could not interfere in the internal affairs of a voluntary association when there is no allegation of fraud, illegality, or abuse of civil or property rights. HCA argues on appeal the NCAA did not deal with it in good faith, in violation of contract law, and its membership in NCAA is not truly "voluntary".
No arguments are scheduled before the Indiana Suprme Court next week.

[Update 2/7/05] The Evansville Courier& Press has a story today with the lead: "A lawsuit involving the NCAA will be heard at a special hearing Thursday in a most unusual courtroom: an auditorium at the University at Southern Indiana." However, there is nothing new about the case itself.

Posted by Marcia Oddi on Friday, February 04, 2005
Posted to Ind. App.Ct. Decisions | Indiana Courts

Ind. Gov't. - State says it needs Pine Twp (Porter County) land for prison

This brief story today in the Chesterton Tribune caught my eye and raised a number of questions:

A new state prison in Pine Township? That was the reason given by the Indiana Department of Correction for its unwillingness to sell its property in Pine Township for a potential new county park.

Porter County Park Board member Richard Maxey said at Thursday’s meeting that he had been in discussions with state officials regarding a possible sale of at least part of the 1,100 acres that the DOC owns in Pine Township. But Maxey said the DOC made it very clear that it isn’t at all interested in giving up its land.

A letter sent to the county parks by the DOC states that it wants to retain the Pine Township land because it may one day want to relocate the Michigan City state prison, Maxey said.

The matter came up at Thursday’s park board meeting after audience member and long-time park supporter Herb Read urged the board to place a priority on acquiring woodlands and wetlands. He cited several parcels in the vicinity of the Porter-LaPorte County Line Road that are, or are near to, the headwaters of the Little Calumet River.

Read noted that at one point, the DOC had plans to turn its property in Pine Township into a confined hog facility. At least part of the property is now being farmed to grow produce for state prison inmates.

Posted by Marcia Oddi on Friday, February 04, 2005
Posted to Indiana Government

Environment - EPA Inspector Finds Mercury Proposal Tainted

The Washington Post reports today that:

The Environmental Protection Agency ignored scientific evidence and agency protocols in order to set limits on mercury pollution that would line up with the Bush administration's free-market approaches to power plant pollution, according to a report released yesterday by the agency's inspector general.

Staff at the EPA were instructed by administrators to set modest limits on mercury pollution, and then had to work backward from the predetermined goal to justify the proposal, according to a report by Inspector General Nikki Tinsley. * * *

Agency officials said yesterday that Tinsley did not understand the science and limitations of mercury control, disputing her charges that the proposal was politically biased or scientifically unsound. Agency spokeswoman Cynthia Bergman said she expects the final mercury rule to be released next month on schedule.

Although industry scientists said Tinsley had exceeded both her mandate and her expertise, two staff members at the agency involved in the rule-making said the report accurately described the pressures placed on staff by political appointees.

"I don't think anyone has ever seen as much political influence in the development of a rule as we saw in this rule," said one EPA staff member, who attended meetings between administrators and staff. "Everything about this rule was decided at a political level. . . . The political level made the decisions, and the staff did what they were told."

This staff member and another, both of whom asked for anonymity because they feared the consequences of being identified, said that instead of considering a range of possibilities, staff members were told they had only one.

Here is the EPA Inspector General website. Here is the "Statement of Inspector General Nikki L. Tinsley on the Office of Inspector General Report Additional Analyses of Mercury Emissions Needed Before EPA Finalizes Rules for Coal-Fired Electric Utilities, dated February 3, 2005." Here is the one-page report summary and here is the 61-page report itself.

Posted by Marcia Oddi on Friday, February 04, 2005
Posted to Environment

Ind. Gov't. - HB 1188, which would eliminate hundred of boards, scaled back

The much written about HB 1188 (see 1/28/05 ILB entry here), has been scaled back to a study committee, according to this story today in the Fort Wayne Journal Gazette. The revised bill is are not yet available online. Some quotes:

The House Government and Regulatory Reform Committee on Thursday altered sweeping legislation that would have jeopardized hundreds of state boards and commissions.

House Bill 1188 originally would have left it to Gov. Mitch Daniels to determine the fate of the boards and commissions, which were all scheduled to expire July 1, 2006. But after much criticism, Rep. Rich McClain, R-Logansport, brought an amendment that he said took the bill “from a tsunami bill to a crystal-clear mirror lake.”

He said the intent is for all the state boards and commissions to justify their existence and functionality.

The bill would re-establish the Government Efficiency Commission, which would make recommendations to the governor about whether the panels should continue to exist. The governor would then make a recommendation to the Legislative Council, which is made up of leaders from both the House and Senate.

The council would then prepare legislation eliminating certain boards and commissions to be introduced in the 2006 session and approved by the General Assembly.

The original version of the bill would have left the final decisions to the governor, which caused concern about the legislative branch ceding authority to the executive branch.

Posted by Marcia Oddi on Friday, February 04, 2005
Posted to Indiana Government

Ind. Gov't. - Inspector general post irks county prosecutors

Buried in the obituary section on page B5 of my copy today of the Indianapolis Star is this Kevin Corcoran story headed "Inspector general post irks county prosecutors: Governor's proposal to create new position could cause misuse of authority, critics say." Some quotes:

Gov. Mitch Daniels' effort to create an inspector general with authority to criminally prosecute wrongdoing in state government is drawing fire from county prosecutors as an infringement on their power. * * * Chairman James Buck, R-Kokomo, said he would table the bill until a compromise with prosecutors can be reached.

House Bill 1002 is part of Daniels' legislative package and would toughen governmental ethics laws, putting Indiana among 11 other states with inspectors general. Daniels' proposal would expand the power of the State Ethics Commission, prohibit lobbyists from serving on state boards and commissions and tighten post-employment restrictions on state workers. The new office is estimated to cost $626,000 to $1.4 million a year. * * *

Most testimony Thursday centered on a section of the bill that would give Daniels power to personally sign off on criminal investigations by the inspector general if local prosecutors fail to act. Prosecutors say the measure would give Daniels' inspector general, David Thomas, the former Clay County prosecutor, more power than elected prosecutors.

For instance, prosecutors must go through judges to subpoena records, compel testimony and impanel grand juries, but as the bill stands the inspector general would not. "In some ways, this creates a super prosecutor," said Shelby County Prosecutor Kent Apsley, speaking on behalf of the Indiana Prosecuting Attorneys Association.

Marion County Prosecutor Carl Brizzi, a Republican, testified in support of the measure, saying he anticipates the inspector general would help prepare cases for his office to prosecute. "I think it would be difficult for an inspector general to be a cowboy," Brizzi said. "In Marion County, we have a pretty big bully pulpit. There is nothing that prevents a prosecutor from being very vocal if they feel a political witch hunt is being conducted."

But Rep. Win Moses, D-Fort Wayne, said he's concerned the bill would allow the inspector general to override local prosecutors' decisions. "Might some local prosecutors be overwhelmed by a governor saying, 'I want this investigated and I'm going to send someone in?' " Moses asked. "What protection is there against misuse of prosecutorial authority by a governor?"

Jason Barclay, Daniels' special counsel and policy director, said Daniels wouldn't compromise on giving the inspector general power to prosecute crimes. But, he said, it was not Daniels' intent to make the inspector general more powerful than a local prosecutor.

In a separate but related matter, Rep. Vern Tincher, D-Riley, also questioned the appropriateness of a provision that would allow the governor to learn the names of confidential informants. Only investigators should be privy to those names, said Tincher, a former state trooper. But Tincher's motion to amend the bill to take the governor out of the loop when it comes to the identities of whistle-blowers failed 7-5 in a party-line vote.

Here is the digest to the introduced version of HB 1002:
Synopsis: Inspector general and state ethics. Prohibits a member of the general assembly who resigns during the term for which the member was elected from lobbying or registering as a lobbyist until at least 365 days have passed since the member's resignation. Provides that the members of the state ethics commission serve at the pleasure of the governor. Creates the office of the inspector general, and allows the commission to refer a matter for investigation by the inspector general. Prohibits state officers, employees, and special state appointees from accepting employment or other benefits or from participating in any decision that would constitute a conflict of interest. Mandates a one year waiting period before a former state officer, employee, or special state appointee may accept compensation as: (1) a lobbyist; or (2) an employee of an entity that the former state officer, employee, or special state appointee negotiated with, regulated, supervised, or licensed. Prohibits a former state officer, employee, or special state appointee from any involvement in a particular matter that the state officer, employee, or special state appointee personally and substantially participated in while a state officer, employee, or special state appointee. Allows the commission to: (1) issue reprimands; (2) terminate or suspend an employee or special state appointee; (3) recommend the impeachment of a state officer; and (4) bar a person from state employment; if the commission determines that the person has violated the ethics code or committed other misconduct. Makes: (1) unlawful retaliation against an employee for cooperating with the commission; or (2) interfering with an inspector general investigation; a Class A misdemeanor. Requires the inspector general to investigate wrongdoing affecting state government and establish a code of ethics. Allows the inspector general to bring, in a matter involving public misconduct, a: (1) civil action on behalf of the state if the attorney general does not do so; and (2) criminal prosecution on behalf of the state if a prosecuting attorney does not do so. Specifies that the office of the inspector general is a law enforcement agency. Permits a prosecuting attorney to appoint the inspector general or a deputy inspector general as a deputy prosecuting attorney in a case involving public misconduct. Allows the inspector general to bring certain forfeiture actions. Makes official misconduct and profiteering from public service a Class D felony. Makes other changes and conforming amendments.
[My quick take. There seem to be quite a number of subjects, involving at least two of the three branches of government and both civil and criminal law, all rolled together in one piece of legislation here.]

Here is a link to Executive Order 05-03 - Creation of the office of inspector general, issued by Governor Daniels on Jan. 10th, 2005.

Here is the Dec. 23, 2004 Indiana Law Blog entry on the appointment of David Thomas, a Clay County prosecutor, as inspector general.

[More] Niki Kelly of the Fort Wayne Journal Gazette also reports today on the HB 1002 committee meeting. Apparently some constitutional issues (not "one subject", but "separation of powers" questions) indeed were raised in the meeting. Some quotes:

A bill meant to strengthen integrity and ethics in state government turned into a debate over the constitutional separation of powers Thursday. * * *

The bill also creates the Office of Inspector General, a centralized location meant to investigate allegations of wrongdoing in executive branch agencies. * * *

But the bill contained expansive powers for the inspector general, including the ability to prosecute criminal cases at the direction of the governor when a local prosecutor does not. Criminal prosecutions are a power of the judicial branch of government.

In addition, the inspector general would have subpoena power and the ability to review all records of a state agency, as well as empanel a special grand jury. No judge would have to sign off on these actions.

“To some extent it creates a super-prosecutor,” Shelby County Prosecutor Kent Apsley testified. “I have to go to a judge and show probable cause to do those things.” He said the bill essentially gives the executive branch a veto override over his decision to prosecute a case. “By giving some powers to the executive branch I think you are violating the separation of powers,” Apsley said.

After the lengthy testimony and questions by the committee members, Bosma conceded there were serious concerns with the bill. “I understand we may be encroaching on the separation of powers, and that was not my intent,” he said. Bosma plans to work on an amendment to address the issue.

