« February 2005 | Main | April 2005 »

Thursday, March 31, 2005

Ind. Law - Does Anyone Really Know What Time It Is?

"Does Anyone Really Know What Time It Is?" is the headline to a book review today in the Wall Street Journal (paid subscription). The book? Titled Spring Forward, written by Michael Downing. A sample:

Indifferent to the arguments of the daylight-mad Chambers of Commerce, cows proved unwilling to adjust their milking habits to the new time. Nevertheless, President Wilson smugly lectured husbandmen that the farmer's "life and methods are more easily adjusted, I venture to think, than are those of the manufacturer and the merchant."

Illinois Rep. Edward King charged that DST benefited "the pleasure-seekers, the swivel-chair ornaments, and the golf players" by giving them an extra hour of daylight for their decadent recreations. Critics referred to DST as "golf time." And indeed, Daylight Saving was a tremendous boon to golf, as duffers might stride the links till 9:30 of a summer night. President Wilson was "a genuinely fanatic golfer," but he hid the niblick under his hairshirt, emphasizing sacrifice rather than pleasure.

Farmers demanded, and got, DST repealed after the war [WW I]. The battle over time shifted to the states and cities, with the populated East the stronghold of the time-shifters. In one act of chrono-tyranny, Connecticut made it illegal to display the wrong time on a wristwatch.

Posted by Marcia Oddi on Thursday, March 31, 2005
Posted to Indiana Law

Ind. Decisions - Court of Appeals posts eight today; Tax Court posts one

Grant F. Shipley v. KeyBank National Association (3/31/05 IndCtApp) [Procedure]
Sharpnack, Judge

In this interlocutory appeal, Grant F. Shipley appeals a portion of the trial court’s order, which granted him summary judgment on one of the issues he raised and ordered him to return approximately $70,000 in attorney fees that he previously had received as the attorney for a former receivership to the receivership estate that is pending in another county court for distribution by that court. Shipley also appeals the trial court’s denial of his Ind. Trial Rule 60 motion to correct a clerical mistake in the dating of the summary judgment order, which had been issued nunc pro tunc. Shipley raises four issues, which we consolidate and restate as:
Whether the trial court erred by granting Shipley’s motion for summary judgment on the issue of repayment of fees earned as attorney for a former receivership and by ordering Shipley to return the fees to the receivership pending in the Huntington Circuit Court; and Whether the special judge abused his discretion by concluding that the trial court’s written summary judgment order was properly entered as a nunc pro tunc order. We affirm * * *
BAKER, J. and FRIEDLANDER, J. concur
Dorsey L. Mathews v. State of Indiana (3/31/05 IndCtApp) [Criminal Law & Procedure]
Najam, Judge
* * * We conclude that the murder instruction does not constitute fundamental error. We further conclude that none of Mathews’ convictions violate double jeopardy except for Count IX, which we order the trial court to vacate. In addition, the consecutive sentence limitation was not violated in this case. Accordingly, we reverse and remand for the trial court to impose a sentence of 125 years. Mathews’ sentence is not otherwise inappropriate under Indiana Appellate Rule 7(B). Affirmed in part, and reversed and remanded in part.
KIRSCH, C.J., and VAIDIK, J., concur
Michael Morrison v. State of Indiana (3/31/05 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge
Appellant-Defendant Michael Morrison (“Morrison”) appeals his convictions for two counts of attempted criminal deviate conduct as Class B felonies and two counts of sexual battery as Class D felonies. Morrison also challenges his executed fifteen-year sentence in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), reh’g denied . We affirm in part and remand for vacation of two convictions. * * *

Here, the trial court sentenced Morrison to an enhanced term of fifteen years for his attempted criminal deviate conduct as a Class B felony conviction and to an enhanced term of three years for his sexual battery as a Class D felony conviction, and ordered that the sentences be served consecutively. In so doing, the trial court found one aggravating circumstance—i.e., White’s mental handicap—and one mitigating circumstance—Morrison’s lack of criminal history. Morrison maintains that his enhanced sentence was improper because it is based upon White’s mental handicap, which was a fact not determined by the jury or admitted by Morrison. We disagree. * * *

Yet, because the jury found Morrison guilty of Counts II and IV, which required proof of White’s mental incapacity, the jury necessarily determined, beyond a reasonable doubt, that Morrison committed the offenses against White, i.e., a person with limited mental capacity. Because the jury found, beyond a reasonable doubt, that White was “so mentally disabled or deficient that consent to the touching [could not] be given,” its verdict alone allowed for the enhanced punishment. Appellant’s App. at 102; see also Powell v. State, 751 N.E.2d 311, 317 (Ind. Ct. App. 2001) (holding that an enhanced sentence will be affirmed if it is supported by a legitimate aggravator). As such, Morrison has failed to show that the trial court violated his Sixth Amendment right to have a jury determine his sentence.

For the foregoing reasons, we affirm Morrison’s convictions for Count I, attempted criminal deviate conduct, and Count III, sexual battery, as well as his executed fifteen-year sentence. We remand to the trial court with instructions to vacate Morrison’s convictions for Count II, attempted criminal deviate conduct, and Count IV, sexual battery. Affirmed in part and remanded in part.
SULLIVAN, J., and MATHIAS, J., concur


Geri Wheatcraft v. Charles Wheatcraft
[Family Law]
Najam, Judge
Geri Wheatcraft (“Wife”) appeals from three of the trial court’s orders in this dissolution proceeding. Wife presents the following issues for our review: [1] Whether the trial court abused its discretion when it denied Wife’s motion to set aside the dissolution decree under Indiana Trial Rule 60(B). [2] Whether the trial court abused its discretion when it denied Wife’s motion for discovery under Indiana Trial Rule 60(D). [3] Whether the trial court abused its discretion when it granted Charles Wheatcraft’s (“Husband’s”) petition for attorney’s fees. * * *
Affirmed.
KIRSCH, C.J., and VAIDIK, J., concur
Joseph D. Caron v. State of Indiana (3/31/05 IndCtApp) [Criminal Law & Procedure]
Friedlander, Judge
* * * As we have noted on a number of occasions, a single valid aggravating circumstance may be sufficient to sustain an enhanced sentence. See, e.g., Teeters v. State, 817 N.E.2d 275. Moreover, when the trial court improperly applies aggravating circumstances but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. See Bacher v. State, 722 N.E.2d 799 (Ind. 2000). The five aggravating circumstances previously sustained adequately support the five-year enhancement of Caron’s sentence, and we can say with confidence that the enhanced sentence is appropriate without considering the validity of the two remaining aggravating circumstances. See Witmer v. State, 800 N.E.2d 571 (Ind. 2003). Judgment affirmed in part and reversed in part.
SHARPNACK, J., and BAKER, J., concur
Manous, LLC, et al. v. Pauline Manousogianakis (3/31/05 IndCtApp) [Worker's Comp]
Najam, Judge
Manous, LLC (“Manous”) appeals the decision of the Worker’s Compensation Board of Indiana (the “Board”) awarding benefits to the family of an employee who was murdered while at his place of employment. Manous presents the following issues for our review: [1] Whether the positional risk doctrine applies when an employee is murdered at his workplace without explanation. [2] Whether sufficient evidence exists to support the Board’s finding that Christos Manousogianakis’s (“Christos”) dependents are entitled to worker’s compensation benefits.

Christos’s wife, Pauline Manousogianakis (“Manousogianakis”) cross-appeals, seeking appellate attorney’s fees and a ten percent increase in the worker’s compensation award. We affirm and remand. * * *

Conclusion. In sum, Manousogianakis demonstrated that Christos’s unexplained murder occurred in the course of his employment. Under the positional risk doctrine, there was a presumption that Christos’s death arose out of his employment, which Manous failed to rebut. Thus, the Board did not err when it determined that Manousogianakis was entitled to worker’s compensation benefits. We also conclude that Manousogianakis is not entitled to appellate attorney’s fees. Because we are affirming the full Board’s decision on appeal, however, Manousogianakis is entitled to a five percent increase in her award pursuant to Indiana Code Section 22-3-4-8(f). We remand this case to the Board for further proceedings consistent with this opinion. Affirmed and remanded.
KIRSCH, C.J., and VAIDIK, J., concur


Save the Valley, Inc., et al. v. Indiana-Kentucky Electric Corporation and IDEM
(3/31/05 IndCtApp) [Procedure]
Barnes, Judge
We grant the Appellees’ petitions for rehearing; however, we affirm our opinion in all regards. We issue this opinion on rehearing to address an argument raised by IKEC for the first time in its petition for rehearing and to clarify the issue of the trial court’s subject matter jurisdiction. * * *
NAJAM, J., and SULLIVAN, J., concur

Mandy Bowles v. General Electric Company
(3/31/05 IndCtApp) [Worker's Comp]
Friedlander, Judge
On April 3, 2002, Mandy Bowles filed an application for adjustment of claim with the Indiana Worker’s Compensation Board claiming permanent disablement from injuries suffered while working for General Electric (GE). GE moved to dismiss Bowles’s claim for lack of jurisdiction pursuant to Ind. Code Ann. § 22-3-3-3 (West 1998). A single hearing member of the Board granted GE’s motion to dismiss, and Bowles filed for review. After a hearing, the full Board affirmed the single hearing member’s decision. On appeal, Bowles raises two issues that we consolidate for review: Is her claim time-barred? We affirm. * * *
SHARPNACK, J., and BAKER, J., concur

Thomas R. Galligan v. Indiana Department of State Revenue
(3/30/05 IndTaxCt) [Sales & Use Tax]
Fisher, Judge
homas R. Galligan (Galligan) appeals the final determination of the Indiana Department of State Revenue (Department) which assessed him with the unpaid sales and use tax liabilities of Irish Park, Inc. (IP) for the 1993, 1994, and 1995 tax years (years at issue). The case is before the Court on the following issues: [1] Whether collecting IP’s tax liabilities from Galligan for the years at issue violates his right to due process; and [1] Whether the Department has erred in imposing sales and/or use tax on certain IP transactions? * * *

Based on the foregoing reasons, this Court finds that Galligan is not liable for IP’s 1993 tax liabilities. Galligan can be held liable, however, for IP’s unpaid sales/use taxes for the 1994 and 1995 years. Nevertheless, Galligan has presented prima facie evidence that the Department’s assessments as discussed in Issues II(A), II(B), II(C), and II(D)(2),(3),(4),(5), and (6) were in error. Consequently, those audit findings are REVERSED and the Court REMANDS those matters to the Department to recalculate the amount of tax due. The Department’s assessments as discussed in Issues II(D)(1), II(E), and II(F) are AFFIRMED.

Posted by Marcia Oddi on Thursday, March 31, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts two today

In the Matter of Patrick S. Ryan (3/31/05 IndSCt) [Disciplinary Proceeding]
Per Curiam

Today, we find that the respondent, Patrick S. Ryan, violated Ind. Professional Conduct Rule 1.7(b) by operating a business that obtained international driver’s licenses for individuals charged in the Goshen City Court with driving license offenses, while at the same time serving as a part-time deputy prosecutor in that court. For his misconduct, we further find that respondent should be suspended from the practice of law for nine (9) months.

The following facts are admitted. At all relevant times respondent was a part-time deputy prosecutor in Elkhart County assigned to the Goshen City court. Respondent observed that many Latino motorists were being charged in the Goshen City court with driving without licenses (a class C misdemeanor) or without a license in possession (a class C infraction). As a general practice, the court permitted the state to reduce the original charge to a lesser charge or an ordinance violation, if the defendant provided proof of obtaining a valid license.

Respondent, along with his wife, started a business venture, Legal Licensing Limited (LLL), aimed at obtaining “international driver’s licenses” for individuals at a cost of $275. His wife was LLL’s only employee, with an office in the respondent’s law office. Respondent enlisted the city court’s interpreter to recruit (for $20 each) customers for the new business. * * *

Though respondent has admitted his violation, in an attachment to his affidavit of consent to discipline he demonstrates his failure to grasp the magnitude of his misconduct. The attachment speaks to the validity of international driver’s licenses and the propriety of accepting them in reaching a plea agreement with defendants in the court he served. Respondent does not seem to recognize the inappropriateness of prosecuting defendants and simultaneously providing a business service to them designed to obtain a favorable result in the prosecution.

In light of the above considerations, we conclude that the respondent should be suspended from the practice of law for nine months. It is therefore, ordered that respondent, Patrick S. Ryan, is hereby suspended from the practice of law for a period of not less than nine (9) months commencing May 8, 2005, and at the conclusion of which the respondent may petition this Court for reinstatement to the practice of law. In addition to the requirements set forth in Ind. Admission and Discipline Rule 23, Section 4, the respondent will also be required to demonstrate as a condition of reinstatement that he understands the seriousness of his malfeasance and that he is fit to return to the practice of law. Costs of this proceeding are assessed against the respondent.


Associated Medical Networks, LTD v. Dr. William R. Lewis
(3/32/05 IndSCt) [Procedure]
Dickson, Justice
This appeal challenges the trial court's determination that the predominance and superiority requirements of Indiana Trial Rule 23(B)(3) were satisfied for purposes of maintaining a class action. Concluding that predominance was not established, we reverse the class certification.

The plaintiffs, Dr. William R. Lewis, Dr. Darryl Fortson, and Wabash Avenue Medical Center (collectively, "the Providers"), brought this action to compel the defendants, Associated Medical Networks, Ltd., Associated Insurance Companies, Inc., and Anthem Health Systems, Inc. (collectively, "Anthem"), for payment of medical expenses under assignments executed by patients, and for certification as a class to proceed on behalf of all other similarly situated health care providers. * * *

A class certification based upon T.R. 23(B)(3) requires compliance with both the predominance and the superiority requirements. Because we conclude that the Providers failed to satisfy the predominance requirement, the class certification fails, and we need not separately address whether the superiority requirement was satisfied.

Conclusion. The trial court's Order Certifying Plaintiff Class is reversed, and this cause is remanded for further proceedings.

Shepard, C.J., and Sullivan and Rucker, JJ., concur. Boehm, J., not participating.

Posted by Marcia Oddi on Thursday, March 31, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Indiana Supreme Court will convene at college

"Indiana Supreme Court will convene at college" is the headline to a story today by Beth Shindle in the Huntington Herald-Press. Some quotes:

Four of the five justices of the Indiana Supreme Court will be at Huntington College next Wednesday to hear oral arguments in a case that examines spousal privilege in a criminal case. * * *

Due to scheduling conflicts, Chief Justice Randall Shepherd will not be present at the event. The public is welcome to attend.

Huntington County Prosecutor John Branham, who teaches the American national government and American constitutional history classes at HC, arranged for the justices to come to Huntington. The Indiana Supreme Court chooses to hear a few cases each year at locations across the state, primarily for public relations and educationally related reasons.

Branham said the event will be a "field learning experience" for his college students and would include students from Huntington North High School if they were not already scheduled for spring break next week. He also said this is the first in recent years that the Supreme Court has come to the Huntington area. The District Court of Appeals was at the college Sept. 27, 1995.

The case that will come before the Supreme Court Wednesday is John Glover v. State [access ILB entry on 11/5/04 Court of Appeals decision here, fifth case]. The state has charged Glover with murder and listed his wife, Bobbie Glover, as a state's witness on the charging information.

Glover wanted to suppress his wife's testimony and felt he could do so according to a spousal privilege code identified in Indiana state law. However, the first place he took the case, the Marion County Supreme Court, said that Glover could not suppress his wife's testimony because the marriage was a "sham marriage" that took place under Kentucky law, Branham said, for the purpose of preventing her from being deported to her native country of India. * * *

After the Marion County Superior Court denied John Glover's motion, he took the case to the Indiana Court of Appeals, and the court said the privilege should apply, Branham said. The state then filed a petition to transfer the case to the Indiana Supreme Court, and the court decided to accept the case.

"It will be a matter not so much of fact but of law and public policy," Branham said.

The issue of Glover's motion to suppress his wife's testimony must be decided before his trial can be held.

Here is a link to the Supreme Court's April 2005 calendar of oral arguments. On Thursday, April 7th the Court will hear an interesting issue of standing under the Administrative Orders and Procedures Act. The case is Indiana Assoc. of Beverage Retailers v. Indiana Alcohol and Tobacco Comm’n [access ILB entry on 5/25/04 Court of Appeals ruling here, last case].

On Thursday, April 14 the Court will hear Michael Armstrong v. State. There have been several ILB entries on this case, where the issue was "When a passenger jumped from defendant Armstrong's moving vehicle and was injured as a result, was Armstrong involved in an accident for purposes of IC 9-26-1-1, triggering the duties under that statute?" Access them at 11/23/04 (2nd case); 11/24/04; and 3/2/05.

And on Tuesday, April 19, the Court will hear arguments in Lacey v. State, an unpublished Court of Appeals decision.

Posted by Marcia Oddi on Thursday, March 31, 2005
Posted to Indiana Courts

Ind. Decisions - 7th Circuit posts two today

Sveum, Michael A. v. Smith, Judy P. (WD Wis.) [2 pp.]

[Per curiam denial of request for leave to proceed in forma pauperis on appeal]

USA v. Funds Amount $30,670 (ND Ill.) [39 pp.]

Before POSNER, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Two Drug Enforcement Administration (“DEA”) agents encountered Antonio Calhoun at Chicago’s Midway Airport as he attempted to board a flight destined for Phoenix. The agents confiscated $30,670 in cash that Calhoun was carrying, and a drug detection dog later alerted to the currency, indicating the presence of narcotics. The United States filed a civil forfeiture action with regard to the cash, and the district court granted summary judgment in the government’s favor. Calhoun appeals the judgment and, moreover, asks that we sua sponte grant summary judgment in his favor. We decline Calhoun’s request and affirm the judgment of the district court.

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

Law - Federal Judge Condemns Intervention in Schiavo Case

There have been a number of reports today on Judge Birch's concurring opinion yesterday (3/30/05) in the 11th Circuit's denial of the emergency petition for rehearing in banc in the Terri Schiavo case. Here is the ruling in Schiavo v. Schiavo. Judge Birch's concurring opinion is found at page 3-30 of the 30-page document.

Here is the NY Times coverage today of the ruling. Some quotes:

The 11th Circuit court's decision, signed by Chief Judge J. L. Edmondson, was only a sentence long. But in a concurring opinion, Judge Stanley F. Birch Jr., appointed by the first President Bush in 1990, wrote that federal courts had no jurisdiction in the case and that the law enacted by Congress and President Bush allowing the Schindlers to seek a federal court review was unconstitutional.

"When the fervor of political passions moves the executive and legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene," wrote Judge Birch, who has a reputation as consistently conservative. "If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow."

Judge Birch said he had not had time before now to consider the constitutionality of the law, which Congress passed and Mr. Bush signed before dawn March 21, because of "the rapid developments and sensitivities in this case." The 11th Circuit court considered and rejected several appeals from the Schindlers last week after Judge James D. Whittemore of Federal District Court in Tampa denied their motions.

In particular, Judge Birch wrote, a provision of the new law requiring a fresh federal review of all the evidence presented in the case made it unconstitutional. Because that provision constitutes "legislative dictation of how a federal court should exercise its judicial functions," he wrote, it "invades the province of the judiciary and violates the separation of powers principle."

David J. Garrow, a legal historian at Emory University who closely follows the 11th Circuit, said Judge Birch's opinion was striking because the judge was a conservative Republican, especially regarding social issues. Judge Birch wrote the ruling for a three-judge panel of the court last year unanimously upholding a Florida law that prohibits gay men and lesbians from adopting children.

"This is a Republican judge going out of his way to directly criticize the Congress and President Bush for what they've done," Mr. Garrow said.

Erwin Chemerinsky, a law professor at Duke University, said Judge Birch probably felt it important to address the constitutionality of the law because the opportunity might never arise again.

"When Terri Schiavo dies, this law expires because it was only about her," Mr. Chemerinsky said. "This raised an important constitutional issue that could come up again, and he's saying it's important that some judge be on the record about it."

Posted by Marcia Oddi on Thursday, March 31, 2005
Posted to General Law Related

Ind. Law - Evidence management varies

"Evidence management varies: Small towns often lack secure facilities for spoils of crime" is the headline to a story today in the South Bend Tribune by Laura Steele. Some quotes from the beginning of the piece:

Not all small police agencies have the means to properly safeguard seized evidence, local town marshals say.

Although some departments call their evidence management capabilities state-of-the-art, most agree they are only "sufficiently adequate."

That gap exists, they say, because although state law mandates all seized evidence to be "securely held" during an investigation, it does not outline an exact procedure as to how to do that.

The issue has arisen after last week's arrest of Roseland Town Marshal D. Michael Swanson, who police say stole confiscated drug money stored in the town's safe.

Scott Mellinger, executive director of the Indiana Law Enforcement Academy, said town marshals are trained to handle evidence in the same way as officers from larger departments.

"We talk about the chain of custody and the necessity to document who might have been in possession of evidence," Mellinger said. Marshals are then encouraged to implement a written evidence policy for their department, either with a template or on their own.

"But what happens too many times is a smaller agency head will make the assumption that it won't happen here," he said.

Posted by Marcia Oddi on Thursday, March 31, 2005
Posted to Indiana Law

Wednesday, March 30, 2005

Law - NY's top court rules telecommuter must pay taxes

An AP story today reports:

ALBANY, N.Y. -- A telecommuter who lives out of state while working by computer for a New York employer must pay New York tax on his full income, the state's highest court ruled Tuesday in a case that could have wide implications in the growing practice.

The Court of Appeals said that computer programmer Thomas Huckaby who lives in Nashville, Tenn., owed New York income tax for his full salary, not just the time he spent working at his employer's New York offices.

Huckaby paid tax on about 25 percent of his income over two years for the time he spent working in New York state. But the court upheld a state tax department ruling that all his income should be taxed. That amounts to $4,387 plus interest. However, the ruling could lead to much greater income for the state as it is applied to the growing field of telecommuting. * * *

"New York provides the job, New York provides the professional opportunity, and New York should be able to tax that income, even if the employee for his own convenience was working outside of New York state," said Marc Violette, spokesman for state Assistant Solicitor General Julie Mereson, who won the case.

The case is Huckaby v. NY State Div. of Tax Appeals (3/29/05). Access it here.

Slashdot.com readers have some interesting comments on this ruling. This story in Computerworld notes that Huckaby's home state, Tennessee, doesn't have an income tax. I wonder if the ruling would be different if it did? And I wonder if this ruling might be expanded to county taxes in some circumstances?

Posted by Marcia Oddi on Wednesday, March 30, 2005
Posted to General Law Related

Ind. Law - [Updated] Status of daylight savings time bill

Here is the webpage for Senate Bill 127, the reported site for the revived time bill. However, there is no sign yet. The first sign would be listed under "House Committee Reprts." However, the page shows no "filed" reports yet, much less "adopted" House Committee Reports.

As Martin DeAgostino reports today in the South Bend Tribune

INDIANAPOLIS -- House lawmakers will use a Goshen senator's bill on freeway speed limits to revive Gov. Mitch Daniels' efforts to institute daylight-saving time. The bill swap will occur today in a House committee, with written approval from Sen. Marvin Riegsecker, R-Goshen.

Riegsecker said the Senate Republican caucus also has approved the swap, which will ensure that Senate Bill 127 has just one topic: daylight-saving time. That is crucial for Senate consideration of the unique subject, as Senate rules do not allow a mix of dissimilar subjects in the same bill.

"All along, I've supported the daylight-saving time issue," Riegsecker said. "That's not new. I feel the issue probably does deserve a vote." Riegsecker agreed to the swap Monday afternoon, before a phone call from Daniels asking him to do so. "I'm not sure who put the finger on that (speed limit) bill," Riegsecker said Tuesday. But he did note that another pending bill on speed limits can readily absorb his bill. * * *

As for Riegsecker's speed-limit bill, the language will move to Senate Bill 217, which raises speed limits on all rural interstates. Riegsecker's bill would boost speed limits from 55 mph to 65 mph on all Indiana freeways, which include the U.S. 20 bypass in Elkhart and St. Joseph counties.

[Update] A 5:24PM update in the Star reports:
Hoosiers would change their clocks on June 5 in observance of Daylight Saving Time under legislation approved today by a House committee.

Senate Bill 127, which is no longer a bill about raising speed limits, could be voted on by the full House as early as Tuesday.

The House Public Policy and Veterans Affairs committee voted 8-4 in favor of the measure, signaling broad support in the House for switching Hoosier clocks. * * *

This legislation, which would bring Indiana’s clocks in line with 47 other states and 40 other counties, would not change Hoosiers’ time zones.

However, the bill urges Gov. Mitch Daniels to petition the federal Department of Transportation to conduct hearings on whether Indiana’s time zones should be changed.

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.

Though those who observe Daylight Saving Time move their clocks forward in April, and back in October, the June 5 date gives businesses time to adjust. And, perhaps as important, it doesn’t interfere with the May running of the Indianapolis 500.

Posted by Marcia Oddi on Wednesday, March 30, 2005
Posted to Indiana Law

Law - Driving to Illinois? Also, red light camera law in Indiana

The Chicago Tribune reports today:

Two camera-equipped vans will begin patrolling highway work zones in July, snapping images of drivers violating the 45 m.p.h posted speed limit, officials of the Illinois Department of Transportation announced today.

The vans will patrol expressway and tollway construction and maintenance zones.

Signs will warn drivers of the photo radar system, which will take a picture of the offending driver, his or her vehicle and record the vehicle's speed, officials said. Drivers captured on camera will be sent a ticket in the mail.

Work zone speeding fines increased last year to a $375 penalty on the first offense, almost double the previous $200 fine. A second ticket can result in a fine of up to $1,000 and a 90-day driver's license suspension.

The Evansville Courier& Press has an editorial today on the proposed red light camera law that raises a number of questions. It concludes:
Several states have banned red-light cameras and other photographic-enforcement systems.

Others have rewritten their laws after noticing that violations were being driven more by government greed than by safety considerations.

So from the safety standpoint there is some evidence that red-light cameras work, but there is enough evidence to the contrary to warrant caution. On the issues of intrusiveness and potential for abuse, the verdict would appear pretty clear.

We see a signal indicating the way the Legislature ought to vote on red-light cameras.

It would appear to be flashing yellow.

Posted by Marcia Oddi on Wednesday, March 30, 2005
Posted to General Law Related

Environment - Pollution case costs Dart $325,000

"Pollution case costs Dart $325,000: Initial dumping fine was $5,000" is the headline to a story today in the Louisville Courier Journal. Some quotes:

A Michigan company that owns a manufacturing plant in Horse Cave, Ky., will pay Kentucky a $325,000 settlement -- 65 times as large as one it had agreed to in October 2003 for allegedly dumping pollution in a sinkhole.

In the waning weeks of Gov. Paul Patton's administration, state environmental regulators had reached a settlement with the Dart Container Corp., whose Kentucky plant makes foam and plastic cups and eating utensils, to pay $5,000.

The settlement was reached after inspectors in 1999 said they had discovered a pipe sending wastewater from a production line to a sinkhole that flows into the Green River and Mammoth Cave National Park.

But after Kentucky Attorney General Greg Stumbo's office reviewed the case during the past year, Stumbo obtained the larger settlement.

"I will use my office to ensure that environmental violators don't get off with a slap on the wrist," Stumbo said yesterday. "This case is a prime example of the need for attorney general supervision in environmental cases." * * *

Mark York, spokesman at the Environmental Protection Cabinet, would only say that the smaller fine was levied by a previous administration, and that total fines levied by the agency are increasing under Gov. Ernie Fletcher's appointee, LaJuana S. Wilcher.

The U.S. Environmental Protection Agency and the U.S. Attorney's Office in Louisville last year turned the case over to Stumbo's office, which subsequently pursued the additional civil penalty, said Rob Jones, an assistant attorney general and director of the office's Division of Civil and Environmental Law.

Posted by Marcia Oddi on Wednesday, March 30, 2005
Posted to Environment

Courts - The judiciary may end up the big losers in the Schiavo mess

An article Tuesday in Slate titled "Judicial Dread" opined:

The judiciary is fast becoming enemy No. 1 in the culture wars—and the side wearing the black robes is losing. The anguish over Mrs. Schiavo's nightmare is boosting a rising common culture of attacks on the independence and legitimacy of our courts. In Washington and far beyond the Beltway, this new war on the courts is being waged through legislation and political intimidation, fueled by special interest campaigns of rage. "Federal courts have no army or navy," warned Rep. John Hostettler late last year. "At the end of the day, we're saying the court can't enforce its opinions." * * *

These efforts at court-stripping don't just represent just good wedge-issue politics; increasingly, they have become the law of the land. The USA Patriot Act reduced judicial discretion to review law-enforcement efforts to detain suspects, monitor private Internet communications, obtain certain personal records and share wiretaps with intelligence agencies. The 2003 "Feeney Amendment"—protested strongly by Chief Justice William Rehnquist—sharply limited the ability of federal judges to issue sentences below federal guidelines in order to set punishments that fit the crime. * * *

The courts have survived these and other contretemps—including the Bush v. Gore firestorm. But in the age of cable television and blogs, instant outrage is getting easier to manufacture. Next week, such anticourt luminaries as Majority Leader DeLay, Phyllis Schlafly, and Alan Keyes will gather in Washington to lambaste "the Judicial War on Faith." Conference organizers call it "the beginning of a broad-based effort to save America from the judges."

Our courts now face nothing less than a permanent campaign—the kind political organizers and fund-raisers lick their lips at, since there will always be controversial new cases to replenish the trough. This appetite for fresh outrage helps explain proposals to give parents more rights to litigate end-of-life disputes. After all, why would those who accuse judges of murder want to dump thousands more controversial cases into their laps? In the world of hardball politics, it turns out that losing in court can be a very good thing indeed.

Posted by Marcia Oddi on Wednesday, March 30, 2005
Posted to Indiana Courts

Ind. Decisions - Supreme Court posts two today

State of Indiana v. Loren Akins (3/30/05 IndSCt) [Criminal Law & Procedure]
Dickason, Justice

In this interlocutory appeal, the State challenges the decision of the trial court granting the defendant's motion to dismiss Count II, which charged as a class D felony that the defendant operated a vehicle while intoxicated while having a prior conviction for operating a vehicle while intoxicated. The issue is whether the defendant's prior conviction in Michigan qualifies to subject the defendant to the class D felony charge. The Court of Appeals affirmed the dismissal. State v. Akins, 795 N.E.2d 1093 (Ind. Ct. App. 2003). We granted transfer, 812 N.E.2d 796 (Ind. 2004), and now reverse. * * *

Therefore, because the defendant's prior Michigan conviction was under either or both subsections (a) and (b) of Michigan Compiled Laws section 257.625(1), and because these subsections are substantially similar to Indiana Code §§ 9-30-5-2(a) and 9-20-5-1(a), respectively, the State may properly proceed under Count II under Indiana Code § 9-30-5-3 on grounds that the defendant has a previous conviction of operating while intoxicated within the past five years in a jurisdiction in which the elements of the crime are substantially similar to the elements of a crime described in Indiana Code §§ 9-30-5-1 through 9-30-5-9.

We reverse the trial court order granting the defendant's motion to dismiss Count II and remand this cause for further proceedings.

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

Kevin Kocher v. Alva Lynne Getz (3/30/05 IndSCt) [Torts]
Dickson, Justice
In this automobile-van collision personal injury case, the trial court refused instructions the defendant submitted on comparative fault, which would have permitted a jury to consider mitigation of damages for purposes of fault allocation. The jury found for the plaintiff. In a divided opinion, the Court of Appeals reversed. SWe granted transfer, and now affirm the trial court.

I. The principal issue presented by this appeal is whether the defense of mitigation of damages under the Indiana Comparative Fault Act (the "Act") is considered as comparative fault in determining liability. This identical issue was addressed and decided in the Court of Appeals in Deible v. Poole, which we expressly adopted. In the present case, a different panel of the Court of Appeals majority declined to follow Deible. * * *

The trial court's refusal of the defendant's proposed comparative fault instructions was consistent with our express adoption of Deible and should have been affirmed by the Court of Appeals. We agree with Judge Vaidik's dissent. In cases arising under the Act, a defense of mitigation of damages based on a plaintiff's acts or omissions occurring after an accident or initial injury is not properly included in the determination and allocation of "fault" under the Act. The phrase "unreasonable failure to avoid an injury or to mitigate damages" included in the definition of "fault" under Indiana Code § 34-6-2-45(b) applies only to a plaintiff's conduct before an accident or initial injury. An example of such unreasonable failure to avoid an injury or to mitigate damages would be a claimant's conduct in failing to exercise reasonable care in using a ppropriate safety devices, e.g., wearing safety goggles while operating machinery that presents a substantial risk of eye damage.

While a plaintiff's post-accident conduct that constitutes an unreasonable failure to mitigate damages is not to be considered in the assessment of fault, a plaintiff "may not recover for any item of damage that [the plaintiff] could have avoided through the use of reasonable care." The resulting damages, excluding any caused by a plaintiff's post-accident failure to use reaso nable care, are then to be multiplied by the defendant's percentage of fault to determine the verdict to be entered under the Act.

The trial court did not err in refusing the defendant's tendered comparative fault instructions. * * *

Conclusion. We affirm the judgment of the trial court.

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

[Note: Here is the earlier Court of Appeals decision in Kocher v. Getz, from 4/29/05. As noted in the Supreme Court's decision, Judge Vaidik dissented. Judge Najam wrote the majority decision, Judge Darden concurred. Interestingly, Judge Najam also wrote the majority opinion yesterday in the fetal death case, and made a strong statement suggesting that the Supreme Court reverse a prior ruling: "Horn has no remedy for the death of her fetus unless she seeks and obtains transfer, and our supreme court reconsiders and overrules its interpretation of the statute, or the legislature repudiates Bolin."

Posted by Marcia Oddi on Wednesday, March 30, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit posts one today

Takle, Joyce v. Univ WI Hosp Clinics (WD Wis.) [10 pp.]

Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. Joyce Takle filed suit in a federal district court in Wisconsin against the University of Wisconsin Hospital and Clinics Authority, which owns and operates the University of Wisconsin Hospital and Clinics in Madison, Wisconsin. (For the sake of brevity, we’ll usually refer to both the Authority and the University of Wisconsin Hospital and Clinics as “the hospital.”) A former nurse at the hospital, Takle sought damages for violation of her rights under Title I of the Americans with Disabilities Act, the alleged violation consisting of the hospital’s having treated her as if she were disabled by diabetes when she was not. * * * The district judge dismissed the suit on the hospital’s motion, ruling that the hospital is an arm of the State of Wisconsin and is therefore immune from suit in federal court unless it has consented to be sued there, which it has not. Title I of the ADA does not abrogate state sovereign immunity. * * *

But what exactly is the “state”? The defendant in this case is, as we are about to see, a hybrid entity; it has characteristics of both a state agency and a private foundation. Where on the public-private spectrum to locate it depends on the purpose of the doctrine of sovereign immunity, and that purpose is obscure because “sovereignty” is an obscure concept when applied to a state of the United States. * * *

What we have, then—making this indeed much like the Illinois Clean Energy Community Foundation case—is a state’s creation of a private entity, with the state using its leverage as the creator of the entity to insist that it serve the state’s interests as well as its own. The strings that tie the hospital to the state are found in many cases in which a state decides to privatize a formerly state function. They do not require that privatization be treated as a farce in which the privatized entity enjoys the benefits both of not being the state and so being freed from the regulations that constrain state agencies, and of being the state and so being immune from suit in federal court.

Our conclusion that the hospital does not have sovereign immunity is in accord with the other decisions that deal with similar hybrid entities. * * *

In a case such as this, in which a privatized “independent” entity for which the state bears no financial responsibility is being sued over its personnel policies, which are entirely within its discretion, the fact that the suit can have no adverse effect on the state’s finances is highly relevant.

The grant of the motion to dismiss is REVERSED and the case REMANDED.

Posted by Marcia Oddi on Wednesday, March 30, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on Ten Commandments ruling

The Indianapolis Star today contains an AP story on Friday's Ten Commandments ruling by the 7th Circuit (Books, William A. v. Elkhart County - access the ILB entry here). Some quotes from the story, this is headlined "County waits to rehang Ten Commandments."

GOSHEN, Ind. -- Elkhart County officials have not decided when they will put a copy of the Ten Commandments back on display, but supporters of the display said they were pleased a federal court said it could be hung in a county building.

The 7th U.S. Circuit Court of Appeals on Friday overruled a lower court decision that ordered the document removed. The appeals court said that the Ten Commandments displayed among other historical documents -- including The Mayflower Compact and the Magna Carta -- in the main hall of the administration building does not violate the U.S. Constitution. * * *

Judge Diane Sykes wrote in the majority opinion, "We see no reason why the display as erected must be purged of the Ten Commandments to survive constitutional scrutiny."

That scrutiny was a three-part test that judges said the county met. The appeals court said the display had secular appeal, did not advance or inhibit particular religious beliefs and avoided "excessive entanglement" between government and religion.

But judges noted that the U.S. Supreme Court has accepted cases similar to Elkhart County's during this term. Arguments were heard earlier this month, and opinions were expected to be issued by the end of June, judges said. Its ruling could change the decision, judges said.

For more on the U.S. Supreme Court case, which was argued last Wednesday, see this ILB entry.