Posted by Marcia Oddi on Friday, February 04, 2005
Posted to Indiana Government | Indiana Law

Thursday, February 03, 2005

Ind. Law - More on proposed land use changes in Adams County

Last Saturday the ILB published part of a long story from The Decatur Daily Democrat on proposed changes to the county land use regulations, including the land application of livestock manure.

That was a straight news story. Today there is an lengthy opinion piece by the same reporter, J. Swygart, who is also the opinion page editor of the Democrat. Here is the start:

Spokespersons for the Adams County Plan Commission, during a meeting last week to introduce the county's first revisions to its zoning ordinance in nearly a decade, said the panel was attempting to "level the playing field" in proposing new guidelines governing the application of livestock manure that would apply to both small- and large-scale farming operations.

Paul Rumple disagrees with that assessment, as he does with a statement made by plan commission attorney Dan Burry that the Indiana Department of Environmental Management is a "Johnny-come-lately outfit" when it comes to regulating agricultural practices.

Rumple, a Decatur area swine producer who feeds 6,000 head of hogs on a contract basis, voiced his opinions during the recent plan commission meeting. He said the proposed guidelines in the new county zoning ordinance are too lax and called for the commission to adopt more stringent guidelines - similar to those currently imposed by IDEM on "intensive" livestock operations - for all livestock producers. That, he said, would truly level the playing field in Adams County. * * *

Posted by Marcia Oddi on Thursday, February 03, 2005
Posted to Environment | Indiana Law

Ind. Gov't. - Panel awaits Trump, casino report

"Panel awaits Trump, casino report: Orange County plan is uncertain." That is the headline to a long and thorough status review of the Orange County project, reported by Grace Schneiderin today's Louisville Courier Journal. Access it here. The lead:

FRENCH LICK, Ind. -- Indiana's gambling regulators could know within six weeks whether they intend to keep the Trump company or reject its bid to build the state's 11th casino.

Ernest Yelton, executive director of the Indiana Gaming Commission, said in an interview yesterday that he hopes to have a decision on how the state should proceed within the next month or so on the Orange County project.

The commission has asked two experts to review recent financial and bankruptcy documents from Trump Hotels and Casino Resorts Inc. to determine if the company can fulfill its commitment to develop the $108 million casino project. Their findings could prove decisive in how the commission views Trump's suitability.

Posted by Marcia Oddi on Thursday, February 03, 2005
Posted to Indiana Government

Ind. Gov't. - Another anti-HB 1148 editorial

The South Bend Tribune has an editorial today that begins:

For the sake of this community and the entire state of Indiana, we hope the General Assembly will defeat House Bill 1148.

The bill's purpose is to prevent cities from taking appropriate steps to welcome the development of competitive broadband services.

It is no surprise that HB 1148 is backed by telecommunications giant SBC. The bill is aimed specifically at derailing St. Joseph Valley Metronet Inc., an independent nonprofit corporation that would encourage broadband competition.

Yesterday's Indianapolis Star editorial may be accessed here.

Posted by Marcia Oddi on Thursday, February 03, 2005
Posted to Indiana Government

Law/Ind. Gov't. - Public contracts and managing health care costs

Drug Costs/Public Records/Public Contracts. I posted an entry on Jan. 23rd titled "Interesting public records dispute in Illinois, perhaps also relevant to Indiana." It quoted from a Chicago Tribune article that began:

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.
Today the Tribune has an article headlined "Officials battling to learn details of $250 million state contract." It begins:
SPRINGFIELD -- The state of Illinois is paying a company more than $250 million this year to fill prescriptions for government workers and retirees. That much is certain.

But how much Caremark Rx Inc. charges for each prescription is a mystery. So are the administrative costs the state pays and the amount that pharmacies get for joining the program.

Caremark and Gov. Rod Blagojevich's administration won't release that information, calling it a trade secret. But lawmakers and pharmacists argue it is impossible to tell whether Illinois is getting its money's worth if the contract's details are secret.

The dispute has turned into a court battle. After two state senators filed a Freedom of Information Act request for details about the contract, Caremark obtained a restraining order barring state Comptroller Dan Hynes from releasing it. A hearing on the request is now scheduled for Friday in Cook County Circuit Court.

Government officials and public information experts say they cannot recall another time when lawmakers have had to go to court for access to a state contract.

Hospital construction costs. Back in Indiana, a story yesterday in the Evansville Courier& Press by Jennifer Whitson reported on HB 1320:
which would require hospitals to host hearings before constructing any building that costs more than $10 million. Any surgery center or smaller facility costing more than $3 million would also need public hearings. * * * The hospital would also be required to tell the public what services would be offered in the new building. The hospital could still go ahead with the construction even if there is public opposition.
Today the Courier& Press has an editorial supporting the legislation. Some quotes:
One of the more perplexing questions facing the Indiana Legislature this year is what, if anything, state government can do about the expansion of health-care facilities and their relationship to rising health-care costs. * * *

Indiana tried the certificate-of-need approach in the1980s. Health-care agencies were required to secure certificates of need from review panels before qualifying for Medicare and Medicaid reimbursement.

It was a messy business, which saw hospitals attempting to stack review boards with sympathetic members. It didn't work very well, but no one should be surprised; government often proves to be a poor monitor for planning. In addition, one recent federal study concluded that certificates of need can contribute to increased costs by limiting competition.

All that said, the public has a genuine stake in this issue, both as health-care consumer and financial backer. Tax-supported government programs such as Medicare and Medicaid heavily subsidize hospitals and health-care organizations that engage in expensive building projects. The measure at hand, House Bill 1320, passed by the House Public Health Committee, would require the hospitals to at least stand before the public and explain why they need to build shiny new buildings, when other buildings - paid for in part by public Medicaid and Medicare dollars - sit vacant and abandoned.

Posted by Marcia Oddi on Thursday, February 03, 2005
Posted to General Law Related | Indiana Government

Ind. Decisions - Tax Court posts one today

In the Matter of the Estate of Pearl Wilson, Alice W. Thomas v. Ind. Dept. of State Revenue, Inheritance Tax Div. (2/2/05 IndTaxCt) [Inheritance Tax]
Fisher, Judge

* * * The sole issue in this case is whether the probate court erred in redetermining the Estate’s inheritance tax liability. Thomas argues that, pursuant to Indiana Code § 6-4.1-7-1, the Department’s Petition was untimely filed. She claims that the probate court therefore lacked subject matter jurisdiction to redetermine the Estate’s inheritance tax liability and, as a result, the probate court’s original order of June 6, 2002 - which held that the Estate’s inheritance tax liability was zero - must be reinstated. The Department, on the other hand, argues that its Petition was timely filed. In the alternative, the Department argues that given the circumstances of the case, it was “excused” from timely filing its Petition. * * *

The Indiana Court of Appeals has held that a default judgment against a party is void ab initio if that party was entitled to notice but never received it due to faulty process. An analogous situation exists here: in order for the Department to either accept or challenge the probate court’s provisional estimate of inheritance tax liability, the Department was entitled to receive timely notice thereof. See A.I.C. § 6-4.1-5-6; § 6-4.1-5-11. Through no fault of its own, the Department did not receive any notice until after the 120-day period had already expired. Consequently, the probate court’s June 6th order, not having been properly served upon the Department, was void ab initio. Accordingly, the probate court did not abuse its discretion when it redetermined the Estate’s inheritance tax liability on the basis of the Department’s allegation of surprise.

Conclusion. For the foregoing reasons, this Court finds that the probate court did not err in redetermining the inheritance tax liability of the Estate. Accordingly, the judgment of the probate court is AFFIRMED.

Posted by Marcia Oddi on Thursday, February 03, 2005
Posted to Ind. App.Ct. Decisions

Law/Econ. Dev. - Biotech Industry Sees Potential In Ethics Rules

"Biotech Industry Sees Potential In Ethics Rules" is the headline to a story today in the business section of the Washington Post. Some quotes:

Venture capitalists, entrepreneurs and state officials say strict new ethics rules governing National Institutes of Health researchers could prompt many of them to leave for private companies -- a potential boon for the region's biotech sector.

"I think this ban will encourage people to leave, those especially who have a lot of interaction with drug companies and are currently in a position to receive a lot of money" from private companies, said Bruce D. Weintraub, a former NIH researcher who left and co-founded Trophogen Inc. in Rockville.

The same theory found favor yesterday at the Maryland Department of Business and Economic Development, where officials anticipate the new rules -- so detailed they will force thousands of employees at NIH's Bethesda campus to sell stock they hold in the biotech industry -- will push some government researchers to start their own businesses. * * *

Word of the new restrictions began circulating several months ago following reports that hundreds of NIH researchers had entered into lucrative consulting arrangements with private businesses. Agency observers worried at the time that if the rules designed to cure that perceived conflict of interest were too strict, it could cause an agency brain drain.

Those worries intensified this week when the rules were announced. They include a strict ban on consulting work for biotech and drug companies, a prohibition on accepting fees for speaking at conferences, and a mandate that researchers divest their stock holdings in biotech companies. The latter requirement in particular produced several contentious moments yesterday at a meeting between senior NIH officials and researchers.

"These researchers are just not as well compensated as they should be," said John W. Holaday, a former government researcher who launched Rockville's EntreMed Inc. "This might drive creative scientists right out of the NIH. They'll . . . do this work on their own."

Posted by Marcia Oddi on Thursday, February 03, 2005
Posted to Biotech | General Law Related | Indiana economic development

Ind. Decisions - 7th Circuit posts three today

Olson, Lawrence W. v. Wexford Clearing (ND Ill.) [10 pp.]

Before WOOD, EVANS, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. Suspecting that something was fishy with his brokerage accounts, Lawrence Olson initiated arbitration proceedings before the National Association of Securities Dealers (NASD) against a number of entities, including Wexford Clearing Services Corporation, the firm responsible for clearing the trades placed by Olson’s brokerage firm. Approximately four months after the arbitration panel dismissed Wexford from the proceedings, Olson filed a petition in federal court seeking to vacate the dismissal. The district court found that Olson was too late, given the three-month limitations period found in the Federal Arbitration Act (FAA), and dismissed his petition as untimely. We affirm.
Lalvani, Prem v. Cook County (ND Ill.) [11 pp.]
Before FLAUM, Chief Judge, and WOOD and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. Prem Lalvani, a 30-year veteran of the Cook County Hospital (CCH) Social Work Department, was terminated in 1996 when Cook County implemented a county-wide reduction in force (RIF). After several unsuccessful attempts to clarify his rights with respect to the layoff, Lalvani filed suit, alleging among other things a violation of his due process rights. The district court dismissed all of Lalvani’s claims on summary judgment. We reversed with respect to the due process claim. See Lalvani v. Cook County, 269 F.3d 785 (7th Cir. 2001) (Lalvani I). On remand, a jury found that Lalvani had merit employee status, such that he had a property interest in his job, but it also found, in response to a question posed to it, that he had not been terminated “for cause.” Based on these findings, the district court concluded that Lalvani had received all the process that he was due. The case is again before us, as Lalvani contends that the jury received erroneous instructions and that the district court erred in holding that he suffered no due process violation. We conclude that the instructions misstated the law, insofar as they directed the jury to answer the question whether Lalvani was terminated “for cause.” Based on the verdict we have, we conclude that Lalvani’s due process rights were violated. We therefore remand for a trial limited to the question of damages.
Dupuy, Jeff v. Samuels, Bryan (ND Ill.) [43 pp.]
Before BAUER, RIPPLE and MANION, Circuit Judges.
RIPPLE, Circuit Judge. Jeff Dupuy, Belinda Dupuy and Pilar Berman brought this action under 42 U.S.C. § 1983 on behalf of a class of persons who had been indicated as perpetrators of child abuse or neglect in reports maintained on the State Central Register of the Illinois Department of Children and Family Services (“DCFS”). The plaintiffs sought injunctive relief, alleging that the DCFS procedures for investigating and disclosing allegations of child abuse and neglect deprive them of due process of law. The district court granted the plaintiffs injunctive relief, and both parties have appealed. For the reasons set forth in the following opinion, we affirm in part and reverse in part and remand the cases for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Thursday, February 03, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Story on yesterday's Supreme Court ruling on economic loss

The Fort Wayne Journal Gazette has a story today on yesterday's Indiana Supreme Court decision on economic loss. A quote:

The crux of the case was purely legal – whether the Gunkels could sue under a negligent tort claim, which would allow them to receive greater damages.