Posted by Marcia Oddi on Wednesday, March 30, 2005
Posted to Ind. (7th Cir.) Decisions

Tuesday, March 29, 2005

Ind. Decisions - More on wrongful death of fetus case

The Indianapolis Star website is now carrying this AP writeup of today's Court of Appeals ruling in Brittany Horn, et al. v. Kristi L. Hendrickson, et al. (3/29/05 IndCtApp) [scroll down two entries]. Some quotes:

Parents cannot recover damages in the death of an unborn child under Indiana case law even if the fetus might have been able to survive outside the womb, the state Court of Appeals ruled today.

The case involved a wrongful death lawsuit filed in 2003 by an Evansville woman who miscarried after a car accident when she was six months pregnant.

The driver who was sued, however, argued the case must be dismissed because of a 2002 Indiana Supreme Court ruling that "only children born alive fall under Indiana's Child Wrongful Death Statute." Vanderburgh Superior Court Judge Scott Bowers concurred and dismissed the suit.

In the 2002 case, which involved a crash that caused a woman to miscarry her 8- to 10-week-old fetus, the Supreme Court ruled the fetus did not fit the definition of "child" under Indiana's wrongful death law.

That ruling precludes all parents from bringing a wrongful death claim for the death of a fetus, whether it is viable outside the womb or not, Court of Appeals Judge Edward J. Najam wrote in the eight-page ruling.

Najam noted, however, that such interpretation contradicts other Indiana law, including one that makes it an act of murder to knowingly or intentionally kill a viable fetus. Under the Supreme Court ruling, a person could be convicted of feticide but not be sued for civil damages, he noted. * * *

"The question before us here does not concern the rights of the unborn; rather, this case is about the rights of parents," he wrote. The Court of Appeals [in a 2-1 decision] urged the higher court to reconsider the issue.

[Update 3/30/05] Today's Star has a slightly longer version of Charles Wilson's AP report.

Posted by Marcia Oddi on Tuesday, March 29, 2005
Posted to Ind. App.Ct. Decisions

Law - Lilly fires author for book about his behavior at past job

An AP story that appears in USA Today, reported:

Eli Lilly (LLY) has fired an employee who boasted, in a book about his tenure as a Pfizer (PFE) sales representative, about how little he worked and how much money he earned.
Company spokesman Philip Belt said Monday that Jamie Reidy, author of the recently released Hard Sell: The Evolution of a Viagra Salesman, was fired because the book advocated actions that violated Lilly's policies.

In the book, for example, Reidy admits he exaggerated how often he visited doctors. He also says he ordered extra food when he visited doctors' offices so he could take the leftovers home for dinner.

Reidy said he worked for Lilly for four and a half years, first as a salesman but most recently training other representatives. The book is based on the five years he worked at Pfizer, which makes Viagra. * * *

Reidy said he had cleaned up his act while at Lilly and that it was harder to manipulate the system.

Reidy said he finds it strange that Lilly fired him for actions he took while at Pfizer, adding that he is somewhat surprised by the company's decision.

Findlaw.com today accompanies this story with what looks to be a useful discussion on "Ending the Employer-Employee Relationship."

Posted by Marcia Oddi on Tuesday, March 29, 2005
Posted to General Law Related

Ind. Decisions - Court of Appeals posts five today

Brittany Horn, et al. v. Kristi L. Hendrickson, et al. (3/29/05 IndCtApp) [Wrongful Death; Constitutional Law]
Najam, Judge

Brittany Horn appeals the trial court’s dismissal of her wrongful death claim under Indiana Trial Rule 12(B)(6). We address the following issues on appeal: [1.] Whether a viable fetus is a “child” under Indiana’s child wrongful death statute, Indiana Code Section 34-23-2-1 (“the statute”). [2.] Whether the statute, as interpreted by our supreme court in Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002), violates Article I, Section 23 of the Indiana Constitution. We affirm. * * *

In particular, Hendrickson conceded for purposes of her motion to dismiss that Horn’s six-month-old fetus was viable at the time of the collision, but she argued that under our supreme court’s decision in Bolin, Indiana does not recognize a wrongful death claim for the death of an unborn child. Following a hearing, the trial court granted Hendrickson’s motion and dismissed Horn’s child wrongful death claim. This appeal ensued. * * *

In Bolin, Rebecca Bolin’s car was struck from behind by a vehicle driven by Brandon Wingert. The impact proximately caused Bolin to miscarry her eight- to ten-week-old fetus. The trial court granted Wingert’s motion for summary judgment on the Bolins’ claim for the wrongful death of their unborn child. This court affirmed the trial court. Our supreme court granted transfer and in the first and second sentences of its unanimous opinion stated: “In a case of first impression under Indiana’s Child Wrongful Death Statute, we address the question whether an eight- to ten-week-old fetus fits the definition of ‘child.’ We conclude that it does not.” Bolin, 764 N.E.2d 203. In the remainder of the opinion the court explained its rationale and ultimately concluded that “only children born alive” fall under the statute. * * *

Our supreme court’s holding in Bolin is nevertheless clear: only a child “born alive” fits the definition of “child” under the child wrongful death statute (“the statute”). Id. In reaching that conclusion, the court declared a “bright line” test. Despite the salient factual difference here, namely, that Horn’s fetus was viable, the Bolin opinion categorically precludes all parents from bringing a wrongful death claim for the death of a viable or non-viable fetus. * * *

Here, our supreme court’s interpretation of the child wrongful death statute in Bolin “produces different results for breaches of duty in situations that cannot be differentiated in policy.” Id. Thus, while Bolin controls on the issue of whether Horn’s viable fetus is deemed a “child” under the statute, we write to explain why we believe the court should reconsider the Bolin opinion. * * *

The holding in Bolin that parents in Indiana cannot recover for the wrongful death of a viable fetus is a return to the 19th century when, in tort law, a fetus and its mother were considered one and the same. We do not believe that the Indiana legislature intended to turn the clock back a century when it modified the child wrongful death statute in 1987. For the reasons explained herein, should Horn seek transfer, we would encourage our supreme court to address Horn’s arguments and reconsider its interpretation of Indiana Code Section 34-23-2-1. * * *

CONCLUSION. We conclude that under Bolin, Horn may not bring a wrongful death claim under Indiana Code Section 34-23-2-1 because her viable fetus was not born alive. We also conclude that the Bolin opinion, as applied to these facts, renders the statute unconstitutional under the Equal Privileges and Immunities Clause of Article I, Section 23. The Article I, Section 23 issue was not raised or decided in Bolin. Nevertheless, because we do not hold that the statute is unconstitutional on its face but that it is unconstitutional as interpreted by our supreme court, we cannot reverse the trial court. Just as we have no authority to overrule Bolin directly, we cannot disregard supreme court precedent and purport to overrule Bolin indirectly on constitutional grounds. Therefore, while we agree with Horn that the statute violates the Indiana Constitution as applied to her, a parent of a viable fetus, we must affirm the trial court’s dismissal of her child wrongful death claim. Horn has no remedy for the death of her fetus unless she seeks and obtains transfer, and our supreme court reconsiders and overrules its interpretation of the statute, or the legislature repudiates Bolin. Affirmed.
SULLIVAN, J., concurs.
MATHIAS, J., concurs in result with separate opinion.

MATHIAS, Judge, concurring in result. I respectfully concur in result. I believe that the entirety of Horn’s argument is controlled by Bolin v. Wingert, 764 N.E.2d 2001 (Ind. 2002). This court need proceed no further. * * *

ELC Electric, Inc. v. Indiana Department of Labor (3/29/05 IndCtApp) [Labor Law; ERISA]
Baker, Judge
Appellant-plaintiff E.L.C. Electric, Inc. (ELC) appeals from the trial court’s entry of summary judgment for appellee-defendant Indiana Department of Labor (Department) on ELC’s complaint alleging defamation and seeking damages and injunctive relief. ELC contends that the Department committed defamation by: 1) including ELC on its website listing as a “Common Construction Wage Violator” (CCW Violator), 2) contacting ELC’s employees to notify them of ELC’s failure to comply with the Common Construction Wage Act (CCWA), and 3) informing a school corporation of ELC’s status as a CCW Violator. Specifically, ELC urges that the Department’s enforcement of the CCWA is preempted by ERISA, that the Department’s statements were not subject to privilege or immunity, and that the statements “could be interpreted by a trier of fact to be defamatory.” Appellant’s Br. p. 20. Finding that ERISA does not preempt the Department’s enforcement of the CCWA, and the Department is entitled to absolute immunity from the defamation lawsuit, we affirm the trial court’s entry of summary judgment in favor of the Department.* * *
The judgment of the trial court is affirmed.
SHARPNACK, J., and FRIEDLANDER, J., concur.
Maria D. Carrasco v. David M. Grubb (3/29/05 IndCtApp) [Family Law]
Baker, Judge
Appellant-petitioner Maria D. Carrasco appeals the trial court’s order granting a permanent change of custody of her minor child, T.G.—born on February 19, 1990—to her and her husband and T.G.’s father, appellee-respondent, David M. Grubb. Specifically, Carrasco argues that: (1) the Guardian Ad Litem’s (GAL) participation in the proceedings was not authorized by law; (2) she should have been permitted to withdraw from the temporary custody agreement because she was coerced into the arrangement; (3) the trial court abused its discretion in striking Carrasco’s request for a hearing on the voluntariness of her agreement to a temporary change of custody; (4) it was an abuse of discretion for the trial court to have awarded attorney’s fees to Grubb; and (5) the trial court’s adoption of the GAL’s proposed findings of fact and conclusions of law was erroneous in light of the evidence that was presented in this case.

We conclude that the GAL’s participation in these proceedings was lawful, and that Carrasco has failed to demonstrate that that she was coerced into a temporary custody arrangement. We further find that the trial court granted her a hearing on this issue, and that it properly ordered Carrasco to pay a portion of Grubb’s attorney’s fees. Finally, we conclude that the trial court’s findings were sufficient to support the permanent change of custody. * * *

The judgment of the trial court is affirmed.
SHARPNACK, J., and FRIEDLANDER, J., concur.

Catalina Rodriguez v. Tech Credit Union Corporation, et al. (3/29/05 IndCtApp) [Employment Law]
Baker, Judge
Appellant-plaintiff Catalina Rodriguez (Rodriguez) appeals the trial court’s grant of summary judgment in favor of appellees-defendants Tech Credit Union Corp. (Tech), Leroy Johnson, Eddie Veal, Tanya Burns, and Tony Rodriguez (collectively, “the Board Members”) in her claim for breach of and tortious interference with an employment contract. Specifically, Rodriguez argues that the trial court improperly granted summary judgment to Tech because it was responsible for the alleged breach of her contract as the successor to LTV Steel Employees Federal Credit Union (LTV) and that summary judgment should not have been granted to the Board Members on the basis of statutory immunity. Finding that Tech could properly be sued as LTV’s successor but that LTV and the Board Members acted within the business judgment rule, we affirm the judgment of the trial court.* * *
SHARPNACK, J., and FRIEDLANDER, J., concur.

Posted by Marcia Oddi on Tuesday, March 29, 2005
Posted to Ind. App.Ct. Decisions

Ind. decisions - 7th Circuit posts two today

USA v. Garcia Parra, Arturo (WD Wis.) [23 pp.]

Before CUDAHY, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. * * * 2005). We affirm the district court’s judgment of guilt with respect to both defendants. We order a limited remand with respect to both of the sentences imposed, in keeping with the procedure outlined in United States v. Paladino, Nos. 03-2296 et al., 2005 WL 435430 (7th Cir. Feb. 25, 2005).

USA v. Henningsen, Paul (ED Wis.) [6 pp.]

Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. * * * II. Conclusion. We hereby direct a limited REMAND of Henningsen’s sentence pursuant to Paladino and the procedure set forth above. In the meantime, we retain appellate jurisdiction. Henningsen’s motion for stay of sentence and bail pending appeal is DENIED.

Posted by Marcia Oddi on Tuesday, March 29, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - 'Master' judges accept Pfaff case

The Elkhart Truth reports today, in a story by Trevor Wendzonka, headlined "'Master' judges accept Pfaff case: Supreme Court asks report be filed by first week of August," and datelined Indianapolis,that:

Three judges have accepted appointments from the Indiana Supreme Court to preside and report about the charges levied against Benjamin Pfaff.

Pfaff, in his second term on the bench in Elkhart Superior Court 1, has been accused of official misconduct by the Indiana Commission on Judicial Qualifications. The judge threatened a man at gunpoint during a December 2003 incident and later gave false information to investigators, the commission decided.

In a short reply last month, Pfaff denied the charges.

Steven David of Boone Circuit Court in central Indiana will be the presiding "master," as designated by the Supreme Court. Daniel Donahue of Clark Circuit Court on the Kentucky border and Susan Orr Henderson of Fountain Circuit Court in west-central Indiana also will serve.

The Supreme Court has asked David to set the calendar for the case within the next 30 days. A public hearing will be conducted.

Posted by Marcia Oddi on Tuesday, March 29, 2005
Posted to Indiana Courts

Law - Cincinnati is now under a federal court order to reform the city Police Department

"U.S. judge orders police reform" is the headline to this story today in the Cincinnati Enquirer. Some quotes:

U.S. District Judge Susan Dlott issued the order Monday after concluding that city officials violated the city's police-reform agreement several times last year. Her ruling means that any future violations could be punished with fines or jail time.

The decision comes almost three years after city and police officials signed the Collaborative Agreement, a landmark deal that promised to reform police policies through a cooperative effort with community leaders and civil rights activists.

The two sides feuded several times last year before ending up in court after the city denied court-appointed monitors access to staff meetings and ride-alongs with police. One of the monitors, who are intended to track the progress of reforms, was escorted from police headquarters under orders of Chief Tom Streicher.

In her ruling Monday, Dlott said the threat of stiff penalties is the best way to ensure that the city will follow the rules set down in the agreement.

Posted by Marcia Oddi on Tuesday, March 29, 2005
Posted to Indiana Law

Courts - Illinois Chief Justice looks at changing how judges are chosen

The St. Louis Post-Dispatch reported last week:

SPRINGFIELD, Ill. - In the wake of last year's bitter and expensive Illinois Supreme Court race in Southern Illinois, the court's chief justice quietly convened a meeting of the state's top legal minds Tuesday to lay groundwork for what could be a major overhaul of the way Illinois selects its judges.

A court official and others confirmed Wednesday that Chief Justice Mary Ann G. McMorrow convened the unusual meeting in the Supreme Court's headquarters in Springfield with about 20 leaders of the state's bar organizations and political reformers, as well as six of the seven justices.

The purpose, sources said, was to begin a process that could eventually make recommendations to the Legislature for changes in the election system as it relates to judges - who, like all Illinois politicians, are elected under a campaign finance system that allows unlimited political donations from any source.

Posted by Marcia Oddi on Tuesday, March 29, 2005
Posted to Indiana Courts

Environment - Several items today

Doug Masson's Blog today has an interesting item on agricultural nuisance actions, as in Senate Bill 267. His conclusion:

So, presumably under the new law, converting from a small, locally owned, odor-free agricultural operation in business between 8 and 5 to a huge operation owned by an out of state corporation belching out noxious odors 24 hours per day would not consitute a "significant change". Nice. Passed 55-40.
The Gary Post-Tribune reports:
EAST CHICAGO — The first above-ground work for a massive dredging project is to begin soon. But a critic contends the work is premature. An updated environmental study of the Indiana Harbor and Ship Canal dredging project and its effect on public health hasn’t been completed yet, Hammond resident Betty Balanoff said.

“I don’t see any point in spending money to build something until you know exactly what you’re dealing with,” she said.

An official for the U.S. Army Corps of Engineers, which is planning the dredging project, said Dyer Construction Co. is expected to start building the containment walls for the project’s confined disposal facility in a couple of weeks. The 30-foot-high disposal facility, which will hold the dredged material, will be built on the former site of the ECI refinery, west of Indianapolis Boulevard. Roy Deda, deputy administrator for project management at the Army Corps office in Chicago, said the first construction phase for the disposal facility’s wall is to be completed this year. * * *

The dredging itself won’t start before summer 2007, Deda said. The project is to take about 4.6 million cubic yards of industry-contaminated mud out of the harbor and ship canal. Critics contend that the effect of pollution getting into the air from the dredged mud hasn’t been studied adequately.

The U.S. Environmental Protection Agency is working on an a new environmental assessment, and a public health expert from the University of Illinois-Chicago is to report on the confined disposal facility’s health effects.

Posted by Marcia Oddi on Tuesday, March 29, 2005
Posted to Environment

Monday, March 28, 2005

Ind. Law - IU-Indianapolis Law reportedly tumbles in U.S.News rankings

Joshua Claybourn reports today at IndyLaw.com:

Devastating news for IU-Indy

Although US News & World Report's annual ranking of law schools shouldn't matter much, they do, both in the minds of prospective students and in the minds of some firms/judges, among others. A website has obtained the 2006 US News & World Report rankings, and IU-Indy was placed at 95, a whopping 32 places lower than last year. Our sister school in Bloomington jumped four notches to 36.

Posted by Marcia Oddi on Monday, March 28, 2005
Posted to Indiana Law

Ind. Decisions - Court of Appeals posts two today

Damian Harris v. State of Indiana (3/28/05 IndCtApp) [Criminal Law & Procedure]
Hoffman, Judge

* * * {Issue 4] Whether Harris’ sentence violates his constitutional rights as set forth in Blakely v. Washington. * * *

Further, we conclude that the trial court erred by applying an improper aggravating circumstance in sentencing Harris. Finally, based upon Smylie, we conclude that Blakely does apply to Indiana’s sentencing scheme and that the enhancement of Harris’ sentence cannot be imposed without factual findings by a jury.

Affirmed in part, reversed and remanded in part for a new sentencing consistent with this opinion.
BAKER, J., and ROBB, J., concur.

Eli D. Mast v. State of Indiana (3/28/05 IndCtApp) [Criminal Law & Procedure]
Mathias, Judge
Eli Mast (“Mast”) pled guilty to Class C felony burglary and admitted to being an habitual offender in Allen Superior Court. Mast appeals, raising the following restated issue for review: Whether Mast’s sentence was inappropriate. Concluding Mast’s sentence was appropriate, we affirm. * * *

When a plea explicitly permits the trial court to sentence the defendant within a given range or caps a sentence, Gist and Mann’s implicit waiver provision is entirely logical. However, when the defendant’s plea is open, there is no relevant distinction between a review of a sentence resulting from such a guilty plea and a sentence resulting from a conviction. There is nothing in Mast’s plea agreement that indicates he consented to an inappropriate sentence, and Mast did not otherwise waive his right to challenge his allegedly inappropriate sentencing by pleading guilty. See Appellant’s App. p. 37.