The local trial court and Indiana Court of Appeals ruled against them and dismissed the case against J&N.

But the Indiana Supreme Court said Tuesday the Gunkels have a right to pursue the negligent tort claim and remanded the case back to the Steuben County Circuit Court for further proceedings.

“The economic loss rule precludes tort recovery for damage to the facade itself but tort recovery for damage to the home, and its parts, caused by the allegedly negligent installation of the facade is not limited by the economic loss rule,” the court said.

Access the ILB entry on the decision, Lawrence and Judy Lynn Gunkel v. Renovations, Inc. and J & N Stone, Inc. (2/1/05 IndSCt.) [Torts; Damages], here (2nd case).

Posted by Marcia Oddi on Thursday, February 03, 2005
Posted to Ind. Sup.Ct. Decisions

Law - More on running for judge in Kentucky

Last fall we had a number of stories on conservative groups' national attack against limits (generally via court rules) on judicial candidates stating their positions on topics that might come before them on the bench. See this 10/20/04 ILB entry for background.

Today the Louisville Courier Journal reports, in a story headlined "Judicial campaign limits out: Candidates can state positions," that:

In a victory for the conservative Family Foundation of Kentucky, state agencies that regulate lawyers and judges have agreed to drop a rule that barred judicial candidates from pledging their positions on issues likely to come before them in court.

Some experts have warned that allowing candidates to promise in advance how they would decide cases would destroy the impartiality of the courts.

But the Lexington-based Family Foundation, which sued to throw out the rule, said it violated the First Amendment and kept candidates from responding to a questionnaire about such controversial issues as same-sex marriage.

U.S. District Judge Danny Reeves issued a preliminary injunction in October barring the Kentucky Bar Association and Judicial Conduct Commission from enforcing the speech restrictions, and on Monday a settlement was struck in which the two agencies agreed to drop the rule, lawyers for both sides said. * * *

James Bopp, an attorney for the Family Foundation who is challenging similar rules in three other states, including Indiana, said the demise of Kentucky's rule is "a victory for the people, who will have more information when they vote for candidates for judicial office."

The portion of the Code of Judicial Conduct that was dropped said "a judge or candidate for election to judicial office shall not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office."

It also said candidates "shall not make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court." * * *

Lawyers say the court is likely to adopt a narrower rule proposed by the American Bar Association that would bar judges from making pledges or promises "inconsistent with the impartial performance" of their duties on matters likely to come before them.

But Bopp, a Terre Haute, Ind., attorney who has won cases striking down judicial speech rules in Minnesota and Alabama, said he doesn't think that language would be constitutional either and he likely would challenge it. * * *

The U.S. Supreme Court held in 2002 in a case from Minnesota that judicial candidates have a free-speech right to "announce" their views. But the court didn't address more specific rules in Kentucky, Indiana and most other states.

The 2002 U.S. Supreme Court decision referenced is Republican Party of Minnesota v. White, Chairperson, Minn. Bd. of Judicial Standards.

Posted by Marcia Oddi on Thursday, February 03, 2005
Posted to General Law Related | Indiana Courts

Ind. Gov't. - FSSA Secretary Roob vows to rein in Medicaid

Evansville Courier& Press reporter Jennifer Whitson writes today on FSSA Secretary Mitch Roob's testimony before the House Ways & Means Committee yesterday. Some quotes from the lengthy story:

The Family and Social Services Administration has "dozens" of different accounting systems in place for tracking money the mega-agency spends.

And the agency has trouble tracking its contracts with roughly 10,000 vendors and service providers and can't effectively audit whether the vendors provide the services needed.

Those are just a few of the hurdles agency Secretary Mitch Roob pointed out to lawmakers on the House Ways and Means Committee on Wednesday as he told them how he hopes to change the agency and rein in the budget to 5 percent growth, despite projections of 10 percent increases in both enrollment and the cost of health care.

A large part of the Family and Social Services Administration's responsibility is oversight of Medicaid - the state's health-care program for poor pregnant women and children, the developmentally disabled and seniors.

During his testimony, Roob said he believes drastic savings can be found and that agency workers are drafting legislation for some law changes needed to cut costs. He said there are also many things he could do differently in just administering the agency that would save money. * * *

"Elder law attorneys, frankly, come in and know our system better than our case workers do," Roob said. "We need to arm our case workers better."

Posted by Marcia Oddi on Thursday, February 03, 2005
Posted to Indiana Government

Env't. - Still more on Gov. Blagojevich's landfill closings

"Landfill may face contempt charge: State hits dump tied to Mell in-law" is the headline to this story today in the Chicago Tribune, continuing the saga last reported here on Jan. 29th. A quote:

As Gov. Rod Blagojevich and his influential father-in-law try to patch up their tempestuous relationship, the owner of the Joliet landfill that provoked their bitter public feud may be dragged back into court by state environmental regulators.

The Illinois Environmental Protection Agency said it is asking state lawyers to seek contempt of court charges against Frank Schmidt--a distant cousin of the governor's wife, Patti--for failing to remove contaminated soil and for not obtaining a state permit to pump wastewater out of his landfill.

Posted by Marcia Oddi on Thursday, February 03, 2005
Posted to Environment

Wednesday, February 02, 2005

Environment - Several recent stories

The LaPorte Herald Argus reports:

LAPORTE — The state of Indiana has stepped up pressure on Srilata Verma, owner of the former Allis-Chalmers powerhouse.

Two weeks ago the Indiana Attorney General’s Office filed a motion in LaPorte against Verma, who lives in India, asking the court to rule against her in the city’s effort to clean up the deteriorating structure.

A number of steps have been taken that led up to the court system finally getting involved in the matter. The Indiana Department of Environmental Management (IDEM) issued a notice of violation in July 2001 because the structure emitted pollution, it contained solid waste that was a threat to public health and the environment, and Verma didn’t identify seven drums of unknown waste on the property.

IDEM entered into an agreed order for Verma to correct the situation, but nothing was done. The next step was a petition for civil enforcement, followed by January’s order for summary judgment in LaPorte Circuit Court.

"Open dump owner ignores IDEM" is the headline to this story by Seth Slabaugh in the Muncie StarPress. Sme quotes:
The alleged owner of an open dump that sickened a county health department inspector has not responded to a notice of violation issued a year ago by the Indiana Department of Environmental Management. IDEM delivered the notice of violation to Arthur Hicks Jr., a retired business agent for the Teamsters union, on Feb. 10, 2004. * * * IDEM spokesperson Amy Hartsock [said] "We later provided a a proposed agreed order to try to negotiate a settlement, but he has not responded to that. We also sent a letter telling him what our next step would be if we decided to take it: a commissioner's order." * * * The notice of violation gave Hicks 60 days to try to negotiate a settlement of the complaint or face a commissioner's order and a civil penalty.
"Courthouse air fixes could cost $320,000: Morgan County officials will discuss report on problems blamed for illnesses" is the headline to this story in today's Indianapolis Star. We've posted a number of earlier entries about the Morgan County Courthouse "sick-building" problems. Some quotes from the Star story:
MARTINSVILLE, Ind. -- The Morgan County Courthouse air-handling system needs an overhaul costing up to $320,000, according to a report released Tuesday by an independent consulting firm.

American Consulting's analysis of the air-handling system, which has been blamed for people getting sick, concluded that little or no fresh air made it to the offices in the basement and that a closed damper kept outside air from entering the Superior 3 Courtroom -- where complaints originated in July.

Enough outside air was entering the building, the Indianapolis-based firm's report said, but it needed to be distributed better.

The downtown Martinsville building has been vacant since August. County employees have moved to the basement of the nearby administration building. * * *

The cost does not include the cleaning of bird droppings and other contaminants in the building's attic, which will be done separately.

"Waste violations targeted" was the headline to this story in the Richmond Palladium-Item several days ago. Senate Bill 123 was heard in the Senate Environmental Affairs committee last week. Some quotes:
[The bill's author, Sen. Allen Paul, R-Richmond] said he was approached about a bill by Randolph County residents in his district who want more state control over confined animal feeding operations.

"It's unusual to have people come to you with bills. Usually we're approached by lobbyists. It's time to talk about this issue. You can't let these things blow in the wind," Paul said.

The bill was heard by the Senate Energy and Environmental Affairs Committee Monday. The committee didn't vote on the bill, but agreed to work with Paul on the bill.

IDEM will be providing some ideas on language for the bill that will be acceptable to the agency, Paul said. He's hopeful those changes will be ready by the second week of February so the committee can proceed, he said.

"I'm willing to put forth the extra effort for this bill," Paul said. "I want to get it right the first time. If the (final version) of the bill doesn't do anything, I'll kill it myself."

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to Environment

Law - Alcohol problems for judges in Ohio and Michigan

The South Bend Tribune reports today that "St. Joseph County Circuit Court Judge James Noecker became the ninth Michigan judge to be removed from office by the state Supreme Court since 1969 in a 6-1 decision Tuesday." More:

[T]he man who prosecuted the misconduct charges on behalf of the Michigan Judicial Tenure Commission said Tuesday that the Supreme Court agreed that Noecker had lied about using alcohol before crashing his vehicle into the side of a rural Sturgis convenience store in March 2003. * * *

While Tuesday's decision will end Noecker's $139,919 annual salary paid by the state and benefits paid by St. Joseph County, the ruling will have little immediate impact on court operations. A series of visiting and retired judges has been enlisted to cover the Circuit Court's docket since the Supreme Court initially suspended Noecker on June 1.

Meanwhile, in Ohio, Supreme Court Justice Alice Robie Resnick "was pulled over and charged with driving under the influence after several motorists called to report an erratic driver on an interstate," according to an AP story. The Cleveland Plain Dealer has lengthy coverage.

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to General Law Related

Ind. Decisions - Supreme Court posts two today

Frederick Laux v. State of Indiana (2/2/05 IndSCt) [Criminal Law & Procedure]
Shepard, Justice

A jury found appellant Frederick A. Laux guilty of murder, felony murder and burglary resulting in bodily injury. The court sentenced him to life without parole, plus twenty additional years for the burglary count. On appeal, Laux makes one claim warranting relief: that a no-contact order was improperly incorporated into his sentence. We otherwise affirm. * * *

Conclusion. We vacate the no-contact order, but affirm in all other respects.
Dickson and Boehm, JJ., concur.