Nonetheless, Mast’s sentence was appropriate. Mast was convicted of a Class C felony, and the maximum sentence he could have received was eight years rather than his six-year sentence. See Ind. Code § 35-50-2-6 (2004). A single aggravating circumstance is sufficient to justify an enhanced sentence. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002). Mast’s eight prior convictions speak to the nature of Mast’s character, outweigh his mitigating factors, and justify his cumulative sixteen-year sentence.
Affirmed.
SULLIVAN, J., concurs.

BAILEY, J., concurs in result with opinion.
BAILEY, Judge, concurring in result. I agree that Mast’s aggregate sentence of sixteen years is appropriate. However, I disagree with the majority’s criticism of the breadth of the language of Bennett v. State, 813 N.E.2d 335 (Ind. Ct. App. 2004). When a defendant accepts an indeterminate sentence, that is, with no set number of years, but is advised of the minimum sentence possible and the maximum sentence possible, the defendant implicitly agrees that his sentence within that range is appropriate. Therefore, I concur in result.

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

Ind. Decisions - 7th Circuit posts one today

Lakeland Enter Inc v. Chao, Elane L. (Petition for Review of an Order of the Department of Labor) [15 pp.]

Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. This is a review of a decision of the Occupational Safety and Health Review Commission (OSHRC) assessing a $49,000 civil penalty against Lakeland Enterprises of Rhinelander, Inc., for willful violation of 29 C.F.R. § 1926.652(a)(1), which requires that workers in excavation trenches be protected from cave-ins. Lakeland argues that the evidence collected at its excavation site should have been suppressed because the surprise inspection by a compliance officer from the Occupational Safety and Health Administration (OSHA) was conducted without a warrant. Lakeland also challenges the administrative law judge’s (ALJ) exclusion of certain expert testimony and attacks the sufficiency of the evidence regarding the code violation and the ALJ’s finding of willfulness. We deny the petition for review.

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

Ind. Decisions - Indiana tackled right-to-die issue in '91

The Indianapolis Star had a front-page story Sunday by Diana Penner headlined: "Indiana tackled right-to-die issue in '91: In Schiavo-like case, parents agonized, then chose to remove tube; a legal battle followed." Some quotes:

For the first two years or so that Sue Ann lived in a Hamilton County nursing home, the Lawrances settled into a routine of visiting her, looking for signs of improvement. "She was not responsive. She would move her arms. Her mouth was open some of the time," William Lawrance recalled. "She could change her facial expressions."

The Lawrances asked Sue Ann's four siblings to write letters outlining their thoughts. They consulted their doctors. They sought counsel from their Unitarian minister. "We had come to the conclusion that it was not being kind to Sue to keep this up," her father said.

With agreement among family members and the support of doctors, friends and clergy, the Lawrances got a lawyer, who assured them the matter could be "handled quietly and privately," Bonita Lawrance recalled.

"Then -- whammo!" her husband said.

The Lawrances won a court order allowing the feeding tube to be removed, but the Hamilton County nursing home balked. Sue Ann was transferred to a Marion County hospice.

A professional association representing nursing homes alerted the media about the case, and a right-to-life attorney was appointed Sue Ann's guardian. The Indiana Civil Liberties Union aided the Lawrances through a marathon of emotion-packed court hearings.

"We were both so naive. We thought everything that happened in the courts was just the way it should be, and that you got a fair trial," Bonita Lawrance said. "It feels like a fast-moving freight train, and you can't figure out how to get off," her husband said.

In the beginning, the Lawrances had no intention of setting a legal precedent. All they wanted, they said, was the best for their daughter. They reluctantly agreed to allow Sue Ann's nutrition to be resumed in May 1991 -- they said they felt they had no choice -- while the legal arguments were being made.

"When they discontinued the feeding, it seemed like she relaxed," Bonita Lawrance recalled, and her husband continued the thought, a bit of irritation evident in his voice: "And when they put it back in, she got agitated."

Jan Lawrance, married to Sue Ann's brother Mark, was a family spokeswoman in 1991 and continues to be an advocate for the right to die. She feels sorrow for Schiavo's parents, she said, but disagrees with them. "No one wants their little girl to die," Jan Lawrence said. "The decision isn't between life and death. It's the continuation of the dying process."

On July 18, 1991, a Thursday, Sue Ann Lawrence died at 42 of pneumonia while her case was pending. Both sides urged the Indiana Supreme Court to go ahead, and in September 1991, the court ruled that families like the Lawrances, in consultation with doctors, could agree to removing a feeding tube without going to court.

"I think we had a feeling that Sue is at rest," her mother said. "And that was comforting."

The Lawrances withdrew from the public debate. They support living wills and urge people to talk about the issues, but they are not activists.

The Indiana Supreme Court case is In re Lawrance (9/16/1991).

Posted by Marcia Oddi on Monday, March 28, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - A single statewide voter registration list

The Fort Wayne Journal Gazette reports today in a lengthy story that begins:

By the beginning of next year, Indiana plans to have a single statewide voter registration list.

The list will be shared by all counties, allowing for the elimination of duplicate registrations and a more accurate voter roll. It will also force the state to spend $13 million in federal money installing new computer systems throughout different counties.

The only problem is that while the system will likely move the majority of counties forward, it could force some of the more advanced counties – including Allen – to take a few steps back.

Barry Schust, the Republican member of the Allen County Board of Voter Registration, said the county currently maintains all voter registration data locally. He said this allows him to create an almost infininte number of reports with the information in various formats, including Microsoft Excel and Access.

“Pretty much whatever you can think of, we’ve got the capabilities of doing,” he said.

The county uses the reports to check its information and any holes in information about registered voters.

Schust said this allows the county to have some of the cleanest – and most accurate – data in the state.

Under the statewide system, all counties’ data would be stored on a server in Texas and accessed through data lines. This situation creates concerns about the server going down or all counties trying to access it at once on Election Day.

“I don’t want to be concerned about the weather in Texas as we approach Election Day,” Schust said.

Pam Finlayson, Allen County election director, said the state system will also limit the number of reports that can be created with the data. If the county can’t create the report it wants, it will be more difficult to share information with the public. She said the new system might prevent the county from allowing residents to search for their voting precinct on the Internet.

“We don’t know yet if their system will allow us to pull the information we need,” she said.

Schust and Finlayson said there is a simple way the state can allay their concerns: allow the county to keep a backup copy of its voter registration data locally. “I would feel much more comfortable if we have a backup of our data here,” Schust said.

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

Ind. Courts - Suit alleges $100 million extortion bid

A story by Maureen Hayden in the Sunday Evansville Courier& Press, headlined "Suit alleges $100 million extortion bid," leads with:

An Evansville insurance agent who once made millions as one of the nation's top salesmen is being accused in a federal lawsuit of attempting to extort as much as $100 million from his former employer.

The lawsuit, filed by Northwestern Mutual Life Insurance Co., alleges former Northwestern agent David A. Stinnett created a shell company to solicit lawsuits from disgruntled Northwestern customers, and then offered to shut the entity down if Northwestern paid Stinnett between $50 million to $100 million. Stinnett denies the allegations.

His attorney describes the civil action as a "slap suit" intended to stop Stinnett from exposing questionable practices engaged in by the Milwaukee-based life insurance company.

"The lawsuit lacks merit," said Joseph Cunningham, a Virginia-based lawyer hired by Stinnett last week to defend him in the lawsuit. The lawsuit, filed in U.S. District Court in Indianapolis, is the latest in a series of legal problems for Stinnett, who filed for personal bankruptcy in June of 2000, listing more than $2.4 million in debt.

Posted by Marcia Oddi on Monday, March 28, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Attorney General's column in Sunday Indianapolis Star

Attorney General Steve Carter has a "My View" column in the Sunday Indianapolis Star, explaining that, to quote the headline, "All rules [were] followed to award contract to ex-employee." The contract was the subject of this March 12th entry, titled "State lawyer won contract from his boss," and the Star editorial from March 15th, quoted in this ILB entry. [I can't find Sunday's AG letter online at the Star site for some reason, however, here is a similar letter from the Fort Wayne Journal Gazette site. A quote from that letter:

Under Indiana law any work undertaken in opposition to the state requires a one year separation from state employment. Any work performed on behalf of the state by a former state employee can be performed immediately without exception (I.C. 4-2-6-11(f)), something the article and editorial overlooked.

Posted by Marcia Oddi on Monday, March 28, 2005
Posted to Indiana Law

Sunday, March 27, 2005

Ind. Law - Major changes made to proposed sentencing bill

Senate Bill 96, which originated as the product of the Sentencing Law Policy Committee (see this Jan. 5th ILB entry, along with this one from Feb. 23rd and this one from March 10th), reportedly underwent some major modifications in House Committee, with, I'm told, the approval of Senator Long, who had chaired the Sentencing Law Policy Committee. My source's "take" on this:

"Presumptive" now equals "advisory" and the trial judge can sentence anywhere in the range he wants to for any reason. Someone read Smylie and Booker and decided to take the easy out by reverting to pre-1977 indeterminate sentencing.
Here is the text of the approved House committee report; here is the current version of Engrossed Senate Bill 96, as eligible for second reading in the House. The new digest:
Sentencing. Replaces the fixed term of imprisonment for
murder and other felonies with an advisory sentence to be used as a
guideline sentence that a court may voluntarily consider as the
midpoint between the maximum sentence and the minimum sentence
that may be imposed for murder and other felonies. Makes conforming
amendments.

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

Ind. Gov't - Still more commentary on DNR mass firings

Supplementing earlier entries here (3/15/05) and here is (3/20/05) this commentary today in the South Bend Tribune from Louis Stout. Some quotes:

What is it that they say about first impressions?

Kyle Hupfer wasted no time making a lasting one with Indiana Department of Natural Resources employees.

The new director walked into a Monday morning staff meeting recently, according to a source at the meeting, read off 10 names of people in the room and essentially said, "You're fired. Pick up your termination papers at the door. This meeting is over."

Apparently, Republican Gov. Mitch Daniels' appointees aren't buying into George Bush's "compassionate conservative" agenda.

Those on the black list included Paul Ehret, deputy director of regulation; Janet Parsanko, deputy director and general counsel; and division directors Stephen Sellers, communications; Eric Myers, Heritage Trust and Natural Resource Foundation; Mike Nickolaus, oil and gas; Harry Nikides and his assistant director Randy Braun, soil conservation; John Tryon, human resources; Barbara Moore, land acquisition; and Burney Fischer, forestry.

Reportedly no warning. No explanation. Just the basic, "Don't let the door hit you in the fanny. ..."

Even Donald Trump would have winced.

Before the disheartened victims could shuffle back to clean out their desks, Hupfer distributed a mass mailing to remaining employees notifying them that the aforementioned co-workers had been scratched from the payroll. * * *

Hupfer's cold-hearted handling of the staff also raised suspicions brewing within the conservation community. Little is known of the 32-year-old lawyer who left the Indianapolis law firm of Ice Miller to accept Daniels' DNR appointment. We're all waiting for some sign that Daniels chose the right man for the job.

"In Kyle Hupfer, we have a genuine man of the Indiana soil," Gov. Daniels said when he announced the appointment. "He brings with him a lifetime of experience as a hunter and outdoorsman. He also brings a lot of business sense."

To his credit, Hupfer scored points with some sportsmen this week. He provided compelling testimony before the House Agricultural Committee against a sneaky bill amendment that would remove deer farming from DNR control. It was another backdoor attempt by lobbyists to legalize canned hunting on deer farms, yet Hupfer was able to convince the committee to hold off its vote.

For more on the deer story, see this March 24th ILB entry.

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

Courts - Judges on the hot seat

"It's The Law, Not the Judge: But These Days the Bench Is the Hot Seat," is the headline to a piece by Jeffrey Rosen in the Sunday Washington Post's Outlook section. It begins:

The response to the rulings in Terri Schiavo's case, following close after the murder of a state judge in Atlanta and a federal judge's family in Chicago, has put not only judicial opinions but judges themselves suddenly under the spotlight. The U.S. Marshals Service reports a "dramatic increase" in threats against federal judicial officials in recent years. And political attacks on judges seem to grow ever more vitriolic. The title of a best-selling new book makes its unsubtle point: "Men in Black: How the Supreme Court Is Destroying America."

Judges today are being catapulted into public view as personalities who seem fair game for attack rather than as anonymous oracles of the law. Part of the reason for this is the legalization of politics: Both liberals and conservatives are increasingly asking judges to decide issues -- from the right to die to presidential elections -- that politics are unable to resolve. As a result, when politicians and disappointed litigants don't like the result of a judicial decision, they feel emboldened to demand a new judge rather than accepting their defeat with good grace. This new personalization of the judiciary poses grave threats to the idea of judicial independence, which judges should try to resist by avoiding the spotlight rather than courting it.

A related AP story, dateline Topeka, Kansas, appears in a number of papers today. Some quotes:
The justices of the Kansas Supreme Court haven't been making many friends lately, certainly not among legislators. First, they knocked down the state's death penalty, then demanded the state spend more money on education.

The reaction at the capitol to the unpopular orders? A proposed constitutional amendment requiring Senate confirmation of those who would sit on the state's highest court - an idea that has found backers in some states where legislators have found themselves upset with the actions of the third branch of government.

"We are seeing across several states and the federal government efforts to limit judicial independence. There is a general perception that when courts make rulings counter to prevailing political sentiments, they are somehow not doing their job," said Rachel Caufield, a Drake University politics professor and research coordinator for the American Judicature Society.

As the story points out, the Kansas selection process is similar to that in Indiana:
For the past 45 years, Kansas justices have been chosen by "merit selection" - designed explicitly to keep politics out of the process. A nonpartisan commission picks three finalists for jobs on the high court, leaving the final choice to the governor.

Voters decide every six years whether a justice remains in office, and no justice has ever failed to receive a two-thirds majority. Similar approaches are used for initial selections of justices in 23 states and for interim appointments in seven others.

That the governor is involved raises the ire of some conservatives, who don't think Democratic Gov. Kathleen Sebelius should have a free hand in shaping the seven-member court of a state that is predominantly Republican. But the court's recent decisions are driving the proposed changes. * * *

"I'm concerned that the tone of some recent decisions has raised real ire in the Legislature and the countryside and we are wise to look for a measured response that makes sense," said Senate Majority Leader Derek Schmidt, R-Independence. "I'm concerned that if we don't do anything, the lid will blow off the powder keg eventually."

The measured response: subjecting the justices to Senate confirmation. Senate leaders say such a constitutional amendment has broad support and could come up for a vote next week. Adoption by the Legislature would put the proposal on the statewide ballot in November 2006.

Meanwhile, the House has its own plan, a proposed amendment requiring nonpartisan elections for justices, which is done in 13 states.

"The idea of merit selection is to squeeze politics out of the judicial selection process to the extent that is feasible to do so," said Allan Sobel, the executive director of the American Judicature Society, which created merit selection in the 1930s. "To call for Senate confirmation is to throw politics back into the mix in a very substantial way."

But University of Pennsylvania law professor Stephen Burbank said unless senators try to influence court decisions, justices should not feel that a confirmation unduly curtails their independence. Seven states with merit selection of justices now require Senate confirmation, and Connecticut requires approval by the House and Senate.

Even so, Burbank said, lawmakers should think twice before making changes. "If it turned out that this was a short term reflection of disagreement with a few decisions in the recent past, it probably would be a mistake," Burbank said.

The piece points out that Kansas is not by itself in proposing changes:
The reaction of Kansas lawmakers to its court's unpopular decisions isn't uncommon in other states that use merit selection. Some Missouri lawmakers want to add Senate confirmation, while others have proposed taking away the power of the courts to determine public school funding. Neither appears to have much political traction.

"If they can remove jurisdiction from one thing, there is no reason why they couldn't do it with everything and not even have courts," said Kansas City, Mo., attorney Joe Whisler.

On Thursday, the Arizona Senate passed and sent to the House a proposed constitutional amendment to give senators the power to reject a governor's judicial appointments.

Indiana senators passed a confirmation plan, but it faces a doubtful future in that state's House. In the South Dakota Legislature, a Senate confirmation plan died this year. In Wyoming, a similar proposal failed to clear a House committee.

"There is this idea that judicial independence is bad because it's supposed to protect bad judges, but in reality judicial independence is about protecting the public," Caufield said. "No judge should ever be beholden to public opinion. They should be beholden to the law."

Indiana's proposal is, of course, SJR 1, about which the ILB has posted six earlier entries, including this most recent one from March 21st.* However, I am unaware of what are "the unpopular decisions" in Indiana that this proposed constitutional amendment is designed to counter. Or is it intended as a preemptive measure? Or a warning shot? Whatever, it passed the Indiana Senate by a vote of 33 to 16. Access the rollcall here. It was assigned to the House Judiciary Committee on March 14th.
_____
* To find the other entries, type "SJR 1" with the quotes in the search box in the right column.

Posted by Marcia Oddi on Sunday, March 27, 2005
Posted to Indiana Courts

Environment - In Ohio, One Farmer's Prosperity Is Another's Poison

The NY Times had a long piece Saturday about the Dutch mega-daries moving into the midwestern states of Ohio, Michigan, and Indiana. Some quotes:

SOUTH SOLON, Ohio - To Martin De Haan, central Ohio is the land of milk and honey, emphasis on the milk. A year ago, he fled the teeming shores of the Netherlands because he could not afford to expand his small dairy farm. Here, he found land that was cheap, lush, bountiful and, to his delight, almost hilly.
* * *

But where Mr. De Haan envisions bovine splendor, some of his neighbors see the farming equivalent of a smoke-belching chemical plant. "These are not farms, they are factories," said Mary Pierce, 44, who lives down the road from Mr. De Haan. "And they should be regulated as such."

Ms. Pierce's protests are emblematic of a broader battle being waged in Ohio, Indiana and Michigan over a new generation of large animal farms, many owned by Dutch immigrants, that are pumping money into rural economies but also drawing sharp protests from environmental groups and homeowners concerned about water pollution, odors and land values.

Over the past seven years, more than 40 Dutch dairy farmers have moved to the region, driven out of the Netherlands by costly milk quotas, intense competition, tough environmental regulations and high land prices.

In America, the Dutch farmers, with the help of an Ohio-based company, have opened large farms that supporters say have helped revitalize the region's once proud and powerful dairy industry, whose steady decline in the 1990's hurt local crop farmers and milk processors.

"Our production and cow numbers have actually begun to increase because of these farms," said Tim Demland, executive director of the Ohio Dairy Producers. "They are vital to a rich Ohio tradition."

But critics say the farms, which typically have several hundred and sometimes thousands of cows, are an insult to another tradition: the small farm where herds of 60 to 150 cows graze on open grassland. The large farms, known as confined animal feeding operations, have too little acreage to allow grazing, produce more manure than they can handle and threaten to pollute aquifers, critics contend.

Last year the federal Environmental Protection Agency issued citations against 16 of the Dutch farms in Ohio, Indiana and Michigan, asserting that they had violated clean-water regulations intended to prevent liquid manure and other wastes from leaching into waterways.

The Dutch farmers contend there is little evidence that their farms have contaminated wells or waterways, noting that they generally live on the farms and have a vested interest in keeping the water clean. But a Michigan group says it has documented dozens of manure and silage discharges into local streams; the discharges led to state action against Dutch farmers.

What perhaps riles opponents of the large farms most is their smell. Each farm is required to build ponds capable of storing millions of gallons of liquid manure until it can be spread on nearby crop fields. On warm summer days, those lagoons can advertise their existence for miles around, critics complain.

"Sometimes it will be so bad it will wake you up at night," said Diane Furbee, who with her husband runs a crop and beef-cattle farm in Madison County, Ohio, near a Dutch-owned farm with nearly 800 cows. "For God's sake, we farm," she said. "We know what manure smells like. But our air is so bad, we can't breathe." * * *

The farm is a model of high-tech efficiency. Inside one barn, computerized machines draw milk from 48 black-and-white Holsteins. When sensors tell the machines the milk is drained, the stalls open with a hydraulic whoosh and another 48 cows saunter in. Cows are milked three times a day, producing a daily average of 86 pounds each, said Pieter Assen, the family's youngest son, who runs the farm with his brother.

Outside is the 15-foot-deep, seven-million-gallon manure lagoon, which will be expanded to hold up to 24 million gallons. On a cold March day, the odor is slight. But Mr. Assen, who lives in a white house across the street, acknowledges it can occasionally be powerful. * * *

Groups opposing the large farms have sprung up across the region, demanding tougher regulatory oversight. One Ohio group, Citizens Against Mega Dairies, has filed a lawsuit demanding that the state's Department of Agriculture rescind a permit to one Dutch dairy on the ground that the department lacks the expertise to regulate such large industries.

Richard C. Sahli, an environmental lawyer representing the group, said that while the number of confined animal feeding operations has more than tripled in Ohio over the past decade, to about 140, the state has only a handful of inspectors to oversee their operations. "Ohioans are getting the rock-bottom minimum in protection," he said.

Posted by Marcia Oddi on Sunday, March 27, 2005
Posted to Environment | Indiana economic development

Saturday, March 26, 2005

Ind. Decisions - Court upholds conviction of Jeffersonville man in death of motorcyclist

The Louisville Courier Journal reports today, in a story by Harold J. Adams, that:

The Indiana Court of Appeals has upheld the conviction of a Jeffersonville man in the 2002 death of a motorcyclist.

A Clark County Superior Court jury last year found James Clint Ruckman, 23, guilty of seven charges in the July 7, 2002, death of James Glotzbach. But Judge Jerry Jacobi entered convictions only on reckless homicide, leaving the scene of an accident involving death and operating a motor vehicle while intoxicated. Jacobi sentenced Ruckman to 13 years in prison, with four years suspended.

Ruckman ran his car into Glotzbach's motorcycle at the intersection of Utica Pike and Allison Lane. The impact knocked the bike down and threw Glotzbach onto the road, where he was run over by another vehicle.

Ruckman's appeal claimed that the three convictions entered by Jacobi amounted to double jeopardy — punishing him more than once for the same offense. The convictions for reckless homicide and for leaving the scene of an accident involving death were based on the same thing — Glotzbach's death — and thus should not be allowed, the appeal argued. A unanimous three-judge appeals panel disagreed.

"Ruckman is not being punished twice for the same death," Judge James Kirsch wrote in a decision issued Monday. "Rather, he is being punished once for Glotzbach's death by virtue of his reckless homicide conviction, and once for his breach of his duty as a motorist to stay at the scene of an accident." * * *

It also rejected a claim that Jacobi abused his discretion when he imposed sentences longer than the standard or presumptive sentences and decided to run them consecutively. The appeals court noted that Jacobi carefully explained his decision "in an exceptionally detailed sentencing statement that consumes more than 30 pages of the record." Jacobi said in an interview that he was mindful of a likely appeal when he prepared the sentencing statement.

Jeff Stonebraker, Ruckman's attorney for the appeal, said he could not comment on the ruling because he had not yet seen it.

We haven't seen it either. The Court designated the 17-page decision Not for Publication pursuant to Rule 65(A) and it is not available online. Access a copy of the docket in the case here.

Rule 65(A) provides that a Court of Appeals opinion shall be published if it: (1) establishes, modifies, or clarifies a rule of law; (2) criticizes existing law; or (3) involves a legal or factual issue of unique interest or substantial public importance.

Posted by Marcia Oddi on Saturday, March 26, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - SB 512 would strip cities of their ability to veto annexations within a three-mile buffer zone

The Gary Post-Tribune reports today on Senate Bill 512: Some quotes:

Senate Bill 512 would strip cities of their ability to veto annexations within a three-mile buffer zone.

It has already passed the Senate and is headed to the House floor. The bill is retroactive to Jan. 1, 2004, which likely strips Crown Point’s right to object to the town of Schererville’s decision in January to annex 8.8 acres off Clark Road owned by the Order of Eagles. * * *

The original bill was authored by Sen. Jeff Drozda, R-Westfield. He submitted the bill after his own home was part of an annexation bid by the nearby city of Carmel. The city has several pending annexations.

When neighbors asked nearby Westfield to put together its own annexation bid for the area, Drozda found the town had to ask the city’s permission before annexing land within three miles. That is why the bill is retroactive, he said.

The bill passed the Senate 47-3. It now moves onto the House floor.

The current bill uses compromise language drafted by the Indiana Association of Cities and Towns, said Deputy Director Andrea Johnson. She said he wasn’t sure why cities were given the advantage over towns.

The bill would not eliminate the buffer entirely, only the advantages when going head-to-head with a nearby town.

Drozda said he would be open to compromise language if Lake County lawmakers can reach an agreement. Klein said he was open to the idea.

If the bill passes, Stevenson said, it will give residents in unincorporated areas more options when their property is being considered for annexation.

Klein said the three-mile buffer allows cities to grow in an orderly fashion, squaring off their borders. He conceded that the city is also interested in annexing the Luers property, which is within the city’s sewer district.

The mayor said if the bill becomes law, it will touch off annexation battles around the state.

Volkmann said the three-mile buffer gave Crown Point an unfair advantage. “Those three miles keep growing farther every time the city annexes more land,” he said.

This is a very complex bill, as can be seen from a look at the amended digest. For background, see this ILB entry from Nov. 23, 2004, and the related links.

Posted by Marcia Oddi on Saturday, March 26, 2005
Posted to Indiana Law

Ind. Decisions - State DOT sued for alleged ADA violations

Here is a Gary Post-Tribune story on a case pending in the ND Ind. Some quotes:

HAMMOND — A seeing-eye dog lounged on the courtroom floor as a sign-language translator interpreted legal arguments seeking to allow residents with disabilities the right to sue the state when they believe they’ve been harmed.

The issue began in 1998 when the Everybody Counts Center for Independent Living, a not-for-profit Merrillville advocacy agency, and eight local residents with disabilities filed a class-action suit against the state.

U.S. District Judge Philip Simon heard two hours of arguments from attorneys on both sides Thursday and now must decide if the state can be taken to court for allegedly violating the Americans with Disabilities Act.

The plaintiffs sued the Indiana Department of Transportation, the Northwestern Indiana Regional Planning Commission and a group of local transportation providers. They alleged multiple violations of the ADA law, passed by Congress 15 years ago. They complained about a denial of access, late pickups, a lack of adequate driver training or drug screening, and unsafe practices. They are seeking unspecified monetary damages. * * *

The attorney for INDOT, Thomas Fisher, argued that the state organization was protected from lawsuits through “sovereign immunity.” He cited the 11th Amendment, which excludes Indiana and other states from being liable for damages in private lawsuits.

Though admitting there may have been some problems in the local system in transporting people with disabilities, Fisher told the judge there’s no evidence of the state violating anyone’s Constitutional rights. “There’s no history of irrational discrimination here,” he said.

Posted by Marcia Oddi on Saturday, March 26, 2005
Posted to Ind Fed D.Ct. Decisions

Law - Judge removes hurdle, region boats may have land-based competitor

A story today in the Munster (NW Indiana) Times reports:

A proposed tribal casino in New Buffalo, Mich., is back on the fast track after a ruling late Thursday by U.S. District Court Judge James Robertson.

Robertson's ruling in favor of the U.S. Department of the Interior clears the way for the Pokagon Band of Potawatomi Indians to resume plans for a land-based casino near the resort community on Lake Michigan's shores.

If built, the 144,000-square-foot casino is expected to be a major competitor for the Blue Chip riverboat casino, just 10 miles away in Michigan City, and to a lesser extent the other gambling boats lining the Lake Michigan shoreline in Indiana.

The ruling Thursday effectively leaves it up to the Bureau of Indian Affairs to determine whether sufficient study has been done to determine the impact of the proposed 465-acre development on the community.

The lawsuit against the Department of the Interior was brought by Taxpayers of Michigan Against Casinos, alleging not enough was known about how the casino development would affect the small community. * * *

The tribal casino would change the dynamics of Indiana's gaming industry, said Ed Feigenbaum, editor of Indiana Gaming Insight.

Unlike riverboats, which are limited by size, "This will be land-based and unlimited," Feigenbaum said. "And you will have the ability to build additional kinds of land-based facilities, such as a concert hall, retail and other establishments.

The South Bend Tribune reports:
The final federal court challenge preventing the Pokagon Band of Potawatomi Indians from moving forward with casino development plans was dismissed late Thursday.

U.S. District Judge James Robertson ruled that the New Buffalo area where the tribe intends to build its casino will not sustain significant negative environmental or social impact due to the development as claimed by Taxpayers of Michigan Against Casinos.

The New Buffalo-based organization filed a lawsuit in 2001 to block the Bureau of Indian Affairs from taking the land into trust. * * *

The casino would be built in two phases. The first phase would include the casino, six restaurants and a parking garage for 2,200 cars. The second phase would include a hotel and special events center.

Economic studies predict the casino will support 3,500 new jobs in the community with 2,000 new jobs created directly at the casino, a news release said. The study also estimates payments of more than $20 million to the state and more than $4 million a year in direct payments to governments and agencies in the region.

Here is a link to the decision in TOMAC v. NORTON from Judge James Robertson of the federal district court for the District of Columbia.

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

Friday, March 25, 2005

Environment - More about Marble Hill

Last week the ILB had an entry on blowing up buildings at the former Marble Hill Nuclear Power Plant site. This week The Madison Courier has a story titled "Expansion of transformer recycling company raises Marble Hill neighbors’ PCB concerns." It begins:

A company located at Marble Hill has applied to the U.S. Environmental Protection Agency and the Indiana Department of Environmental Management to store larger quantities of polychlorinated biphenyl, or PCB. Some local residents are concerned about toxic PCBs being stored in the area.

Transformer Decommissioning LLC, which has been operating at 2478 W. Marble Hill Road since 1999, recycles transformers from electric companies. Some of the transformers contain PCBs and are temporarily stored at the Marble Hill site. The company is based in Indianapolis.

Rob Van Vliet, president of Transformer Decommissioning LLC, said residents should not be concerned because very few of the transformers contain PCB, which has not been manufactured in the United States since 1977. Transformers that test positive for PCB are immediately put in a secondary containment area and no one touches them, he said.

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

Ind. Gov't. - Indiana moves to protect biotech seed

An interesting story about a bill I hadn't read about before is written up today in Brownfield, America's Ag News Source. Some quotes:

A bill to restrict a local government’s ability to ban the planting of biotech seeds is advancing in the Indiana General Assembly. HB 1302, authored by Representative Eric Gutwein of Rensselaer, passed the Senate Agriculture Committee on Wednesday and will now be considered by the full Senate. The bill gives the State Seedsman in the Office of the State Chemist the sole authority to regulate the seed industry in the state. This prevents local communities or counties from passing laws restricting the use of certain types of seeds in their area.

Gutwein said this measure is needed to protect agriculture from a growing threat. “There are special interest groups that are against biotechnology and they are moving to get local governments to pass laws restricting the use of this technology in a local area,” he told the Senate Ag Committee on Wednesday. Several communities in California have already passed such local ordinances although no such efforts have yet been made in Indiana. With over 80% of soybeans grown in Indiana coming from Biotech seeds, such restrictions could be devastating. Cress Heizer, with the Indiana Grain and Feed Association, said it is vital that regulation of the seed industry be kept science-based. * * *

Lt. Governor Becky Skillman has released a statement in support of the measure. “We are supportive of this measure. It would create a system analogous to how the state handles other inputs,” Skillman’s office said. The Indiana Soybean Growers Association has also backed the legislation noting that such protection exists for the pesticide and fertilizer industries and should be afforded the seed industry. The bill now goes before the full State Senate.

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

Law - [Updated] More on the federal Terri Schiavo law

On March 21 the ILB published the text of Congress' Terri Schiavo law. This Adam Liptak column, published Thursday in the NY Times, gives an interesting analysis of the judicial review of the new law. A sample:

In almost the same breath, the two judges who joined the unsigned majority opinion, Ed Carnes and Frank M. Hull, said the law enacted on Monday could not undo years of litigation in the Florida state courts. And in what could be read as a dig at Congress, the judges suggested that better drafting might have yielded a different result.

"Congress considered and specifically rejected provisions that would have mandated, or permitted with favorable implications, the grant of the pretrial stay," the majority said.

An early version of the legislation passed on Monday said that the district judge hearing the Schiavo case "shall" issue a stay of the state court proceedings. A later one said it "may" issue such a stay. The law as enacted omitted the provision entirely.

Yesterday's panel decision quoted at length and with something like glee from an exchange between Senator Carl Levin, Democrat of Michigan, and the Senate majority leader, Bill Frist, Republican of Tennessee.

Senator Levin asked Senator Frist about the significance of the omitted stay provision.

"Nothing in the current bill or its legislative history mandates a stay," Senator Frist replied. "I would assume, however, the federal court would grant a stay based on the facts of this case because Mrs. Schiavo would need to be alive in order for the court to make its determination."

Dr. Frist assumed wrong, the majority suggested. Indeed, the music of the panel decision was that Congress could not win. Had it passed the earlier version of the law, the courts might well have held it unconstitutional. The version Congress did pass, the panel majority said yesterday, was ineffective.

[Updated 3/26/05] This Washington Post editorial today comments on the conduct of the three branches of government with respect to the Terri Schiavo case. It begins:
NEITHER CONGRESS nor President Bush acquitted themselves well last weekend in enacting a law to intervene in the case of Terri Schiavo. But in the days that have followed, one institution of American government has distinguished itself in its handling of the matter: the federal courts.

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

Ind. Law - More on "Bringing daylight saving time back to life"

I love this headline to an AP story by Mike Smith today as published in the Fort Wayne Journal Gazette: "Alderman parts curtain to save daylight-time bill." It implies we are seeing the inner workings of the General Assembly, revealed. But what we really see is just another curtain, and then another ...

The story rehashes much of what was posted here yesterday, leading up to Senator Garton's suggestion:

Garton suggested that daylight-saving time proponents try another tactic: Remove all the provisions of one bill and replace them with the daylight-saving time proposal. The maneuver is commonly called a “strip and insert,” and Alderman said he is likely to pursue it in committee next week.

He first must identify a Senate bill and get permission from its author to take that kind of step, but he said he was confident he could create a new home for daylight-saving time. * * *

House Speaker Brian Bosma, R-Indianapolis, said it was an “extraordinary” tactic to turn to. But he said it was worth trying in part because Democrats prevented votes on the daylight-saving time proposal and other House bills by boycotting the floor on the deadline day for legislation to clear its house of origin.

Even if it gets to the House floor again, it might not pass.

It is a polarizing issue among lawmakers and their constituents, and similar efforts to impose statewide daylight-saving time have failed at least 24 times over the past three decades.

If it passes the House, it would be sent to the Senate Rules Committee. Garton is chairman of that panel and said he would give it a full public hearing and a chance to advance to the full Senate.

This session marked the first time in 10 years that a bill mandating that all of Indiana change its clocks twice a year, as is done in 47 other states, made it to the floor of either chamber in the General Assembly. [emphasis added]

Actually, House rules make it more difficlt than outlined above to "strip" a Senate bill and insert new provisions. As noted in this 3/4/05 ILB entry:
The House Committee could "strip" the Senate bill and substitute different subject matter via a motion to "Strike everything after the enacting clause and insert in lieu thereof the following ...". However, this would require written consent of the Senate author and co-author(s) and the House sponsor and co-sponsor(s).
(The rule is House Rule 120, quoted in full near the end of this ILB entry from 3/2/05.)

So stripping a Senate bill in the House requires finding a Senate bill in the House authored/sponsored by perhaps four people, all of whom are willing to give up on this bill that has already passed the Senate. But in addition, what would be going into the bill that has already their names on it would be daylight savings time. How to achieve such consensus may be behind another curtain.

Other stories today on this topic: "Time-change effort keeps on ticking", a story by Jennifer Whitson in the Evansville Courier& Press; "New light shines on controversial bill," a story by Martin DeAgostino in the South Bend Tribune; "Daylight-saving proposal faces challenge in Indiana," a story by Lesley Stedman Weidenbener
in the Louisville Courier Journal.Her story has a good description of the obstacles:

Garton said stripping a Senate bill completely of its original language and then inserting the daylight-saving time mandate is the best option. That would occur in the House.

But it's no easy task.Before a bill could be stripped and the time amendment inserted, the authors and sponsors of the bill would have to consent in writing. Then, it would have to pass a House committee and survive a House vote.

"The governor believes there is a majority in the House to pass it," Bosma said. "But I wouldn't bet on that particular issue."

Even if it passes, the bill would be sent to the Senate Rules Committee -- whose chairman is Garton -- where it would receive a full hearing.

Then it could receive a committee vote, which Garton said would be close. After that it could go to the full Senate for consideration.

Finally, the Indianapolis Star has an editorial titled "Running out of time."

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

Ind. Courts - Tour of county courthouses is revealing

"Tour of county courthouses is revealing" is the headline to a story by Bob Gagen in the KPC News. He concludes his piece:

Despite variations in the courthouses viewed that day, and differences in their style and situation, all may be included in the following eloquent ode to “The Courthouse” found in William Faulkner’s novel, “Requiem For A Nun:”

“But above all, the courthouse: the focus, the hub; sitting looming in the center of the county’s circumference like a single cloud ... musing, brooding, symbolic and ponderable, tall as a cloud, solid as rock, dominating all."

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

Ind. Decisions - Justices restrict police searches of trash

Reporting on yesterday's Supreme Court decision in Patrick & Susan May Litchfield v. State of Indiana (3/24/05 IndSCt)[ILB entry here], Kevin Corcoran of the Indianapolis Star writes:

Criminal investigators can't root through Hoosiers' garbage on mere hunches of finding evidence, the Indiana Supreme Court ruled unanimously Thursday.