Sullivan, J., dissents with separate opinion.
Rucker, J., dissents from Part I of the majority opinion
for the reasons expressed in Ritchie v. State, 890 N.E.2d
258, 271-74 (Ind. 2004) (Rucker, J., dissenting in part).
In all other respects I fully concur.

Sullivan, Justice, dissenting.

I respectfully dissent in two respects from the Court’s opinion.

I believe the trial court acted within its discretion in entering an order prohibiting Laux from contacting Heidi’s family, including Heidi’s parents and Heidi’s and Laux’s children. * * *

The Court reviews Laux’s request that the sentence of life without parole be revised. The Indiana Constitution provides that “the Supreme Court shall have, in all appeals of criminal cases, the power to review and revise the sentence imposed.” Ind. Const. art. VII, § 4. Our rules authorize revision of a sentence “if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). Unlike the Court, I would grant limited relief. * * *

Lawrence and Judy Lynn Gunkel v. Renovations, Inc. and J & N Stone, Inc. (2/1/05 IndSCt.) [Torts; Damages]
Boehm, Justice
We hold that damages recoverable in tort for a defective product or service are governed by the “economic loss” doctrine whether or not the product or service is supplied in a transaction subject to either the Products Liability Act or the Uniform Commercial Code, or both. Under the doctrine, physical injuries and damages to other property are recoverable in tort, but damages to the defective product itself are not. Whether damaged property is “other property” turns on whether it was acquired by the plaintiff as a component of the defective product or was acquired separately. * * *

Conclusion. Summary judgment as to the negligence claim is reversed. This case is remanded for further proceedings consistent with this opinion.
Shepard, C.J., and Dickson, and Rucker JJ., concur.

Sullivan, J., dissents, believing the analysis and conclusion of the Court of Appeals in this case, 797 N.E.2d 841 (Ind. Ct. App. 2003), is correct.

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals posts six today, Tax Court posts one

Tack's Steel Corporation v. ARC Construction Company, Inc. (2/2/05 IndCtApp) [Contracts]
Bailey, Judge

* * * Conclusion. ARC is not entitled to summary judgment based on its assertion that comparative fault issues have been resolved in an Agreed Entry to which Tack’s was not a party. The indemnification clause does not strictly limit recoverable attorney fees to those involved in settling the underlying claim, but ARC should not be reimbursed for fees incurred in attempting to force its settlement upon Tack’s. Finally, this Court lacks jurisdiction to calculate Tack’s claimed worker’s compensation lien. Reversed and remanded.
DARDEN, J., and MATHIAS, J., concur.

Grant F. Shipley v. KeyBank National Association
(2/1/05 IndCtApp) [Procedure]
Sharpnack, Judge
* * * For the foregoing reasons, we affirm the denial of Shipley’s Ind. Trial Rule 60 motion and affirm the trial court’s nunc pro tunc order granting Shipley’s motion for summary judgment on the issue of repayment of attorney fees and ordering Shipley to deposit all fees paid to him as attorney for the former New Friction receivership with the clerk of the Huntington Circuit Court for distribution by that court, Affirmed.
BAKER, J. and FRIEDLANDER, J. concur
Darrick D. Pinkston v. State of Indiana (12/29/04 IndCtApp) [Criminal Law & Procedure]
[Originally issued as NFP]
Baker, Judge
* * * Specifically, Pinkston argues that: (1) the trial court erred in granting the State’s challenge for cause of a potential juror who was an African-American; (2) the trial court erroneously admitted evidence of a prior “bad act” that he had allegedly committed; (3) the trial court erroneously admitted a photograph of the murder victim, along with trial testimony of his sister regarding her relationship with the victim; (4) the trial court erred in refusing to give instructions on lesser included offenses; and (5) the State failed to adequately negate his claim of self-defense beyond a reasonable doubt. Concluding that there was no reversible error, we affirm the judgment of the trial court. * * *

In light of our disposition of the issues set forth above, we conclude that the trial court properly dismissed a juror pursuant to the State’s challenge for cause, and did not err in admitting Pinkston’s statements into evidence that Pinkston made while he was incarcerated and awaiting trial. Additionally, Pinkston has waived the argument as to whether a photograph of the murder victim, along with the testimony of his sister, were properly admitted into evidence, and the trial court did not err in refusing to give Pinkston’s tendered instructions on lesser-included offenses. Finally, we conclude that the State adequately negated Pinkston’s claim of self-defense. The judgment of the trial court is affirmed.
ROBB, J., concurs.
KIRSCH, C.J., concurs on issues I, III, IV, and V. Dissents on issue II.

Bloomington Area Arts Council v. Department of Workforce Development (1/31/05 IndCtApp) [Administrative Law; Employment]
Sharpnack, Judge
The Bloomington Area Arts Council (“BAAC”) appeals the decision of a Liability Administrative Law Judge (“ALJ”) for the Department of Workforce Development, Unemployment Insurance Appeals (“Department”) in which the ALJ found that the BAAC owed unemployment insurance tax contributions for instructors of various art classes offered to the public by the BAAC. The BAAC raises one issue, which we restate as whether the ALJ erred by determining that the instructors are employees of the BAAC within the meaning of Ind. Code § 22-4-8-1(a) [of the state unemployment compensation law]. We affirm. * * *
BAILEY, J. concurs

MAY, J. dissents with separate opinion
Application of the three part test in Ind. Code § 22-4-8-1 leads me to conclude the instructors of BAAC art classes are independent contractors and not employees of BAAC. I must therefore respectfully dissent. * * *

I would accordingly reverse the ALJ’s determination the art class instructors were employees of BAAC.

Jeffrey Patrick, et al. v. Richard Miresso (1/31/05 IndCtApp) [Torts; Gov. Immunity]
Crone, Judge
Case Summary. Jeffrey Patrick and the City of Gary (“the City”) (collectively, “Appellants”) appeal the denial of their motion for summary judgment with respect to Richard Miresso’s negligence claim. We affirm and remand for further proceedings.

Issue. We consolidate and restate the four issues Appellants present as whether the trial court erred in concluding that Appellants are not entitled to law enforcement immunity under Indiana Code Section 34-13-3-3(8) of the Indiana Tort Claims Act (“ITCA”) * * *

In light of Benton and King, then, we must conclude that Quakenbush’s rationale for holding that Indiana Code Section 34-13-3-3(8) does not provide law enforcement immunity under these circumstances is no longer controlling. * * *

For purposes of our analysis, we conclude that Indiana Code Section 34-13-3-3(8) irreconcilably conflicts with Indiana Code Section 9-21-1-8 in regard to the liability of drivers of authorized emergency vehicles who cause a loss resulting from the enforcement of a law while driving such vehicles within the scope of their employment. * * * To the extent that Indiana Code Section 34-13-3-3(8) conflicts with Indiana Code Section 9-21-1-8, we hold that Indiana Code Section 9-21-1-8 prevails. Consequently, Appellants are not entitled to law enforcement immunity under the ITCA under these circumstances. The trial court did not err in denying Appellants’ motion for summary judgment.

As a final matter, we note that we are fortunate to have legislative guidance, albeit conflicting, in determining the existence of governmental immunity in this case. In a different case involving different facts, we might find ourselves with substantially less guidance. We are frankly troubled by the prospect that police officers, police training and legal departments, and city officials, as well as courts, have insufficient guidance in navigating the confusing landscape of governmental immunity in many difficult circumstances.

In sum, we affirm the trial court’s denial of summary judgment and remand for further proceedings consistent with this opinion. Affirmed and remanded.
RILEY, J., and VAIDIK, J., concur.


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 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 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.

William and Dorothy Long v. Wayne Township Assessor (1/28/05 IndTaxCt) [Property Tax]
Fisher, J.
* * * The sole issue for this Court’s review is whether the Longs made a prima facie showing that their assessment was erroneous. * * *

For the aforementioned reasons, the Longs have not made a prima facie showing that their assessment is in error. Consequently, the Court AFFIRMS the Indiana Board’s final determination. Summary judgment is thereby GRANTED in favor of the Assessor and AGAINST the Longs.

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts five today; including an important Blakely/Booker ruling on retroactivity

Russell, Tracy v. Harms, Bryan (SD Ill.)

Before FLAUM, Chief Judge, and EASTERBROOK and SYKES, Circuit Judges.
FLAUM, Chief Judge. Tracy Russell and Jennifer Davis filed this suit under 42 U.S.C. § 1983, alleging that Illinois State Police Officers Bryan Harms and J. Dustin King, and White County Sheriff’s Department Officer Doug Maier violated their rights under the Fourth Amendment to the United States Constitution. The district court granted summary judgment in favor of defendants, and Russell and Davis appealed. Because we conclude that plaintiffs have failed to establish a Fourth Amendment violation as a matter of law, we affirm.
Hanson, Craig v. Educational Credit (WD Wis.)
Before BAUER, MANION, and EVANS, Circuit Judges.
BAUER, Circuit Judge. Debtor-appellant Craig Hanson filed for Chapter 13 bankruptcy relief in November 1992, listing only his unsecured student loan debt of approximately $31,500 on his Chapter 13 schedules. After Hanson’s Chapter 13 plan was confirmed without objection, Hanson made monthly payments of $135 over 60 months on his student loan, and the bankruptcy court entered an order discharging his debt in September 1997. The discharge order was erroneous because the Bankruptcy Code makes student loan debt nondischargeable absent a showing of undue hardship by the debtor, and Hanson had made no such showing. Despite the error, the order went unchallenged until May 2003, when creditor Educational Credit Management Corporation (“ECMC”) filed a motion for relief from the discharge order in the bankruptcy court. The bankruptcy court granted ECMC’s motion, and the district court affirmed. We affirm.
McReynolds, Marlon v. USA (SD Ind., Larry J. McKinney, Chief Judge)
Before EASTERBROOK, WOOD, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. * * * We conclude, then, that Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005. That date, rather than June 24, 2004, on which Blakely v. Washington, 124 S. Ct. 2531 (2004), came down, is the appropriate dividing line; Blakely reserved decision about the status of the federal Sentencing Guidelines, see id. at 2538 n.9, so Booker itself represents the establishment of a new rule about the federal system. Petitioners’ convictions and sentences became final well before Booker was issued, and its approach therefore does not govern these collateral proceedings.

Because this decision affects a substantial volume of post- Booker litigation, it was circulated before release to all active judges. See Circuit Rule 40(e). No judge favored a hearing en banc. * * * Affirmed.

[Here is a link to the Sentencing Law Blog's take on McReynolds.]

Horn Farms, Inc. v. Johanns, Michael (ND Ind., Allen Sharp, Judge)

Before BAUER, EASTERBROOK, and WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. Farmers who convert wetlands to agricultural use lose eligibility for federal agricultural subsidies. The initial version of this statute, 16 U.S.C. §§ 3821-24, enacted in 1985 and dubbed “Swampbuster,” made the loss proportional to the amount of wetland converted. An amendment in 1990 provided that converting any wetland would cause the farmer to lose all agricultural payments. A further amendment in 1996 added an exception for wetlands that had been drained and farmed, had reverted to wetland status, and then were restored to agricultural use. We must interpret and apply the 1996 exception. * * *

[Opinion includes a number of criticisms of district court.]