Writing for the high court, Justice Theodore Boehm set a new, higher legal standard in which police must offer specific, legitimate reasons for trash searches that include a reasonable expectation of turning up evidence.

"The police can no longer, out of curiosity, come out to see what's in your trash," Indianapolis defense attorney Robert Hammerle said after reviewing the ruling. "We now require more of police officers than we do of raccoons."

Hammerle said the Supreme Court essentially recognized that most people put their trash in opaque bags -- not clear plastic ones -- because they continue to have some expectation of privacy even after trash has been placed at the curb.

"You can tell a lot about a person from their trash," Hammerle said. "You can tell what they eat, where they shop. Police should not have unbridled access to all that."

See also this AP story.

Posted by Marcia Oddi on Friday, March 25, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions -- 7th Circuit posts two today

USA v. Grap, Daniel D. (ND Ill.) [14 pp.]

Before CUDAHY, EASTERBROOK, and WILLIAMS, Circuit Judges.
CUDAHY, Circuit Judge. Defendant Daniel Grap was indicted for one count of stealing firearms, in violation of 18 U.S.C. § 924(1), and for one count of possessing stolen firearms, in violation of 18 U.S.C. § 922(j). Grap pleaded guilty to the possession of stolen firearms count, but conditioned his plea on the right to appeal the denial of his motion to suppress physical evidence in the form of firearms recovered by a police officer in a warrantless search of his parents’ premises. In addition, things did not proceed smoothly for Grap at sentencing, where the district court applied two enhancements to his sentence based upon its findings that he was a “prohibited person” under the applicable statute and that he had possessed a firearm in conjunction with a felony other than the offense to which he had pleaded guilty. On appeal, Grap contends that the district court erred in denying his motion to suppress physical evidence since his mother lacked the requisite mental capacity to consent to a warrantless search. He also asserts that the enhancements to his sentence violate the Constitution under United States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005), since they were predicated on factual findings made only by the sentencing judge based only on a preponderance of the evidence. We affirm the denial of Grap’s motion to suppress, but order a limited remand for the purpose of allowing the sentencing judge to consider whether to reimpose his original sentence. * * *
Books, William A. v. Elkhart County (SD Ind., Robert L. Miller, Jr., Chief Judge) [27 pp.]
Before FLAUM, Chief Judge, EASTERBROOK and SYKES, Circuit Judges.
SYKES, Circuit Judge. This case tests the constitutionality of a display of the Ten Commandments on public property. The display in question is a framed text of the King James version of the Ten Commandments, one of nine historical texts and symbols that comprise a “Foundations of American Law and Government Display” in the County Administration Building in Elkhart County, Indiana. Authorized by resolution of the Elkhart County Board of Commissioners, the exhibit includes a selection of significant historical documents and symbols that, according to the resolution, “positively contribute to the educational foundation and moral character of the citizens of [Elkhart] county.” Evaluating the display under the three-part test of Lemon v. Kurtzman, 403 U.S. 602 (1971), the district court held that the inclusion of the Ten Commandments violates the First Amendment’s Establishment Clause because the County had no purpose other than “paying homage to the Ten Commandments,” a sacred religious text. The court ordered the County to remove the Ten Commandments from the display.

We reverse. The display satisfies the Lemon test and is therefore constitutional under the First Amendment. The County’s stated purposes—to educate its citizens in the history of American law and politics and provide moral uplift—are secular, and we see no good reason to doubt the County’s sincerity. Nor is the primary effect of the display to advance religion. The inclusion of the Ten Commandments in a multifaceted historical exhibit of texts and images that have influenced or symbolized American law and government cannot reasonably be understood as an endorsement of religion. * * *

III. Conclusion. In the first Books case we said that the Ten Commandments “no doubt ha[ve] played a role in the secular development of our society and can no doubt be presented by the government as playing such a role in our civic order.” Books, 235 F.3d at 302. It appears Elkhart County has taken us at our word by exhibiting the Ten Commandments in a comprehensive display along with other historical texts and images that it considers to be important influences in American legal and political tradition. We see no reason why the display as erected must be purged of the Ten Commandments to survive constitutional scrutiny. This is a secular display in its purpose and effect. The order of the district court is reversed and the case is remanded for entry of summary judgment for Elkhart County. REVERSED AND REMANDED

[p.23] EASTERBROOK, Circuit Judge, dissenting. My colleagues ask and answer the question whether inclusion of the Ten Commandments in a display at Elkhart’s County Administration Building endorses religion and thus transgresses the establishment clause of the first amendment, applied to state and local governments by the fourteenth amendment. I have serious doubts about the nature of the question, even on the supposition that the establishment clause affects states in the same way as the national government. See Elk Grove Unified School District v. Newdow, 124 S. Ct. 2301, 2330-31 (2004) (Thomas, J., concurring). “Endorsement” differs from “establishment.” A government does not “establish” milk as the national beverage when it endorses milk as part of a sound diet. * * *

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

Thursday, March 24, 2005

Courts - Major Indiana court software project on hold

"Major Indiana court software project on hold: The $93M effort was supposed to be ready for testing late in 2004" is the headline to a story today in ComputerWorld. Some quotes:

Management, usability and performance issues have delayed the implementation of a $93 million software automation project for the Indiana state court system, leaving some of the state's individual courts unsure about how to proceed.

The project, whose prime contractor is software maker Computer Associates International Inc., involves a core case management system (CMS) from CA and a linked financials module. Launched in 2002, the overhaul was slated to be ready for user acceptance testing late last year, with parts of it up and running by now. The project is being overseen by the Indiana Supreme Court Judicial Technology and Automation Committee (JTAC),

Largely because of problems in the financial system that were discovered during testing, the JTAC project team delayed the implementation for further study. In addition, the state has suspended payments to CA, and seven members of the team have been laid off. She said the state and CA are in a "concentrated re-evaluation" that, although "not planned for, is not entirely unexpected at this early stage of a project of this magnitude." During the next four to six months, the JTAC team will decide what, if any, additional requirements are needed. Then it can determine when the project will be completed, she said.

The largest challenges came from the financial module, Masterpiece, which clerks and court officials will use to process fines and perform other duties. Masterpiece is now part of ERP software vendor SSA Global Technologies Inc.'s portfolio. When first sold to JTAC, it was part of CA's business applications suite.

"Following the assessment of the application that had been delivered to JTAC from CA during the month of December, we had a collective gasp ... as to what we had and what we needed," said Mark Renner, the Marion County court administrator and a member of the governing board under the JTAC. Marion County was one of the initial testers of the system in December. * * *

According to Renner, other problems included a lack of clear communication about functional needs and requirements, failure to define the scope of the project and a lack of proper management from both CA and the JTAC personnel. That resulted in a CMS that is not as user-friendly as it should be.

In Marion County, which includes the city of Indianapolis and has the most end users of any county court, administrators are wondering whether they should upgrade their own 18-year-old legacy CMS or wait till the JTAC system goes live -- something Renner said could take two to three years.

Should Marion County move ahead and upgrade from its current mainframe to a .Net-based system, Renner said, the costs could run into the hundreds of thousands of dollars.

The delay in getting the JTAC system up and running is disappointing, said Clay County clerk Mary Brown. She said her administration might have considered rolling out its own CMS if it had known the implementation would be problematic. The postponement also means there will be three more years of data generated that will have to be entered by hand into the JTAC system. "I don't know what we'll do," Brown said. * * *

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

Law - More on "Local dispute over patient records makes national news"

The subject of an ILB entry earlier today, titled "Local dispute over patient records makes national news," was also the subject of an NPR feature broadcast this afternoon, "Planned Parenthood Fights Release of Medical Records." Access it here at NPR later today ("Audio for this story will be available at approx. 7:30 p.m. ET").

Posted by Marcia Oddi on Thursday, March 24, 2005
Posted to General Law Related

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

Here is the Indiana Supreme Court's transfer list for the week ending March 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 Thursday, March 24, 2005
Posted to Indiana Transfer Lists

Ind. Law - Duties of attorney to City Council to maintain confidentiality

The South Bend Tribune has a very interesting column today by Nancy J. Sulok about the ethical duties of the South Bend Common Council's attorney. Some quotes:

Charlotte Pfeifer, president of the South Bend Common Council, thinks the council's attorney should share information with her about everything the attorney is working on.

Doing so, according to council attorney Kathleen Cekanski-Farrand, would force her to violate two Rules of Professional Conduct. * * *

The problem was that Pfeifer and Cekanski-Farrand seemed to have different opinions about a verbal agreement they had reached after a series of one-on-one meetings.

One issue concerned the so-called 35-hour rule, which the council has observed for 10 years. It says that Cekanski-Farrand doesn't have to report her work for an individual council member to the full council until it reaches 35 hours.

The main bone of contention involved confidentiality. Cekanski-Farrand said when she does work for an individual council member, she treats it as confidential and doesn't share information without permission.

That rankled Pfeifer, who said she thought Cekanski-Farrand had agreed to report to her about everything she was working on.

If they didn't have that agreement, Pfeifer said, she didn't think she could support Cekanski-Farrand's continued service.

Cekanski-Farrand said she cannot go against court rules that govern privileged information and confidentiality.
One rule stipulates that "a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly (sic) authorized in order to carry out the representation,'' or the disclosure is permitted by other parts of the rule.

The second rule she cited deals with the client-lawyer relationship when an organization is the client. It says, "A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents,'' subject to provisions of other rules.

Posted by Marcia Oddi on Thursday, March 24, 2005
Posted to Indiana Law

Ind. Decisions - Supreme Court posts one today

Patrick & Susan May Litchfield v. State of Indiana (3/24/05 IndSCt) [Criminal Law & Procedure]
Boehm, Justice

We hold that a search of trash recovered from the place where it is left for collection is permissible under the Indiana Constitution, but only if the investigating officials have an articulable basis justifying reasonable suspicion that the subjects of the search have engaged in violations of law that might reasonably lead to evidence in the trash. * * *

In this case, it is undisputed that the seized trash was left in barrels on the property in its regular place for collection. The Litchfields therefore abandoned it and exposed it to the public. It seems clear that the police acted reasonably by quickly and quietly retrieving the trash from the place it was ordinarily collected without creating undue embarrassment or indignity. However, we cannot determine from this record whether the information supplied by the DEA enabled the state police to be reasonably certain that the Litchfields had responded to an advertisement in High Times, or merely informed the police that the Litchfields had purchased from a vendor that coincidentally had advertised in that publication. There may be other facts bearing on whether the officers possessed articulable individualized grounds for suspicion that the Litchfields were involved in illegal activity. At the time of the suppression hearing, we had not yet expressly adopted the requirement that a search of a person’s garbage be based on reasonable suspicion. There was no evidence presented on this issue and the trial court made no finding. We therefore remand this case to the trial court for a finding as to whether or not the officers possessed reasonable suspicion sufficient to obtain and search the Litchfield’s garbage.

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

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

Ind. Decisions - Court of Appeals posts two today

Scott Holder v. State of Indiana (1/26/05 IndCtApp) [Criminal Law & Procedure]
[Initially NFP]
Kirsch, Judge

Scott S. Holder brings this interlocutory appeal of the trial court’s denial of his motion to suppress evidence discovered in a search of his home. He contends that the evidence is inadmissible because it was obtained in violation of Article 1, Section 11 of the Indiana Constitution. We restate the relevant issue as: whether police officers performing an investigation act reasonably when, without first obtaining a warrant, they enter onto an individual’s property and position themselves near house windows in order to ascertain the source of an odor. We reverse. * * *

Here, Bruner testified at the hearing on the motion to suppress that he walked up a driveway past Holder’s residence to the backyard area to investigate whether there were ether cans near the pick up truck parked behind Holder’s house. After getting no response at the neighbor’s home, he noticed that a basement window in Holder’s home was cracked. He testified that he knelt down and smelled at the window. However, he did not testify as to how he positioned himself to accomplish this, other than that he was on Holder’s property at the time. Thus, the State did not establish whether Bruner stayed on a pathway or traversed Holder’s lawn or landscaping to access the window. Moreover, the record does not establish how far the window was from the areas of Holder’s yard that the public could be expected to use, nor does it show how close to the window Bruner came when he smelled at it. In short, it is simply unclear from the record before us that Bruner’s actions were reasonable, i.e, that he stayed in the areas which Holder could reasonably expect visitors and members of the public to use. Because the State failed to meet its burden to prove that Bruner’s actions were reasonable when he positioned himself to smell the odor emanating from the basement window, it failed to demonstrate that the officer’s actions comported with Section 11. Accordingly, the evidence obtained from the search should have been suppressed. Reversed.

ROBB, J., concurs with separate opinion. * * * Judge Baker’s dissent evinces a strong concern regarding the threat posed by the manufacture, sale, and use of methamphetamine. I share this same concern, but I do not feel that the threat posed by methamphetamine justifies allowing police officers to wander around a neighborhood searching for the source of an ether odor. Nor does it justify police officers entering onto private property without a search warrant and sniffing at the cracks of an individual’s basement window. I therefore concur with Chief Judge Kirsch.

BAKER, J., dissents with separate opinion.I respectfully dissent and must part ways with the majority’s decision to reverse the denial of Holder’s motion to suppress. In my view, Officer Bruner’s initial entry onto the premises was lawful, as was the warrantless entry into the house in light of the exigent circumstances that existed here. * * *

Note: This decision originally was issued as Not for Publication pursuant to Rule 65(A), which provides that a Court of Appeals opinion shall be published if it: (1) establishes, modifies, or clarifies a rule of law; (2) criticizes existing law; or (3) involves a legal or factual issue of unique interest or substantial public importance.

Jan Beckom, et al. v. David Quigley (3/24/05 IndCtApp) [Trusts & Estates; Torts ]
Riley, Judge

* * * The Beckoms present two issues for our review. First, they argue that Quigley was negligent in his duty to the Beckoms, as third party beneficiaries, by failing to ensure that they received Gene’s estate. Second, they claim that Quigley fraudulently rejected the Beckoms’ beneficiary status in order to reap the financial benefits that would be awarded to him by the probate court in administering the Taylor High School and Purdue University trusts. * * *

Based on the foregoing, we find that as a matter of law, attorney Quigley did not owe a duty to the Beckoms because they were unknown third-party beneficiaries under a will. We further find that the Beckoms fail to state a redressable claim with respect to their allegation that Quigley fraudulently interfered with the inheritance in order to reap a personal financial benefit. Therefore, we hold that the trial court properly granted summary judgment as a matter of law in favor of Quigley. Affirmed.
CRONE, J., and ROBB, J., concur.

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

Ind. Decisions - 7th Circuit posts four today

USA v. Rosas, Freddy (ED Wis.) [7 pp.]

Before BAUER, COFFEY, and SYKES, Circuit Judges.
PER CURIAM. * * * That leaves only Rosas’ argument under Blakely and Booker. While Rosas acknowledges that prior convictions used to enhance sentences need not be proven to a jury beyond a reasonable doubt, * * * he contends that it is the nature, not the mere existence, of a previous conviction that requires a jury determination. This argument is misguided because whether a previous offense constitutes crime of violence for purposes of sentencing enhancement is a question of law * * *. AFFIRMED.

USA v. Spano, Michael (ND Ill.) [10 pp.]

Before CUDAHY, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. * * * As we concluded in Paladino, the “only practical way . . . to determine whether the kind of plain error argued in these cases has actually occurred is to ask the district judge.” Paladino, 2005 WL 435430, at *10. To that end, we “order a limited remand to permit the sentencing judge to determine whether he would . . . reimpose his original sentence.” Id. If the district court determines that the defendants would have received the same sentences, we will conclude that the defendants were not prejudiced and the plain error challenge must fail. We will then affirm the original sentences, provided they are reasonable. See id. (citing Booker, 125 S. Ct. at 765).

On the other hand, if the district court decides that different sentences would have been appropriate in the exercise of greater discretion, “we will vacate the original sentence and remand for resentencing.” Paladino, 2005 WL 435430, at *10. Regardless of whether the district court decides to resentence the defendants, the court should abide by the process we set forth in Paladino to provide an appropriate explanation for its decision. See id.

II. Conclusion. For the foregoing reasons, we AFFIRM the defendants’ convictions. As to the defendants’ sentences, however, we order a limited remand of this case in accordance with the remedial procedure adopted by this circuit in Paladino. The district court is directed to return this case to us at the completion of its sentencing determination, pursuant to the procedure set forth in Paladino.

USA v. Melendez, Juan (SD Ill.) [11 pp.]

Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. For the foregoing reasons we AFFIRM the defendant’s conviction and liability in criminal forfeiture. While retaining jurisdiction, we order a limited remand of Melendez’s sentence in accordance with Booker, Paladino, and this opinion. The district court is directed to return this case to us when the limited remand has been completed.

Southern IL Carpenters Welfare Fund v. RFMS Incorporated (SD Ill.) [7 pp.]

ERISA case

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

Ind. Law - Impact of same sex marriage ban in Ohio and Michigan Constitutions may portend Indiana issues

Last Friday I published an entry titled "Impact of same-sex ban in Michigan constitution." It quoted several newspaper reports of the Michigan Attorney General's opinion saying that the amendment prohibited same-sex benefits offered by local governmental units.

Today the Cleveland Plain Dealer carries this report:

Ohio voters who approved a constitutional amendment last fall that denied legal recognition of unmarried and gay couples probably didn't envision the measure being successfully used as a defense in domestic violence cases.

But that became a reality Wednesday when Cuyahoga County Common Pleas Judge Stuart Friedman ruled that the amendment, approved by voters as Issue 1, made part of the state's domestic violence law unconstitutional.

Friedman said that because Ohio's domestic violence law recognizes the relationship between an unmarried offender and victim as one "approximating the significance or effect of marriage," it represents a direct conflict with the amendment's prohibition against such recognition and is thus unenforceable. * * *

County prosecutors argued that Issue 1 was not intended to negate the statute, and that the domestic violence law does not create any new legal status for unmarried persons.

"Judge Friedman's opinion misses the point. The constitution is not an invitation to strip legal protection from the most vulnerable in our community," Cuyahoga County Prosecutor William Mason said in an interview.

The county appealed Friedman's ruling Wednesday afternoon with the 8th Ohio District Court of Appeals.

Lewis Katz, a Case Western Reserve University law professor, said the legal battle could eventually reach the Ohio Supreme Court. He said that court may try to save the statute, and an effort will made by the state legislature to revise the law to make it constitutional.

Until then, he expects to see more lawyers raise the constitutional issue in domestic violence cases, and "judges bending over backwards to save the domestic violence statute from such attacks. "My own guess is that Judge Friedman is correct because the language of Issue 1 is so clear, it's hard to get around that," he added.