So the Secretary’s interpretation not only is reasonable but also is the most sensible understanding of the legislation. Moreover, because the interpretation is expressed in regulations adopted after notice and opportunity for comment, see 7 C.F.R. §§ 12.2(7), 12.2(8), and concerns the Secretary’s administration of a federal program, it receives all of the deference contemplated by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Yet the district court concluded that a solitary statement by one of the legislation’s sponsors overrode all of this. * * *

The judgment is reversed, and the case is remanded with instructions to enter judgment against Horn Farms.

Fast, Peggy A. v. Barnhart, Jo Anne B. (SD Ind., John Daniel Tinder, Judge)
Before POSNER, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Peggy Fast seeks disability insurance benefits, alleging that nonexertional mental impairments, including delusional disorder, depressive disorder, and paranoid personality disorder, render her unable to work. The Administrative Law Judge (ALJ) denied her request on the ground that she is still able to perform a significant number of jobs within the regional economy. The district court affirmed, and Fast appeals, arguing that the ALJ erred because he relied exclusively on testimony from a Vocational Expert (VE) rather than using the Medical Vocational Guidelines (commonly known as the grids) as some kind of binding “framework” for his decision. Fast’s argument that the grids must structure the outcome to this degree is not supported by Social Security regulations, the agency’s internal management directives, or relevant judicial decisions. We therefore affirm.

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Two Evansville foot doctors immersed in disputes

Evansville Courier& Press reporter Maureen Hayden had a long and interesting story Monday about two Evansville podiatrists, married, and immersed in litigation. It begins:

Two Evansville foot doctors are facing a near-record number of medical malpractice claims and allegations of unnecessary surgery and questionable billing practices. The doctors, the husband and wife podiatry team of Thomas and Lori Hupfer, also are immersed in a multimillion-dollar bankruptcy case and a legal dispute over $169,000 in back taxes and penalties allegedly owed to the Internal Revenue Service.

The government alleges the couple failed to pay a portion of their employees' withholding taxes over several years. The Hupfers say it was their accountant's fault. The Hupfers own the Evansville Foot & Ankle Center on Lincoln Avenue. Both are doctors of podiatric medicine.

Information about the number of malpractice claims the couple face became available over the Internet late last year, when the Indiana Department of Insurance began posting information on a new Web site.*

According to the department, 15 malpractice claims have been filed against Thomas Hupfer since 1999, and nine claims have been filed against Lori Hupfer during the same period. Two of the claims were dismissed after medical review panels found no malpractice had occurred. But the medical review panels found that malpractice had occurred in five other cases, including one in which an Evansville woman claimed the couple performed unnecessary surgery that left her disabled.

The remaining claims are still pending, awaiting review by medical review panels. They involve allegations of premature, inappropriate or unnecessary surgical procedures. Some of the former patients who are suing also contend they were billed for procedures not performed.

Despite the findings of the medical review panels, the Hupfers are fighting the claims in court. They deny allegations of wrongdoing, and contend the malpractice claims are motivated by greed and politics.

*The Indiana Patients' Compensation Fund - Medical Malpractice website is available here. The link to the Indiana Patient's Compensation Fund Database is near the end of the page.

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to Indiana Law

Law - National mining rights story from Kentucky

"Government wins mining ruling: Precedent possible on property rights" is the headline to this story today in the Louisville Courier Journal. James Bruggers writes:

An appeals court has overturned a ruling that would have forced the federal government to pay millions of dollars to a Kentucky company that argued that a 1977 law had illegally stripped it of the right to mine coal under the Daniel Boone National Forest.

If left unchallenged, last Friday's decision by a federal court would establish a national precedent in property rights cases, safeguarding the government's ability to enforce environmental rules.

And it might bring to a close a 25-year legal battle involving Robert Gable, a former head of the Republican Party in Kentucky and a two-time candidate for governor.

Gable, of Lexington, is chief executive officer of the Stearns Co., which had won a 2002 ruling of $5 million, plus 20 years of interest and attorney fees, after his lawyers successfully argued that provisions of a 1977 law regulating surface damage from the mining of coal had effectively taken the coal from him. * * *

Gable said he's uncertain whether he'll appeal the decision of the U.S. Court of Appeals for the Federal Circuit. It handles appeals of cases from the U.S. Court of Federal Claims, which deals primarily in monetary claims involving the government. * * *

Two environmental lawyers involved in the case, and another who has watched it closely, called the ruling a significant victory in the national battle over property rights.

They said they are not surprised because it upholds well-established legal tenets from earlier cases, and said it could have been devastating had the ruling gone the other way.

If the lower-court ruling had been upheld, "the surface mining law would have been gutted, and rendered unenforceable," said John D. Echeverria, who had filed a friend of the court brief in the case for the Kentucky Resources Council, an environmental group. * * *

Because the appeals court of the Federal Circuit handles appeals from across the country, the ruling is binding on federal cases nationally involving the taking of private property, Sugameli said.

The 1/28/05 decision of the U.S.C.A. for the Federal Circuit, The Stearns Company Ltd. v. U.S., is available here.

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to General Law Related

Law - Kentucky judge won't open state's juvenile courts

"Judge won't open state's juvenile courts" is the headline to this story today in the Louisville Courier Journal. Some quotes from the story by Deborah Yetter:

A federal judge has rejected efforts by the Kentucky Press Association to open proceedings of the state's juvenile courts to the public.

U.S. District Judge Joseph M. Hood yesterday dismissed a lawsuit filed by the newspaper group seeking to open the courts that hear cases involving children, including criminal proceedings and those involving truancy, abuse and neglect.

Hood ruled that the courts -- which have been closed to the public for about two decades under state law -- "have not been historically open to the press or the public."

Hood cited a Kentucky Supreme Court finding that the "purpose of the shroud of secrecy and confidentiality … is to protect the juvenile." * * *

The press association had argued that the law closing juvenile courts is unconstitutional because it conflicts with the Kentucky Constitution, which requires courts to be open.

More than 20 states allow full or partial public access to juvenile courts.

What about Indiana? I actually don't know - anyone?

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to General Law Related

Ind. Gov't. - New correction chief says he can fix system

"New correction chief says he can fix system: More funding not needed, panel told," reads the headline to this story today by Lesley Stedman Weidenbener
in the Louisville Courier Journal. The lengthy story begins:

INDIANAPOLIS -- The Indiana Department of Correction plans to open new prison space, bring Hoosier inmates back from a private prison in Kentucky and provide prisoners with more drug treatment and community-based services.

And new Correction Commissioner J. David Donahue told the House Ways and Means Committee yesterday that he can do it all without a penny more in his budget, despite projected increases in the inmate population.

"We are prepared to move forward with the amount that was appropriated" in the last budget, Donahue said. "It will meet the needs of our agency."

With that, Donahue enjoyed a warm reception from the budget-writing committee, which is trying to develop a state spending plan with little new revenue.

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to Indiana Government

Ind. Gov't. - More on I-69 toll road potential

The Evansville Courier& Press has an editorial today on "I-69 and Tolls." It begins:

Indiana's highway commissioner - new to the position of point man for the Interstate 69 project - was a bit too quick last week in dismissing the idea that I-69 from Evansville to Indianapolis might be a toll road.
It goes on to quote from their reporter Jennifer Whitson's informative stories on the issue, which are also quoted in this ILB entry last Saturday, titled "I-69 toll road called not viable, or NOT."

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to Indiana Government

Ind. Gov't. - Star editorial: Don't disconnect cities

The Indianapolis Star has an editorial today titled "Don't disconnect cities." Some quotes:

If Indiana had total penetration of reliable, competitive high-speed Internet access, it might make sense to restrict investment or subsidies by local governments in providing such service.

But that's not the case. And so state lawmakers should kill House Bill 1148, which would all but bar communities from building and offering public Internet services.

According to the Indiana Department of Commerce, as of 2003 only three in 10 Indiana residents were hooked up to a high-speed Internet provider, compared to about 50-percent penetration nationwide. In much of southern Indiana, reliable high-speed Internet access simply doesn't exist, except where enterprising communities such as Scottsburg have created their own networks. * * *

High-speed Internet access is increasingly crucial to economic development, education, medicine, communication and commerce. Being bypassed by broadband is equivalent to being bypassed by the railroads or interstate highways in earlier eras.

Access the most recent ILB entry on this topic here.

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to Indiana Government

Law - How bloggers have impacted the U.S. Supreme Court

A great article by national legal journalist Dahlia Lithwick, pointed to this morning by How Appealing.

It caused me to recall how only a few years ago, many of us could follow the Supreme Court only via rare stories in national papers, or by the weekly CCH (or was it BNA) loose-leaf, Law Week.

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to General Law Related

Law - Very interesting Connecticut suit against Anthem

"$93M Bounty for State Employees? Public defender leads the way in bid for piece of Anthem conversion payout" is the headline to this story originally from The Connecticut Law Tribune. Some quotes:

Unclear writing is a gold mine for lawyers. And for some 30,000 state employees who had Anthem Blue Cross and Blue Shield health insurance during 2001, it could turn into a $93 million windfall.

But first, somebody has to figure out what "member" means. That honor has fallen to Hartford Superior Court Judge Michael R. Sheldon in the tantalizing case of Ronald Gold v. John G. Rowland, et al.

Gold is a senior assistant public defender and the lead plaintiff in a potentially huge state employee class action. His goal is to win back, for himself and other state employees, close to $100 million that Anthem paid to Connecticut when it converted from a mutual to a stock company in 2001.

Anthem read the applicable language in statutes, articles of incorporation and bylaws as saying there is only one "member" entitled to be paid -- the state. Although much of the abstruse language was drafted by Anthem and its subsidiaries, it's not clear that Anthem read it correctly -- or paid the right party -- Sheldon concluded in a Jan. 10 decision denying the insurer's motion for summary judgment. * * *

In the private sector, individual employees in Connecticut have received substantial "demutualization" payoffs of Anthem stock, Robbin said. "The amount has ranged from a couple thousand to $15,000 worth of stock. Single people. This isn't the typical class action where each class member is going to recover a $10 gift certificate to something. This is real money we're talking about," she said.

Robbin added, "As far as Judge Sheldon's decision, we consider that a major victory, and hopefully a wake-up call to Anthem, because prior to this decision, Anthem viewed this case as simply a battle between the state and its employees over the $100 million that it had already issued to the state. After reading this decision, Anthem is going to have to realize its exposure directly to the employees for another $100 million dollars."

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to General Law Related

Ind. Law - State may jump on red-light camera bandwagon

"State may jump on red-light camera bandwagon: Local intersections would be among those getting watchdogs under legislative plan." This is the headline to this story today in the Indianapolis Star. Some quotes:

Indianapolis drivers could be among the first in the state to face intersection cameras -- intended to nab those who blow through red lights -- if lawmakers approve the idea this year, city officials said Tuesday.

The proposal would let 10 Indiana cities and towns test the $55,000 cameras, which snap pictures of license plates on cars that run a stoplight, and Indianapolis would apply to be a part of the pilot program.

Despite privacy concerns, red-light cameras are gaining popularity nationwide, and the idea may have a better shot in Indiana this year because Republicans control both the General Assembly and the governor's office. * * *

The current proposal would let cities and towns issue citations up to $100 based on the pictures but also would require signs to alert drivers that cameras are in use. Only 10 intersections in each community would be covered during the initial period.

Traffic accidents "change people's lives in an instant," [Indianapolis Mayor Bart] Peterson said. "It's purely a traffic safety issue for me."

The Star notes: "Senate Bill 570, which would allow 10 Indiana cities to install red-light cameras, will be heard at 1:30 p.m. today in Room 130 of the Statehouse."

Reading the Star story this morning, I recalled a NY Times story from earlier this year. The story, published in the Technology section of the Times on Jan. 6, 2005, begins:

ON a perfectly clear day in October, Carla Correa, a confessed neurotic when it comes to getting a ticket, powered her Honda Civic toward an intersection in Baltimore on her way to visit her boyfriend in Washington. When the light turned yellow, she did not simply cruise through, but instead slammed on the brakes.

Seconds later, a truck rammed her from behind, and her car was wrecked.

Why would she do such a thing? The answer could be found in a box mounted on a nearby post, with a lens pointed at her license plate.

"It's an intersection that I've been through a million times before, and I knew that it was a quick yellow light," Ms. Correa, 25, said in a telephone interview. She also knew that the intersection was equipped with a camera. "And when I saw the yellow, I freaked out."

Though unhurt, Ms. Correa has made a resolution: from now on, if it seems the light is about to turn red, she is going to run it. "If I hadn't known there was a red-light camera there, I would have gone through," she said. "Every time I see the red-light camera, I'm terrified by it. It's a $70 ticket." (Actually, it's $75.)

Her experience is not an anomaly. Cameras like the one she spotted are now in use in more than 100 American cities. Activated by road sensors when a car enters an intersection belatedly, the systems provide evidence of a violation, including photos of the license plate and in some cases, the driver.

While Baltimore reports that violations for running red lights have gone down 60 percent at the 47 intersections with such cameras, several studies in recent years - in places like San Diego, Charlotte, N.C., and Australia - have offered a fuzzier picture. The studies have shown that the reduction in side-angle collisions at the intersections has been wholly or largely offset by an increase in rear-end accidents like Ms. Correa's.

In addition, there has been criticism of the cameras' use to generate revenue from fines - in some cases exceeding $300 per violation, with points on a driver's record - and of revenue-sharing arrangements with providers of the technology. Those arrangements, critics contend, have led to the placement of cameras not necessarily where they would best promote safety, but where they will rack up the most violations.

Those questions, along with malfunctions and legal challenges, have led some local governments to remove the cameras. Virginia's legislature is considering whether to renew a law, expiring in July, that permits the cameras, used in six Virginia cities.

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to Indiana Law

Ind. Law - Editorials laud Senator Gard's open meetings bill

This Evansville Courier& Press editorial from Monday, and this Muncie Star-Press editorial today strongly support Senator Bev Gard's SB 310. Says the StarPress:

Indiana residents who prefer their government be more open and accessible should be happy with a Senate bill that aims to do that. SB 310, authored by Sen. Beverly Gard, R-Greenfield, would make it less likely that local governing boards, councils and commissions could "divide" and hide pertinent discussion from the public, as many do now.

This current practice by too many school boards, city councils and other governing bodies employs a series of meetings - none of which includes a quorum of voting members - to plan and discuss projects while away from public's scrutiny. The result is that unwary citizens miss out on valuable discussion points and often learn of major policy decisions just before final votes are taken (once entire governing boards have assembled).

While these tactics aren't illegal, they certainly skirt the Indiana Open Door Law and trample its intent.

Gard's bill would do two things to control the practice:

1. Prohibit governing bodies of public agencies from conducting business through a series of meetings (while never allowing a quorum to be present) that close the door to effective public discussion.

2. Prohibit the same governing bodies from participating in public meetings by telephone or Internet connections unless the General Assembly has given specific permission. The bill does not prohibit individual conversations between two county commissioners or town board members. * * *

Gard's bill is scheduled for a hearing at 1:30 p.m. Wednesday in the Senate Governmental Affairs and Interstate Cooperation Committee, room 130 in the Statehouse.

The CourierPress adds:
Officials who defend the practice say it does not violate the state open door law because a quorum is never present. To the contrary, we believe such meetings are a clear violation of the spirit and the letter of Indiana law.

Though the practice may have gone on for years, it is still a relatively new term in the jargon of Hoosier government, politics and journalism. According to the Courier & Press archives, it was not used in this newspaper until 2002. In that case, the Evansville-Vanderburgh School Corp. superintendent met with School Board members, no more than two at a time, to discuss a reorganization of the administration.

One of the more interesting instances of serial meetings involved the Indiana University board of trustees a few years ago. The board met at the Bloomington home of then-IU President Myles Brand and, to avoid a five-member quorum, had one member go into the kitchen while the other four discussed the budget in the living room. Hoosiers learned about that sneaky tactic in a lawsuit against the university. * * *

Senate Bill 310 would prohibit governing bodies from conducting business behind closed doors in a series of meetings, while never allowing a quorum to be present. That's as simple and clear as could be.

In addition, the bill would prohibit members of boards from participating in public meetings by telephone or Internet connection, unless allowed by the Indiana General Assembly. * * *

To make it clear to one and all that Indiana boards will not meet in secret - however ingenious the attempt to circumvent the law - this measure should pass.

[More] Add an Indianapolis Star editorial today to the list. It concludes: "SB 310 is needed to clarify the intent of the law and end the games public officials have been playing with public access."

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to Indiana Law

Law - Feature today on Illinois U.S. Attorney Patrick J. Fitzgerald

The Washington Post today has a very long feature today on U.S. Attorney Patrick J. Fitzgerald, titled "The Prosecutor Never Rests: Whether Probing a Leak or Trying Terrorists, Patrick Fitzgerald Is Relentless." Currently:

Fitzgerald, 44, is the special prosecutor investigating the leak of covert CIA operative Valerie Plame's name to columnist Robert Novak. The gifted son of an Irish doorman makes no bones about challenging the establishment. His office is also prosecuting former Illinois governor George Ryan and loyal associates of Chicago Mayor Richard Daley on influence-peddling and corruption charges. * * *

Fitzgerald frequently makes crime-fighting headlines in Chicago, where he took over the U.S. attorney's office just 10 days before 9/11. What's surprising is that he got the job at all. A New Yorker born and bred, Fitzgerald knew hardly a soul in Chicago, which was precisely the idea. Sen. Peter Fitzgerald (no relation) was looking for an outsider to battle the state's notoriously corrupt political apparatus.

The recently retired Illinois Republican tells a story about back in Al Capone's day, when Col. Robert McCormick, the imperious publisher of the Chicago Tribune, called FBI Director J. Edgar Hoover and demanded that he send someone to Chicago who could not be bought. Hoover sent the untouchable Eliot Ness.

Now, as then, the U.S. attorney's job has the gloss of patronage. The late Chicago mayor Richard J. Daley used to say the U.S. attorney in Chicago is one of the three most important people in the state, and Peter Fitzgerald said he wanted "someone who couldn't be influenced either to prosecute someone unfairly or protect someone from being prosecuted unjustly."

So the senator, who as the state's senior Republican had the right to recommend a candidate to the White House, went to one of Hoover's successors for advice. "I called Louis Freeh and said, 'Who's the best assistant U.S. attorney you know of in the country?' He said, 'Patrick Fitzgerald in the Southern District of New York.' " The senator then called Mary Jo White, who ran the New York office. Same question. Same answer.

Posted by Marcia Oddi on Wednesday, February 02, 2005
Posted to General Law Related

Tuesday, February 01, 2005

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

The Governor's Executive Order - #05-10: Directive to establish medical error reporting and quality system (last mentioned in this entry from 1/30/05) came to mind as I read a front-page story today in the Wall St. Journal (paid subscription required) headlined "Some Push to Make Hospitals Disclose Rates of Infection: Aim Is to Empower Consumers, Spur Prevention, but Critics Cite Host of Complexities." Two brief quotes found in the story:

Laws requiring hospitals to compile and publish their infection rates have recently passed in Pennsylvania, Illinois, Florida and Mr. Wagner's state, Missouri. Momentum is building. Legislation has been introduced in more than a dozen states. "I think this will be universal before long," says Kenneth Kizer, president of the National Quality Forum, which pushes for the best treatment practices based on scientific evidence and analysis. He adds, "How can you argue against it?" * * *

"This is a much more complicated, technical issue than the average legislator or person understands," says Kathy Warye, executive director of the Association for Professionals in Infection Control and Epidemiology. She adds that "to have a different standard in every state would be very disadvantageous" for health-care professionals and consumers alike. To deal with some of these issues and avert a chaotic proliferation of definitions and rules, the CDC, Consumers Union, the American Hospital Association and other groups will meet in Atlanta next Monday to discuss a national approach. State officials are looking to the CDC, especially, for guidance. Since 1970 the Atlanta agency has collected confidential data from about 300 of the nation's 4,900 hospitals, in a monthly survey called the National Nosocomial Infections Surveillance system. ("Nosocomial" means acquired in a hospital.)

Posted by Marcia Oddi on Tuesday, February 01, 2005
Posted to Indiana Government

Env't. - Same sewer woes in Michigan

"Cleaner river may cost Niles heavy price" is the headline to this story today in the South Bend Tribune. Some quotes:

NILES -- It turns out the $1.2 million the city of Niles has spent the last four years separating storm and sanitary lines isn't enough to satisfy the Michigan Department of Environmental Quality. Not nearly enough.

Niles City Administrator Terry Eull said Monday the city is looking down the barrel of perhaps another $5 million to $10 million expenditure as it strives to meet the DEQ's demand of eliminating sewage discharges into the St. Joseph River.

Although those discharges are rare -- there have been just two combined sewer overflows in Niles the last two years -- Eull said the DEQ is adamant they must be eliminated. Doing so will be costly, he said, with customers of the Niles Utilities Department called upon to pick up the tab.

He said higher sewer rates would be necessary to pay off bonds that would likely be issued to pay off a treatment plant/collection system upgrade.

"I think we're talking millions of dollars here, not only for separation (of storm and sanitary sewer lines) out in the field but also to bring the (treatment) plant up to sufficient levels,'' he said. * * *

"The bottom line is, the DEQ says, 'No more overflows,''' Eull said. "But we don't want to spend a bunch of money and find out later it wasn't the best way to spend those limited resources.''

A major sewer project in Niles would follow on the heels of last year's $6 million water-system upgrade. Water rates will gradually rise to pay off the bonds, as will sewer rates should a major sewer project be necessary.

A 10 percent sewer rate increase enacted three months ago was intended merely to balance expenses in the sewer division. It marked the first sewer increase in Niles in about 10 years but more, it appears, are on the horizon.

Posted by Marcia Oddi on Tuesday, February 01, 2005
Posted to Environment

Ind. Decisions - No postings again today on the Indiana court site

The Court of Appeals site is still showing the decisions from last Friday, which is odd . . .

Generally the three Court sites are refreshed each day, and if there are no new opinions, this statement is posted: "No opinions have been posted to the website yet today." However, that did not occur either yesterday or today.

The few other times this has happened, the result has been a slew of backed-up cases, all finally posted at once.

Posted by Marcia Oddi on Tuesday, February 01, 2005
Posted to Indiana Decisions

Ind. Decisions - 7th Circuit posts four today

Hart, Genise v. Sheahan, Michael (ND Ill.)