Here is the language of the pertinent Ohio constitutional provision:
Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.
Here is the link to a useful webpage that compiles the language of the various recent "defense of marriage" constitutional amendments.

Indiana's proposed amendment, SJR 7, passed the Indiana House Tuesday. Here is a quote from a story by Lesley Stedman Weidenbener in the Louisville Courier Journal:

The House yesterday approved an amendment to the Indiana Constitution that would ban same-sex marriage -- an early step in an effort that will span at least four years and require additional action by lawmakers and voters.

The amendment -- which also limits same-sex civil unions that have the full benefits of marriage -- must now be approved by a separately elected legislature, then go before the voters in a referendum. That could occur no sooner than 2008. * * *

Indiana -- like more than 40 other states -- already has a law that defines marriage as the union of a man and a woman. A group of same-sex couples filed a lawsuit challenging that law, but a trial judge and then the Indiana Court of Appeals upheld the state law and declined to legalize same-sex marriage. The couples decided not to appeal the decision.

Seventeen states, including Kentucky, have passed constitutional amendments banning same-sex marriage. Nine states are poised to vote on similar amendments next year.

Jennifer Whitson of the Evansville Courier& Press wrote:
Senate Joint Resolution 7 would not only bar any court from granting marriages to same-sex couples, it also would bar awarding any "legal incidences of marriage" to partners. Lawmakers said there are about 1,100 rights and responsibilities, such as inheritance rules or spousal support, that are tied to marriage. * * *

Indiana and most other states already have a law limiting marriage to one man and one woman, but 17 states have gone a step further and amended the ban into their constitution.

Amendment supporters say it is necessary to keep "activist judges" from throwing out Indiana's marriage law and requiring the state to recognize gay marriages. The Indiana Court of Appeals earlier this year upheld the Indiana law, but proponents of the resolution say that is no guarantee of future action.

Niki Kelly of the Fort Wayne Journal Gazette wrote:
The debate touched on the political ramifications of the vote and whether homosexuality is a choice. Some House members compared the amendment to discrimination from the past, including against biracial couples and Jewish people in the Holocaust.

“Somewhere along the line we have to draw some lines saying there is a standard we have to adhere to as a people,” said Rep. Woody Burton, R-Greenwood. “The sanctity of marriage is a sacred thing. It’s something we need to give a lot of serious thought to.”

Indiana already has a state law defining marriage as between a man and a woman, but proponents of the amendment contend it is needed to stop a judge from tossing the state law out on constitutional grounds. * * *

Rep. Win Moses Jr., D-Fort Wayne, said that different people have different ideas of the definition of marriage. He used the example of pop star Britney Spears, who married for a weekend, as well as Mickey Rooney, who is on his eighth marriage and Woody Allen, who married his adopted stepchild.

“We should be very careful because we go from protecting the sanctity of marriage to being very sanctimonious,” he said. “This amendment doesn’t give rights to everybody. It purposely takes them away. It turns (the Constitution) into a campaign poster.”

A quote from Brendan O'Shaughnessy's story in the Munster (NW Indiana) Times:
Much of the debate focused on the controversial second part of the Indiana amendment, which bars "the legal incidents" of marriage from being granted to same-sex couples. Those opposed said the phrase was ambiguous and could lead to lawsuits over unintended consequences for civil unions, company employee benefits and other extramarital relationships.
Mary Beth Schneider's story in the Indianapolis Star included these quotes:
"Today will go down as a day of shame in the history of the General Assembly," said Rep. David Orentlicher, D-Indianapolis. The public, he said, may not remember other bills lawmakers pass this year. But, he said, "they will not forget we wrote second-class citizenship for gays and lesbians into the constitution."

Rep. Craig Fry, D-Mishawaka, told his colleagues: "I believe marriage is between one man and one woman. I don't believe the constitution should be used for political wedge issues." And, he added, "I'm not a bigot."

Rep. Marlin Stutzman, R-Howe, told his colleagues he loved his uncle "who has chosen to live a homosexual lifestyle." But, he said, he was concerned about what kind of world his 3-year-old son would grow up in. Marriage, he said, has always been between one man and one woman and always should be. "It's not a political issue," he said, prompting scoffs from some Democrats.

The issue was a key part of some GOP campaigns for the House in 2004, as Republicans lambasted Democrats for not allowing a vote on the amendment last year.

Rep. Phil Hoy, D-Evansville, said he was vilified in the November election, his first. In that campaign, he was attacked with TV ads showing two grooms on top of a wedding cake and two men pushing a baby carriage. And, he said, he knows his vote against the amendment "will be used against me, again and again." But as the father of an adopted biracial child and the grandfather of five biracial grandchildren, he said, he could not vote for an amendment that he believes discriminates.

He and Rep. Win Moses, D-Fort Wayne, said an amendment goes too far. It not only defines marriage as between one man and one woman, it also says no law shall be construed to grant "the legal incidents of marriage" to any other couples -- words that Moses charged were just too vague. "If in fact we can't even define a constitutional amendment, how can we possibly pass it?" he asked. * * *

Indiana, like 43 other states, already has a law prohibiting gay marriage, and that law has been upheld by an Indiana appeals court. Turner noted that by the end of 2006, it is expected that 26 states will have passed constitutional amendments to ensure that a judge cannot overturn those states' laws.

Finally, this story by Martin DeAgostino in the South Bend Tribune includes a quote from the author of the amendment, Sen. Brandt Hershman, that illustrates (to me at least) how this amendment may confuse, rather than clarify, just as in Michigan and Ohio:
State law, passed in 1997, already limits marriage to one man and one woman. And while the Indiana Court of Appeals has upheld the law, social conservatives say only a constitutional provision can prevent endless future legal challenges.

"The basic unit of our society is the family," House sponsor Eric Turner, R-Marion, said. "The cornerstone of the family is marriage. Marriage is the union of one man and one woman."

But Senate Joint Resolution 7 does more than define marriage that way. It also says no Indiana law shall be construed to confer "the legal incidents of marriage" to unmarried people.

There are 1,138 such "rights and privileges of marriage," according to resolution author Sen. Brandt Hershman, R-Monticello, who cited the federal General Accounting Office. They include presumptive rights of inheritance, of parentage, of medical decisions and the disposition of joint property.

Hershman says the resolution would let lawmakers grant some such rights to same-sex partners or others. But once that basket of rights approximates those of married couples, he said, they would be subject to legal challenge.

Confusing? There is more. Here is a link to the GAO's list of (to quote from the Report's cover page): "1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges."

Posted by Marcia Oddi on Thursday, March 24, 2005
Posted to Indiana Law

Ind. Courts - Brizzi questions judge's impartiality

A story today in the Indianapolis Star by Vic Ryckaert reports:

Marion County Prosecutor Carl Brizzi said Wednesday that Judge Grant Hawkins opposes the death penalty, and that's why Brizzi wants another judge to preside over the trial of an accused child killer.

"The appearance of a bias will erode the public confidence in a fair and impartial judiciary," Brizzi said. "The only way to fix it is for (Hawkins) to recuse himself and have another judge hear the case."

In documents filed Wednesday, Brizzi asked Hawkins to hand the death penalty trial of Jeffrey Voss to a different judge. Voss is accused in the Christmas Eve abduction, rape and murder of 12-year-old Christina Tedder. Brizzi cited Hawkins' past rulings and public statements as proof the judge believes Indiana's death penalty law is unconstitutional.

Before winning his seat on the bench, Brizzi said, Hawkins was found to have provided ineffective representation for two defendants in death cases; both men successfully appealed their death sentences. "All that taken as a whole shows an appearance of bias," Brizzi said. * * *

Since donning the robes in 2001, Hawkins has twice overturned death penalty cases. Each time, he's been overruled.

In September 2001, Hawkins ruled the state law unconstitutional and threw out the death penalty against Charles E. Barker, who was found guilty in the 1993 murders of Francis and Helen Benefiel in Indianapolis. The Indiana Supreme Court overturned Hawkins in April 2002.

In June 2003, Hawkins again found Indiana law unconstitutional, this time dismissing the death penalty against Barker and Chijoike Bomani Ben-Yisrayl, convicted in September 1984 of the murder and rape of Debra Weaver, 21, who was abducted from her Northeastside home.

Hawkins ruled that a provision in Indiana law giving judges the power to overturn a jury's verdict didn't jibe with U.S. Supreme Court rulings. Indiana lawmakers have since changed the death penalty statute, making the jury's decision final. * * *

Judge Jane Magnus-Stinson, a member of the county's three-judge executive committee, said judges make decisions based on the law, not their viewpoints. "As trial judges, we have to make those calls on an ongoing basis before the Supreme Court ever weighs in," she said. "Sometimes we're right and sometimes we're wrong."

"We're imposing a legal interpretation, not a personal moral view," she said. "And that's what we're paid to do."

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

Ind. Gov't. - Deer action shot down

Niki Kelly of the Fort Wayne Journal Gazette has a story today that reports:

The new director of the Indiana Department of Natural Resources blocked an attempt Wednesday to remove the DNR’s authority over captive deer, elk and other cervidae livestock operations.

Some conservation groups fear such a move would hinder the DNR’s ability to enforce hunting regulations on preserves that allow hunting of captive white-tailed deer behind a game-proof fence.

The House Agriculture and Rural Development Committee first adopted an amendment moving all regulation of deer, elk, moose, reindeer and caribou farms to the Indiana State Board of Animal Health.

The DNR would have had no authority under the amendment, which was offered by Howe Republican Rep. Marlin Stutzman.

But after DNR Director Kyle Hupfer testified against the amendment, it was quicklyremoved. Hupfer said he was surprised his office was not contacted about the amendment beforehand, noting earlier cooperation from all sides of the issue on House Bill 1780, which died during the walkout by House Democrats.

“I am at a loss that the DNR was not consulted at all,” he said. * * *

Don Blinzinger, on behalf of the Indiana Deer Farmers Association, said the amendment is not about the 10 hunting preserves but about the 350 entities in the state that operate as deer farms, including selling their meat and other byproducts.

“Why is DNR not in this bill? Because they have no authority or responsibility to exert control over private property,” he said. “There is nothing the least bit sinister about this amendment. There is nothing the least bit underhanded about this amendment

“This draws a bright line between the 340 that farm as opposed to the 10 that do other things. I’m not the least bit interested in dealing with the other 10.”

Testimony in previous hearings has been that deer farms and canned-hunting preserves are intertwined because the farmers sell their deer to the hunting preserves.

Although Stutzman repeated several times that the change is needed to protect the health of the animals, Hupfer pointed out the State Board of Animal Health has been overseeing deer behind fences for years.

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

Law - Local dispute over patient records makes national news

Last week two related stories were published, both on Tuesday, March 15th. The Indianapolis Star published a story by Michele McNeil headed "Planned Parenthood, state spar over files: Attorney general seeks dozens of patient records." It began:

Attorney General Steve Carter is demanding the medical records of 73 low-income patients from Planned Parenthood of Indiana as part of an investigation that critics say tramples on Hoosiers' privacy rights.

Planned Parenthood filed a lawsuit Monday in Marion Superior Court to prevent Carter's Medicaid fraud unit from seizing confidential medical records of patients under the age of 14 who sought reproductive health care from its clinics. * * *

Carter, in a statement, said he's using the powers of the Medicaid Fraud Control Unit to investigate whether Planned Parenthood's clinics are following the law by reporting cases of children who are having sex before they turn 14. In Indiana, sexually active children under that age are considered to be victims of rape or molestation.

Carter said his office is "obligated under federal and state statutes to investigate allegations of abuse and neglect by Medicaid providers, which include hospitals, nursing homes and other medical clinics that receive Medicaid reimbursement from the state." * * *

Carter's investigation and Planned Parenthood's response push Indiana into the middle of a developing national debate over government access to reproductive health records.

Last month, two abortion clinics in Kansas sued to stop that state's attorney general from seeking medical records of women who have had late-term abortions.

And last year, federal courts blocked then-U.S. Attorney General John Ashcroft's push to get medical records of women who received late-term abortions, also called "partial-birth" abortions.

Also on March 15th the Washington Post published a lengthy story headlined "Kansas Abortion Clinics Fight Data Request: Criminal Inquiries Trump Issues of Privacy, State Says." Some quotes:
Two Kansas clinics are opposing efforts by the state's attorney general to obtain the medical records of more than 80 women who received late-term abortions in 2003.

The attorney general, Phill Kline, has argued that he is looking for evidence of child rape and violations of a state law restricting abortions performed after 22 weeks of pregnancy. But clinic supporters contend Kline is on a fishing expedition that invades patients' privacy and is making a calculated effort to hamper the clinics from performing abortions. * * *

Last year, former U.S. Attorney General John D. Ashcroft sought abortion records from hospitals and Planned Parenthood clinics in several states as part of the government's defense of the Partial Birth Abortion Ban Act, which Congress passed in 2003. The Justice Department asked for hundreds of files, with names blacked out, saying it was necessary to learn whether late-term abortions were medically necessary.

U.S. District Judge Charles P. Kocoras, deciding a challenge by Chicago's Northwestern Memorial Hospital, was among several judges who ruled against Ashcroft. His opinion was upheld on appeal. He called abortion "one of the most controversial decisions in modern life."

"An emotionally charged decision will be rendered more so," Kocoras wrote, "if the confidential medical records are released to the public . . . for use in public litigation in which the patient is not even a party."

Today the Fort Wayne Journal Gazette is carrying an AP story by Sam Hananel that reports:
WASHINGTON – Planned Parenthood officials Wednesday denounced prosecutors in Kansas and Indiana for trying to seize patient medical records from clinics, calling the actions a coordinated attempt to intimidate health care providers and patients.

“What we are witnessing today is an alarming and escalating attack on medical privacy across the country,” said Karen Pearl, interim president of the Planned Parenthood Federation of America. “Politicians with rigid anti-choice agendas are trying to rip apart the covenant that we have as providers with our patients.”

Pearl said the latest efforts are part of a trend by politically motivated, anti-abortion prosecutors who want to scare women away from seeking care that is protected by the Constitution.

The actions in Kansas and Indiana follow an unsuccessful attempt last year by then-U.S. Attorney General John Ashcroft to subpoena abortion records from several Planned Parenthood affiliates as part of the government’s defense of a new law barring certain late-term abortions.

Kansas Attorney General Phill Kline, an ardent abortion opponent, has denied any political motivation. He is demanding two abortion clinics turn over the medical files of about 90 women and girls, saying he needs the material for an investigation into child rape and potentially illegal late-term abortions.

The clinics are fighting Kline’s request on privacy grounds and have asked the Kansas Supreme Court to block the subpoenas or restrict their scope.

In Indiana, Planned Parenthood sued the state last week to stop the seizure of its clients’ medical records, saying investigators were on a “fishing expedition,” possibly to identify the partners of sexually active 12- and 13-year-olds. The records do not cover patients seeking abortions, but other services.

The lawsuit filed in Indianapolis seeks temporary and permanent injunctions barring Attorney General Steve Carter and his Medicaid Fraud Control Unit from searching the private records of clients at 40 Planned Parenthood clinics across the state. Like Kline, Carter says he is investigating reports of sexual abuse against minors.

Finally, today in the Indianapolis Star is a column by Ruth Holladay titled "Quest for Planned Parenthood files firmly rooted in law."

Posted by Marcia Oddi on Thursday, March 24, 2005
Posted to General Law Related

Ind. Law - Bringing daylight savings time back to life

An AP story today by Mike Smith appears today in the Evansville Courier& Press with the headline "Republicans look to revive daylight-saving plan: Measure might be added to tobacco bill." Some quotes:

INDIANAPOLIS -- Daylight-saving time and the shipment of tobacco products might not seem to have much in common. But they might end up in the same legislation if a state lawmaker has his way. * * *

Rep. Robert Alderman, chairman of the House Public Policy Committee, said he hopes to amend the proposal into a bill dealing with sales of tobacco products during a meeting of his panel today.

The Senate bill would prohibit the shipments of tobacco products other than cigars to an Indiana resident who is not a tobacco distributor. He said that, since daylight-saving time and the tobacco provisions both deal with state administration, they could be in the same bill. * * *

Provisions in bills that are killed during the legislative process can sometimes be revived by amending legislation that remains alive.

But House and Senate rules require amendments to be relevant to the original legislation. The GOP-controlled Senate is very strict in following such rules, which dooms many attempts to revive legislation.

Gov. Mitch Daniels, a strong proponent of statewide daylight-saving time, had acknowledged that such rules would make it difficult to find a new home for the proposal. Republican leaders in the House and Senate have said the same, and Senate President Pro-Tem Robert Garton, R-Columbus, is especially adamant that amendments be relevant to an original bill.

Alderman said he believes there would be enough votes on his committee to amend the bill, but he acknowledged that the move might not pass muster with Garton's interpretations of amendment rules. If it does not, the daylight-time provisions could be doomed even if they are added to the tobacco bill and it passes the House.

Talk about the "straight face" test ...

Meanwhile, Mary Beth Schneider of the Indianapolis Star has a more recent report that says the plan "to resuscitate the time-switch bill" by placing it in "Senate Bill 379, [which] prohibits the shipping of tobacco products, other than cigars, to anyone who isn't a tobacco distributor", is no longer alive:

That plan fell apart late Wednesday after Senate President Pro Tempore Robert D. Garton, R-Columbus, said the issues were too dissimilar to meet constitutional requirements that bills be germane.

"Oh no," Garton said. "I think I could give this to a fourth-grader studying Indiana government and they'd say there's no relationship."

Garton said he's willing to try to help find a home for the bill and said a better route would be to completely strip out another bill's contents to replace them with the daylight-saving time provisions.

That, Torr said, is now Plan B. He's identified two or three possibilities and expects to resurrect the time issue in one of those bills next week at a meeting of the House Public Policy and Veterans Affairs Committee.

The chairman of that committee, Rep. Robert Alderman, R-Fort Wayne, said he's eager to help save the effort to have Indiana join the 47 other states that observe daylight-saving time. "You've got to remember," said Alderman, a former policeman, "I know CPR."

It looks like Senator Garton has provided a roadmap of what will be acceptable in the Senate.

Posted by Marcia Oddi on Thursday, March 24, 2005
Posted to Indiana Government | Indiana Law

Ind. Gov't. - Public records issues in Lake County

"Copying fee under review: Town attorney to study $5 charge for crime reports," is the headline to this story in the Munster (NW Indiana) Times by Susan Brown. Some quotes:

MUNSTER | Town Attorney Eugene Feingold said Wednesday he will review the Indiana Access to Public Records Act to determine the legality of Munster's $5 copying fee for crime records.

Feingold said he may have been consulted by town officials, but does not recall being involved in the initial review.

"It's usually done in-house," he said.

In the meantime, Munster police clerks continue to charge the $5 fee.

"The Town Council passed the fee structure," Police Chief Nick Panich said. "That's what we've been told to collect. I can't go ahead and change it."