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges. POSNER, Circuit Judge. This is an appeal from the dismissal, for failure to state a claim, of a suit by female inmates of the Cook County Jail in Chicago against the jail’s superintendent and the County. The plaintiffs are pretrial detainees who complain that the defendants, by gratuitously exposing them to dangerous and degrading conditions of confinement, are depriving them of their liberty without due process of law and thus violating the Fourteenth Amendment. They seek an injunction and damages. * * *

But in objecting to what the plaintiffs have done, the defendants overlook the procedural posture. This is an appeal from the grant of a motion to dismiss for failure to state a claim, a grant that is proper only if there is no state of facts consistent with the complaint that would entitle the plaintiffs to relief. In submitting the report of the grand jury investigation, the plaintiffs were merely indicating that, yes, there may well be facts they could prove that would show they had a claim. There was no impropriety, [citations omitted], and so there is no occasion for the imposition of sanctions.
REVERSED AND REMANDED.

USA v. Johnson, Willard L. (SD Ill.)
Before POSNER, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. Willard L. Johnson was convicted after a jury trial on four counts of distributing, and one count of possessing with intent to distribute, “cocaine base (commonly known as ‘crack’)” within 1,000 feet of a school, 21 U.S.C. §§ 841(a)(1), 860, and sentenced to concurrent 168-month terms of imprisonment. Johnson’s sole argument on appeal is that the district court erred in finding, for purposes of applying the sentencing guidelines, that the cocaine base he distributed was in crack form. Johnson concedes that he stipulated at trial that drug exhibits introduced by the government were crack, but he contends that the court should not have relied on the stipulation at sentencing without first specifically finding that it was knowing and voluntary. We affirm. * * *

Johnson has made no argument that his sentence implicates Blakely’s application to the sentencing guidelines. See United States v. Booker, No. 04-104, 2005 WL 50108 (U.S. Jan. 12, 2005); Blakely v. Washington, 124 S.Ct. 2531 (2004). * * *

USA v. Gant, A.J. (CD Ill.)
Before FLAUM, Chief Judge, and POSNER and SYKES, Circuit Judges.
FLAUM, Chief Judge. Following a two-day trial, a jury convicted defendant-appellant Alfred James Gant of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Gant was sentenced to 188 months’ imprisonment and four years of supervised release, and now appeals his conviction. For the reasons stated herein, we affirm. * * *
Sts Constantine & He v. City of New Berlin (ED Wis.)
Before POSNER, MANION, and EVANS, Circuit Judges.
POSNER, Circuit Judge. This is a suit by a Greek Orthodox church (we’ll call it the “Church”) against a small town in Wisconsin (officially a “City”) named New Berlin. There are additional parties on both sides, but there is no need to discuss them. The district court granted summary judgment for the defendants.

The suit is based on subsection (a)(1) of the cumbersomely titled Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc. That subsection forbids a government agency to “impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly or institution—(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc(a)(1). * * *

We held in Charles v. Verhagen, 348 F.3d 601, 610-11 (7th Cir. 2003), that RLUIPA is not unconstitutional on its face, that is, in all possible applications. The Sixth Circuit disagrees, and its case is now in the Supreme Court. Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003), cert. granted, 125 S. Ct. 308 (2004). No constitutional issue is raised in this appeal. * * *

We are sure that with the district judge’s help the parties can work out a deal that will lift a substantial burden from the Church’s shoulders without impairing any legitimate interest of the City.
REVERSED AND REMANDED, WITH DIRECTIONS.

Posted by Marcia Oddi on Tuesday, February 01, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on gaming panel resignations

When last we heard (see this entry from Saturday) only 3 of the 7 members of the Indiana Gaming Commission had agreed to resign, per Governor Daniels' request. Today Lesley Stedman Weidenbener of the Louisville Courier Journal reports:

INDIANAPOLIS -- A majority of the members of the Indiana Gaming Commission have offered their resignations, giving Gov. Mitch Daniels a greater degree of control over the development of a gambling boat in Orange County. * * *

Daniels, now in his fourth week in office, has expressed doubt about Trump's ability to handle the project. And he has asked Ernest Yelton, the commission's newly appointed executive director, to review the proposed deal.

But there are only limited circumstances -- essentially, if they fail to follow state law -- under which Daniels can remove commission members, who are charged with actually deciding which company develops the casino.

So the governor asked the commission's seven members -- along with the members of 16 other boards and commissions -- to offer their resignations. He has said the goal is ensure that members of boards share his vision for change.

Four members of the gaming commission, including Norman Melhiser of New Albany, complied. Three members had not responded by yesterday afternoon, according to the governor's office.

Daniels said Friday that he has not decided which resignations he'll accept. He has said that those who did not offer to resign will not be reappointed when their four-year terms end.

Two gaming commission members -- Thomas Milcarek of Michigan City and Maurice Ndukwu -- gave Daniels no choice. They submitted resignations effective immediately. Melhiser and Robert Barlow of Madison expressed a desire to remain on the commission. * * *

Daniels said he'll decide who stays and goes based on his "determination to see activities conducted with complete integrity." He said he has no specific timeline for filling vacancies. The commission, however, has business waiting. It is required by law to meet before the end of March and must have four members for a quorum.

Posted by Marcia Oddi on Tuesday, February 01, 2005
Posted to Indiana Government

Environment - More on local communities' sewer problems

Following up from the previous entry, this story yesterday from the Columbus Republic reported:

HAYDEN — The community of Hayden faces another setback in its quest for proper sewage treatment and clean ditches and back yards: potential sewer bills reaching close to $100. “It’s just one hurdle after another,” said Ed Whitaker, Jennings Northwest Regional Utilities (JNRU) Board member.

When the Indiana Department of Environmental Management cited Hayden for improper sewage treatment, the residents banded to create a plan. They would reluctantly hook onto a pump-and-line system, operated by JNRU, which presides over sewage treatment in an approximate 11-mile by 15-mile section of the county including Hayden. The impending sewer line will cost more than $2.7 million dollars to build, according to a study completed by Commonwealth Engineering, an Indianapolis firm. * * *

However, once the lines were completed and residents hooked up, their sewer bill would cost around $94 a month. “That doesn’t seem economically feasible,” said [Ed Tinkle of Commonwealth Engineering]. “Even if JNRU could shuffle some funds around and bring that price down, it would still have to be around $80 to $90 to keep things running. That’s ridiculously high.”

JNRU agrees. “We don’t want to force to make these people pay that kind of monthly rate,” said Whitaker. The state-recommended average is $65.

According to Tinkle, Hayden’s would be so high because of the four miles of lines required to move the sewage from the community to the plant and the low number of residents who would be hooked onto the system.

“There are only about 170 families out there,” said Dave Brinkman, a JNRU Board member. “That’s not enough flow.” * * *

“Somebody’s got to find a way to get that price down,” said Tinkle. “The state mandated it, and so the state should help out.” Tinkle suggested that commissioners and residents try contacting state legislators to plea for additional funding. “The agreed order signed between IDEM and Hayden does not allow for nothing to be done,” he said.

Here is the 8/19/04 Agreed Order between IDEM and the Respondent, identified as:
The Respondent is the Jennings Northwest Regional Utilities (“Respondent”). The unsewered, unincorporated Town of Hayden is located within Respondent’s service area at the intersection of Base Road and County Road 700 W in Jennings County, Indiana. The Jennings Northwest Regional Utilities' Master Plan includes the Town of Hayden within its 20 year planning area.
Finally, an interesting story yesterday from the Columbia City Post & Mail, headlined "State leadership change gets local projects moving ." Some quotes:
Friday's Columbia City Board of Works meeting was highlighted during departmental reports by outside operations manager Jeff Walker, who reported some hopeful news after he and mayor Jim Fleck met earlier in the week with representatives of the Indiana Department of Environmental Management.

With the change in state administration, new faces at IDEM could prove to smooth a previously rocky way for the city's water pollution control facility upgrade as well as the interceptor sewer project.

"I'm really pleased to say that the meeting was extremely productive and cordial," Walker said. "The responsiveness of that agency has changed overnight." Walker went on to say that IDEM officials have indicated they are ready to move forward with the two projects, both of which are mandated improvements. Both projects have been delayed anywhere from one month on the WPCF expansion to an unknown amount of time on the interceptor sewer installation.

The city has been ordered to perform sampling and flow monitoring tests of the sewer system before construction will be allowed to begin. A couple of other points between the agency and engineering firm Donohue & Associates will still need to be ironed out, but Walker seemed hopeful that the city's plans will be approved.

A director of the state revolving fund program was also present at the meeting and went over the loan process with Fleck and Walker. "He was very pleased to hear of our pro-active approach in both the plant expansion and the interceptor sewer," Walker said.

The SRF representative told them the financing of the interceptor sewer project would depend on data received from state officials. However, he assured the city the wastewater plant project would be funded through the SRF.

Another IDEM official who met with Fleck and Walker represented the Wet Weather section of the agency. "That gentleman is going to be in charge of our long-term control plan, that infamous document that (water pollution control superintendent) Howard (Lowen) and I have talked about for the last two years."

He explained that initially, the state is not content with the city's control plan, with approaches outlined failing to meet the intent of Environmental Protection Agency guidelines and IDEM requirements. "At this point, they're saying it will have to be amended, but they don't know to what extent," Walker said. The document should now be in review, with comments forthcoming in the next 30 days. The city can then work on amending the document to meet specifications.

"Bear in mind, that this is a document that's been sitting on their shelves for two years plus, as all the other communities have been," Walker said, but added that the new leadership is indicating they want to be responsible to move forward. "I think that is really good news for us," he said. "It really does help with our environmental impact as well."

Posted by Marcia Oddi on Tuesday, February 01, 2005
Posted to Environment

Environment - Bill offers shield from sewer penalties

"Bill offers shield from sewer penalties" is the headline to an AP story today by Rick Callahan. Some quotes:

INDIANAPOLIS -- Environmentalists told a Senate committee yesterday that they support legislation to protect Indiana's cities and towns from costly penalties as long as they are working to fix their overflow-prone sewers. * * *

In 102 Indiana cities and towns with so-called combined sewer systems, both sanitary waste and storm runoff are funneled into the same sewer lines. During rainy periods, those systems are overwhelmed and raw sewage must be dumped into waterways.

Legislation passed by the General Assembly in 2000 gave these communities temporary exemptions from water-quality standards to discharge sewage during and after storms if they have a state-approved plan for fixing their sewers.

The new bill addresses issues left unresolved by the original legislation, said its sponsor, Sen. Beverly Gard, R-Greenfield. A key aspect of that is protecting cities and towns from penalties that could sap their ability to continue their sewer upgrades.

"As long as they are following their long-term control plan, it protects them from enforcement actions," said Gard, the committee's chairwoman.

Eighty-five cities with combined sewer systems have submitted state-required plans to the Indiana Department of Environmental Management. To date, the agency has approved only Michigan City's plan, because the proposals are highly technical, said IDEM spokeswoman Bonnie Nash.

The bill is SB 620.

An interesting and somewhat related story was published yesterday by NewsLink Indiana, headlined "Elwood water bills could be on the rise." A quote:

ELWOOD, Ind. (NLI) - Price increases may be on the horizon for Elwood residents. The city incurred almost $170,000 in violation fines from the Indiana Department of Environmental Management for its water and sewage treatment. IDEM agreed to lower the fine to just a little more than $16,000 if Elwood Utilities improves and updates its facilities.
IDEM's settlement agreement with Elwood is not available. However, here is the Notice of Violation, from 12/20/02, that apparently led to the $170,000 penalty.

Posted by Marcia Oddi on Tuesday, February 01, 2005
Posted to Environment

Ind. Gov't. - More on telecommunications - now a two-front story

Three earlier ILB entries (1/24/05, 1/25/05 and 1/27/05) have detailed local government concerns about HB 1148. Today the Indianapolis Star has a front-page, above-the-fold story on the proposal, headlined "Legislation would put the brakes on city-backed high-speed Internet," by business reporter Theodore Kim. Some quotes:

Cities across Indiana are fighting legislation that would thwart their efforts to offer public Internet and other data services. The proposal, House Bill 1148, aims to rein in the growing number of cities and towns seeking to build and offer data networks to businesses and residents. Telecommunications companies, led in Indiana by SBC Communications, say the legislation would safeguard taxpayer money and fair competition.

Communities and national consumer rights advocates are crying foul. They argue companies have little incentive to offer service in smaller or more remote towns, so the change could leave some people with no high-speed Internet access. * * *

While the bill has received little public attention [sic.], it could have broad ramifications for consumers. Critics say the bill would solidify SBC's Indiana dominance and virtually eliminate the only real option that some rural towns have to move beyond sluggish, dial-up access to the Internet.

"If people don't have these services, then these communities fall behind economically," said Bunnie Riedel, a Maryland-based consultant who often represents municipalities on cable and telecom issues. Access over phone lines can be numbingly slow to transmit images, video and massive amounts of data that high-speed systems move with ease. "It's not just about getting on the Internet," Riedel said. "It is: Can I survive economically?"

The issue extends far beyond Indiana as communities large and small across the nation seek to retain local businesses and contemplate the best way to provide at least some high-speed service. Indiana is one of more than a dozen states around the nation contemplating similar legislation. * * *

Some communities have subsidized startup costs with public money. In the case of Scottsburg, population 6,000, any high-speed Internet equipment was years away from being installed. Scottsburg Mayor Bill Graham said no private company had expressed interest. So Scottsburg installed its own wireless high-speed network for about $300,000. About 600 people have signed up for the service. Their fees will help pay for installation, operations and maintenance of the network.

Other jurisdictions have set up their own networks in an effort to retain more control. Business and city leaders in South Bend, for instance, have set up a nonprofit firm to build and operate a fiber-optic network -- one that they say offers better and cheaper service than SBC, the area's main provider. The nonprofit coalition includes the University of Notre Dame. "We need the system to be superior so that businesses will want to come to South Bend," said Gary Gilot, South Bend's director of public works.

Larger cities, including Philadelphia*, have moved forward with ambitious plans to provide some free wireless Internet access. Indianapolis is considering offering wireless Internet hubs in some public areas, though the services would be offered by a private company.

"Why should cities do this?" said Mark Cooper, director for the Consumer Federation of America in Washington. "Well, these are the highways of the 21st century."

*The mention above of Philadelphia is interesting. As reported in this December 3, 2004 Indiana Law Blog entry titled "Different models for city-wide internet service" (quoting from a NY Times story of that date): "In a victory for Verizon Communications, a measure in a new Pennsylvania law will make it harder for cities to build high-speed Internet networks that compete with major telecommunications providers."

Accompanying Kim's story is a second story with even more prominent placement, headlined "SBC wants off regulatory hook: Company seeking to set its own rates; critics warn higher phone bills possible" by Michele McNeil. The proposal is HB 1518. The story begins:

Telephone giant SBC launched its fight to change state law so it can set its own prices for local service in what critics are saying is the single biggest effort to deregulate an industry in Indiana and one that could lead to higher phone bills.

Telecommunication executives said Monday this legislation to strip state regulators of many of their powers is crucial to keeping up with rapidly changing technology, providing better service to customers and bringing more jobs to Indiana.

However, citizens groups warn that, if House Bill 1518 becomes law, Hoosiers will see their phone bills go up and service levels wane. Worse, they warn, rural customers who are expensive to serve might see their phone choices evaporate.

With Republicans controlling the governor's office and both chambers of the General Assembly, the Statehouse is a business-friendly place. Monday, a powerful coalition of telephone companies, big business and labor groups touted the bill's benefits.

Jennifer Whitson of the Evansville Courier& Press also reports on this topic today, in a story headlined "State phone deregulation in the works." Some quotes:
INDIANAPOLIS - Large phone companies that were once the state's sole service providers are asking lawmakers to deregulate their field completely, arguing they shouldn't face regulation while competitors operate without it.

But consumer groups and some competitors are lining up against the push. Without oversight, they say, SBC and other large providers could drive out competition and phone rates could skyrocket.

In Evansville, two companies - Insight Communications and Sigecom - offer Internet, cable and phone services. Those are not regulated by the Indiana Regulatory Commission.

"SBC is a very large company," said Bruce Jones, Sigecom's president and general manager. "It is entirely possible for them to go into a market like Evansville and price below cost and drive the competition right out of business because they can subsidize that with revenues from other markets," he said.
* * *

SBC Indiana President George Fleetwood said that under the free market, SBC and Verizon would pour money into the state to build up their phone and broadband capabilities.

"I think that House Bill 1518 could lead to great investment in the state of Indiana," Fleetwood said. But others argued that without controls, the incumbent phone companies could charge so little in urban areas as to drive out the competition. Then they would be free to charge high rates because consumers would have no options.

Rep. Dave Crooks, D-Washington, said he fears that without regulation, companies will all move to compete in the urban areas, leaving rural portions of the state without broadband deployment or even adequate phone service. "We're still waiting for competition now," Crooks said. "This bill is not in (rural residents) interest."

The House Technology, Research and Development Committee will hold a hearing on House Bill 1518 on Wednesday at 10:30 a.m., but Murphy said the committee, which he leads, would not vote on the measure that day. Other telecommunications bills:

  • The Senate Economic Development and Technology Committee passed Senate Bill 381, which would require the state to further develop its current broadband network and allow access points statewide at a low cost.
  • House Bill 1148, which hasn't yet received a hearing, would increase the steps a local government unit would have to take before it could move forward to build broadband or cable services locally.

Posted by Marcia Oddi on Tuesday, February 01, 2005
Posted to Indiana Government

Ind. Courts - Judges' pay bill advances

Yesterday the ILB posted an entry titled "Uncoupling judges' pay raises from legislators'," quoting from a Fort Wayne Journal Gazette. That entry was about a Senate judges' pay bill, SB 363.

A story by today by Mary Beth Schneider in the Indianapolis Star reports that a House pay bill, HB 1777, has advanced:

Indiana judges and prosecutors would get significant pay increases -- their first since 1997 -- under a bill approved Monday by a House committee. The House Judiciary Committee voted 11-1 to send the bill to the full House for debate. The raises range from 25 percent for Supreme Court justices to 35 percent for prosecutors, trial court judges and magistrates.

Supreme Court Chief Justice Randall T. Shepard urged lawmakers Monday to pass the raises, saying: "There is nothing in this bill except catching up."

Attempts to raise the pay in the past have been vetoed because of the state's fiscal problems or have died after they were linked with more controversial pay increases for legislators.

Rep. Ralph Foley, R-Martinsville, who authored the bill, acknowledged Indiana is in tough fiscal times but said the money would add to the state's general fund. The raises would be paid for by a $19 increase in court fees. That would raise almost $372,000 more than is needed for the raises, which amount to more than $20.5 million annually.

Under House Bill 1777, Supreme Court judges would see their pay rise to $143,195 annually from $115,000; appeals court judges would be paid $139,951, up from $110,000; and county trial court judges and full-time county prosecutors would be paid $121,122, up from $90,000.

Posted by Marcia Oddi on Tuesday, February 01, 2005
Posted to Indiana Courts

Ind. Courts - More on proposed Marion County Superior Court changes

Saturday the ILB posted an entry titled "Proposal to make Marion County judges elected rather than appointed," based on an Indianapolis Star story on House Bill 1703.

Today's Star has an editorial headlined "Take another path to court reform." Some quotes:

Our position is: Legislation that would reform Marion County Superior Court has too many flaws.

State Rep. Mike Murphy's plan for reforming the Marion County Superior Court may not be an attempt to protect the Republican Party's narrow majority on the bench. * * *

[But the] legislation instead would ensure partisanship by requiring that chairmen from the county's two major parties sit on the five-person selection committee. Because two of the three lawyers filling the remaining seats would be selected by the governor from within his own party, there's little chance that a well-qualified candidate from the minority party would get serious consideration.

With neither the local nor state bar nor the chief justice of the Supreme Court given a place on the committee, there is no way to ensure the selection of qualified candidates.

Considering that Murphy's party now controls the governor's office -- and lost its long stranglehold over three Marion County offices last year -- it's hard not to wonder about the timing, if not the merits, of his proposal. Even more concerns, especially about judicial independence, are raised because the law requires all 32 judges to reapply for their jobs instead of being grandfathered onto the bench.

Switching from electing judges to merit selection is a good idea. The devil, however, is in the details. And HB 1703 has too many devils in its details to warrant the General Assembly's approval.

Posted by Marcia Oddi on Tuesday, February 01, 2005
Posted to Indiana Courts

Ind. Courts - Wayne Co. judge can't retire yet

"Wayne Co. judge can't retire yet: 'My Man Mitch' needs to replace him first" was the title to a column yesterday by Richmond police and courts reporter Don Fasnacht in the Richmond Palladium-Item. Here are some quotes:

It's the responsibility of the governor to fill any vacancies that occur in county courts in Indiana. It's in the state constitution. But the process can be a little cumbersome and a little confusing, particularly when the governor is new.

Wayne Circuit Court Judge Douglas VanMiddlesworth expected to begin his retirement after 20 years on the bench Tuesday. But so far there's no one to replace him, so he'll be staying around to fill in until someone is found. At this point, no one seems completely clear about how to apply for the job.

Wayne County isn't the only place up in the air about finding a new judge. Clay County hasn't had a Circuit Court judge since Gov. Mitch Daniels was inaugurated. Judge Ernie Yelton stepped down to accept a position in Daniels' administration.

The Indiana Supreme Court has been providing a judge pro-tem week-by-week until a new judge is appointed there, but Friday said, "As of 15 minutes ago, we don't know who will preside Monday," Clay County court stenographer Rita Higginbottom said Friday.

The Brazil Times had a story Friday that Daniels' general counsel Steve Schultz would be assembling a list of potential candidates for that job and reviewing their credentials. Press Secretary Jane Jankowski said, "The governor will move quickly now, but there's no definitive time frame." * * *

In Marion County, the Republican party took the initiative to send a list of five candidates to the governor for consideration.

VanMiddlesworth waited to submit his resignation until a Republican governor took office, but he had alerted Daniels ahead of time that he planned to step down. VanMiddlesworth was last elected in 2002. He would have had four more years to serve if he hadn't decided to retire. His replacement will serve two years until the next countywide general election, then have to decide about going running for the office.

Posted by Marcia Oddi on Tuesday, February 01, 2005
Posted to Indiana Courts