Indiana Public Access Counselor Karen Davis found the town's $5 flat fee to be in violation of the statute.

"The $5 fee per incident is excessive under the Access to Public Records Act," Davis wrote last week in an informal opinion.

Davis said state law doesn't allow a fee in excess of the actual cost of copying unless a separate statute authorizes a different fee. Copying fees generally run between a nickel and 10 cents a page. A set fee is not consistent with the statute.

At the same time, Davis provided a copy of a previous ruling allowing a $25 copying fee for accident reports. The difference: Indiana law mandates police departments charge a fee of not less than $3 for each accident report but does not set a maximum.

Munster's $25 rate may be the highest in the state, according to the Indiana Farm Bureau, which is the parent company of Indiana Farm Bureau Insurance. The organization's spokesperson, Liz Reynolds, said the fee was the highest the group has encountered.

Griffith police do not charge a fee for copying crime reports, while Highland police charge 10 cents per page only after the first 10 pages. Both towns charge $6 for copying accident reports.

A second story today in the Times, also by Susan Brown, is headlined "Munster public records policy questioned: New resolution restricts 13 types of documents." Some quotes:
Public access experts are questioning the action of the Munster Town Council, which collectively closed the door on 13 types of public records the state considers discretionary.

"It ties their hands where they don't need to have their hands tied," Indiana Public Access Counselor Karen Davis said.

Previous to the adoption of last week's resolution, the decision to open those records was made on a case-by-case basis and up to the discretion of an individual public agency. The resolution, in effect, takes away that discretion and automatically closes the records. * * *

[T]own officials say the resolution was driven by a recognition of the public's interest in protecting its privacy and avoiding identity theft.

"That was our attempt to maximize the protection to our citizens from those motivated by the unacceptable dissemination of Social Security numbers or Visa account numbers," said Clerk-Treasurer David Shafer, who is the official holder of the town's records.

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

Wednesday, March 23, 2005

Law - Running for judge in North Dakota

A press release just received from James Bopp, Jr, Terre Haute, reports "North Dakota Judicial Conduct Rules Held Unconstitutional." Some quotes:

A North Dakota federal court held yesterday that two canons based on the American Bar Association’s 1990 Model Code of Judicial Conduct were unconstitutional. The court held that provisions of North Dakota’s Code that forbid judicial candidates from making “pledges or promises” of conduct in office or to “commit or appear to commit” candidates to decide a case violate the First Amendment because they forbid judicial candidates from announcing their views on disputed legal and political issues. * * *

According to James Bopp, Jr., lead counsel for the plaintiffs, the North Dakota rules “contradict the U.S. Supreme Court’s decision, which clearly stated that judicial candidates have a right to respond to surveys like this and that voters have a right to hear what they have to say.” Bopp, who argued the case challenging the Minnesota judicial rule struck down by the U.S. Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), stated that North Dakota’s rules and policy were being interpreted to “cover the same unconstitutional ground” as Minnesota’s rule that prohibited judicial candidates from announcing their views had done.

“The North Dakota decision underscores the broad scope of the White decision,” said Bopp. “It doesn’t just apply to rules that specifically forbid judicial candidates from announcing their views, but to any rule that forbids judicial candidates from expressing their opinions.”

The district court agreed, stating that the “First Amendment guarantees voters the right to obtain the information they desire, and to decide what information may be relevant in determining whom to elect to the bench.” According to the court, “because North Dakota has chosen to select its judges by popular election, the State may not impermissibly restrict the constitutionally-protected speech of judicial candidates.” The court did, however, uphold provisions of North Dakota’s law requiring judges to recuse themselves from proceedings in which the judge’s impartiality “might reasonably be questioned.”

See earlier related ILB entries, titled variously "Running for Judge in .. (Kentucky/Indiana/Illinois)" from 2/3/05, 10/23/04, 10/20/04, 10/6/04, and 10/2/04.

A similar suit has been filed by Bopp in Indiana on behalf of Indiana Right to Life in federal court in Lafayette.

Here is a copy of the North Dakota opinion.

Posted by Marcia Oddi on Wednesday, March 23, 2005
Posted to General Law Related | Indiana Courts

Ind. Decisions - Court of Appeals posts two today

Donald W. Hedger v. State of Indiana (3/23/05 IndCtApp) [Criminal Law & Procedure]
May, Judge

Donald W. Hedger appeals the sentence he received after he pled guilty to cruelty to an animal, a Class D felony. He argues his sentence was inappropriate and the trial court failed to properly consider mitigating and aggravating circumstances. He contends the trial court should have followed the sentencing recommendation presented by the State. * * *

Hedger argues the trial court should have accepted the State’s oral sentencing recommendation. However, his guilty plea agreement included no specific sentence term. In that instance, the trial court was not bound to follow the State’s oral sentence recommendation. See Walker v. State, 420 N.E.2d 1374, 1378 (Ind. Ct. App. 1981) (parties are free to negotiate a “nonbinding” sentence recommendation and rejection of an entire plea agreement is not mandatory when the trial court does not accept such “nonbinding” sentence recommendation). Affirmed.
BARNES, J., and DARDEN, J., concur

John E. Wilhelmus v. State of Indiana (3/23/05 IndCtApp) [Criminal Law & Procedure]
Crone, Judge
* * * Issues. Wilhelmus presents three issues for our review, which we restate as: I. Whether the trial court properly granted the State’s Indiana Criminal Rule 4(D) motion to continue the jury trial; II. Whether the trial court abused its discretion under Indiana Evidence Rule 404(b) by admitting evidence of Wilhelmus’s prior arrest; and III. Whether the trial court violated Indiana Code Section 35-38-1-6 by entering judgments of conviction and sentences on both attempting to manufacture and manufacturing methamphetamine. * * * Affirmed.
RILEY, J., and ROBB, J., concur

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

Ind. Decisions - 7th Circuit posts one today

Dalton, Lawrence v. Battaglia, Deirdre (ND Ill.) [18 pp.]

Before EASTERBROOK, KANNE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Eight years after he pleaded guilty to charges of murder and rape, Lawrence Dalton filed a post-conviction petition in the Circuit Court of Cook County, Illinois. Dalton argued that his due process rights were violated because he was unaware of his eligibility for an extended sentence under Illinois law when he submitted his plea and thus his plea was not knowing and voluntary. Later, Dalton also claimed that his Sixth Amendment right to effective assistance of counsel had been violated when his trial attorney failed to request a competency hearing after he attempted suicide two days before pleading guilty. After the state courts finally rejected his claims, he filed a timely petition for relief under 28 U.S.C. § 2254.

It is now twenty-three years after Dalton’s plea hearing and conviction. Undoubtedly in part because of the passage of time, Dalton’s habeas corpus petition comes to this court accompanied by a state court record missing more than it includes. At some point during the state court proceedings, the transcript of Dalton’s plea hearing disappeared. Then, in the midst of his appeal from the denial of his post-conviction petition, the state destroyed the remaining records of his proceedings before the circuit court. The state now asks that we construe the gaps in the record against Dalton and deny his request for § 2254 relief on his due process claim on this basis, notwithstanding his submission of two affidavits stating that he was not made aware of his eligibility for an extended sentence at the time of his plea. In the circumstances of this case, however, such an approach is inappropriate. Instead, we remand for an evidentiary hearing on the question whether Dalton knew that he was eligible for such a sentence when he pleaded guilty. Dalton also asks that we expand his certificate of appealability to include his ineffective assistance of counsel claim, but we conclude that he is not entitled to this additional measure.

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

Law - High court's cell tower ruling favors cities

"High court's cell tower ruling favors cities: Decision eases permit pressure on local governments" is the headline of a David Savage story today in the LA Times and other papers. Some quotes:

WASHINGTON -- The Supreme Court made it easier yesterday for cities to say no to new cellphone towers in their neighborhoods.

In a 9-to-0 ruling, the justices said the federal law that was designed to encourage the growth of the telecommunications industry does not allow cities to be sued for damages for refusing to permit a cell tower.

In the past decade, 140,000 cellphone towers have sprouted up in the United States, but the phone industry says it needs more of them to eliminate ''dead spots."

The court's decision will take some of the pressure off local governments to approve permits for new cell towers, although it does not mean they can refuse all of them.

The case is City of Rancho Palos Verdes v. Abrams, available here via Findlaw.com.

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

Ind. Decisions - Court: College costs can't impoverish father

"Court: College costs can't impoverish father. Grad school payment order leaves divorced dad with $7,070 to live on, appeals panel says." That is the headline today to this Indianapolis Star story by Richard D. Walton on the Court of Appeals decision yesterday in Bruce A. Snow v. Anita F. Rincker (3/22/05 IndCtApp). The opinion, by Judge Baker, begins: "'Poverty is no disgrace to a man, but it is confoundedly inconvenient.' Sydney Smith, from His Wit and Wisdom."

Walton writes:

Divorced parents may be made to pay a share of their child's educational expenses, but the payments cannot force a parent into poverty, the Indiana Court of Appeals said Tuesday.

The panel agreed with Madison County resident Bruce Snow, who claimed that a court order that he pay most of daughter Meghan's remaining college costs was unreasonable, given the body shop worker's annual income of $41,700. The court ordered that the amount be recalculated.

The dispute began in August 2003 when Snow's ex-wife, Anita Rincker, went to court to force Snow to begin contributing to the school costs. Until then, the burden had been borne by Rincker, who took out a $50,000 loan, and by her daughter, who obtained student loans.

A Madison Superior Court judge ordered Snow to pay 59 percent of Meghan's expenses at St. Louis University for 2003-04, or about $15,600. Snow was further told to pay for part of his daughter's effort to obtain advanced degrees in the amount, over two school years, of nearly $39,000.

The high court [court of appeals]figured that assuming Snow's wages remain relatively static, his obligation for just one of those additional years (plus a summer session) would leave him with $7,070 on which to live. This is below the 2004 poverty level for a one-person household, the appeals court said in a majority opinion.

"It was an abuse of discretion for the trial court to plunge a father into poverty to pay for a degree that could be earned at a less expensive, state-supported university," the court said.

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

Tuesday, March 22, 2005

Biotech - Purdue researchers find plants can fix bad genes

"Startling Scientists, Plant Fixes Its Flawed Gene" is the headline to this story today in the NY Times. The lead:

In a startling discovery, geneticists at Purdue University say they have found plants that possess a corrected version of a defective gene inherited from both their parents, as if some handy backup copy with the right version had been made in the grandparents' generation or earlier.

The finding implies that some organisms may contain a cryptic backup copy of their genome that bypasses the usual mechanisms of heredity. If confirmed, it would represent an unprecedented exception to the laws of inheritance discovered by Gregor Mendel in the 19th century. Equally surprising, the cryptic genome appears not to be made of DNA, the standard hereditary material.

The discovery also raises interesting biological questions - including whether it gets in the way of evolution, which depends on mutations changing an organism rather than being put right by a backup system. * * *

The result, reported online yesterday in the journal Nature by Dr. Robert E. Pruitt, Dr. Susan J. Lolle and colleagues at Purdue, has been found in a single species, the mustardlike plant called arabidopsis that is the standard laboratory organism of plant geneticists. But there are hints that the same mechanism may occur in people, according to a commentary by Dr. Detlef Weigel of the Max-Planck Institute for Developmental Biology in Tübingen, Germany. Dr. Weigel describes the Purdue work as "a spectacular discovery."

The finding grew out of a research project started three years ago in which Dr. Pruitt and Dr. Lolle were trying to understand the genes that control the plant's outer skin, or cuticle. As part of the project, they were studying plants with a mutated gene that made the plant's petals and other floral organs clump together. Because each of the plant's two copies of the gene were in mutated form, they had virtually no chance of having normal offspring.

But up to 10 percent of the plants' offspring kept reverting to normal. Various rare events can make this happen, but none involve altering the actual sequence of DNA units in the gene. Yet when the researchers analyzed the mutated gene, known as hothead, they found it had changed, with the mutated DNA units being changed back to normal form. "That was the moment when it was a complete shock," Dr. Pruitt said.

The LA Times has a story headlined "Plants Can Fix Bad Genes, Study Shows." The lead:
Upending prevailing genetic theory, a team of scientists at Purdue University has discovered a mechanism in plants that allows them to correct defective genes from their parents by tapping into an ancestral data bank of healthy genetic material.

In essence, the plants back up the evolutionary path and use past genes to restore traits that would otherwise be lost, according to a study published Tuesday in the online version of the journal Nature.

The finding proposes "an extraordinary view of inheritance," the scientists said in their paper.

The Washington Post story is headlined: "Plants Fix Genes With Copies From Ancestors." The lead:
Plants inherit secret stashes of genetic information from their long-dead ancestors and can use them to correct errors in their own genes -- a startling capacity for DNA editing and self-repair wholly unanticipated by modern genetics, researchers said yesterday.

The newly discovered phenomenon, which resembles the caching of early versions of a computer document for viewing later, allows plants to archive copies of genes from generations ago, long assumed to be lost forever.

Then, in a move akin to choosing their parents, plants can apparently retrieve selected bits of code from that archive and use them to overwrite the genes they have inherited directly. The process could offer survival advantages to plants suddenly burdened with new mutations or facing environmental threats for which the older genes were better adapted. * * *

"We think this demonstrates that there's this parallel path of inheritance that we've overlooked for 100 years, and that's pretty cool," said Robert E. Pruitt, a professor of botany and plant pathology at Purdue University in West Lafayette, Ind., who oversaw the studies with co-worker Susan Lolle.

The finding represents a "spectacular discovery," wrote German molecular biologists Detlef Weigel and Gerd Jurgens in a commentary accompanying the research in tomorrow's issue of the journal Nature, released yesterday. The existence of an unorthodox inheritance system does not overturn the basic rules of genetics worked out by Austrian monk Gregor Mendel in the 1800s, they noted. But like a newly discovered room in a mansion of treasures, it opens up a mind-boggling world of possibilities and proves that genetics is still a young science.

Here is the Nature news release. The article itself is unfortunately subscription only.

Posted by Marcia Oddi on Tuesday, March 22, 2005
Posted to Biotech | Indiana economic development

Ind. Law - Indiana not immune to life-or-death battle

"Indiana not immune to life-or-death battle" is the headline to this story today in the Indianapolis Star. It begins:

Hospitals in the Indianapolis area all have policies to help families avoid gut-wrenching fights similar to the Terri Schiavo case in Florida, but officials say the very same thing could happen here.

"What would we do if we faced that?" asked Steven Ivy, senior vice president for values, ethics and pastoral services at Clarian Health. " 'I don't know' is the honest answer."

Medical professionals can only urge people to make their wishes clear, in writing or otherwise, he said. While that doesn't guarantee disputes will be avoided, it's the best first step.

A case like Schiavo's could end up in the courts in Indiana if hospitals' efforts at guiding and assisting families fail and if family members are irreconcilably split on what to do, local hospital officials agreed.

Indiana law doesn't designate the relative who can offer "substitute judgment" on health care decisions for a person who becomes incapacitated. The law lists "parent, spouse, adult child or adult sibling" without assigning any priority.

Because those relatives are not ranked, said Dr. Gregory P. Gramelspacher, an associate professor at Indiana University School of Medicine, it wouldn't automatically be clear who could make the final decision in case of disagreement.

The story includes a useful sidebar of local hospitals' policies.

[Thanks to Kemplog, as I had totally missed this story about Indiana law.]

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

Environment - Several local stories today

The Richmond Palladium-Item reports that "Sewer bills could more than triple" in West College Corner, Indiana. Some quotes:

Residents were stunned Monday when they heard average sewer bills here could hit $82 a month if the town doesn't qualify for a federal grant for improvements to its wastewater system.

Grant money, though, likely will be available to this low-income community to lower monthly bills to $50 to $60. That's still a big increase for residents who currently pay about $23 a month for 4,000 gallons of sewage.

Some residents also might have to replace service lines between their homes and the street if their lines are leaking. * * *

The treatment plant in West College Corner serves that town and College Corner, Ohio. The plant will be sized to accept sewage from Cottage Grove, Ind., if it chooses to.

The plant had 175 violations of its wastewater permit in 2003, engineer John Graf told the 50 people who attended Monday's hearing. Its treatment plant was designed for 240,000 gallons of sewage a day, but sometimes receives 1 million gallons a day because of infiltration, Graf said.

The town has been under an agreed order since 1996 with the Indiana Department of Environmental Management to upgrade its plant. A seven-year lawsuit with College Corner, Ohio, over sewer rates, a suit that was settled in 2003, delayed improvements because the Indiana town couldn't get financing until the suit was settled.

The Munster (NW Indiana) Times has this opinion piece titled "Contact IDEM about burning scrap oil" by John Walters Griffith:
Walsh & Kelly Inc. has an asphalt plant in Griffith. On Dec. 12, the company requested a variance from the Indiana Department of Environmental Management to begin burning waste oil rather than natural gas, as current law requires. Their reason is to save a few bucks. In actuality, they began burning scrap oil last summer.

IDEM has preliminarily approved this request, effective March 22. By Walsh & Kelly's own admission, this will result in the release of 42 pounds per hour of sulfur dioxide into the atmosphere. It seems ironic that while we are learning of the devastating health consequences of sulfur dioxide and trying to reduce these emissions, IDEM would approve this.

I urge anyone in Lake County to contact IDEM in Merrillville and voice their outrage.

And one more for today's litany, this one from The Commercial Review, "Jay County's Daily Newspaper." Some quotes:
More pressure from a state agency regarding failing septic systems in homes southwest of Portland may result in Jay County Commissioners pushing back.

Brad Burkett, attorney for Jay County Commissioners, said this morning that he does not believe the county is in any way liable for septic system discharges from the homes that contaminated the Salamonie River late last summer.

In October, the county was cited by the Indiana Department of Environmental Management for an incident that apparently emanated in the Foxfire addition along county road 125 South, south of Jay County High School.

In February, the county was threatened with a $25,000 per day fine if action is not taken to solve the problem.

Commissioners’ president Milo Miller Jr. showed fellow commissioners Gary Theurer and Faron Parr a letter he recently received from IDEM.

The letter said that IDEM was requesting a meeting with Miller and Dave Houck, environmentalist/administrator for the Jay County Health Department.

Burkett contacted Dave Knox, an IDEM employee, by phone this morning.

“What’s the basis for ... Jay County being responsible for these people’s sewage going into the river?” Burkett asked Knox. “Why isn’t it the private landowner’s responsibility?”

Burkett said Knox invited Burkett and Miller to a meeting at IDEM headquarters in Indianapolis. Burkett countered that he believed IDEM representatives should come to Jay County. * * *

A spokesperson from IDEM said in October that Jay County was cited in this incident because it has oversight over the county health department.

Possible solutions to the problem could include hooking up homes in the area to the Portland sewage system, and/or forming a sanitary sewer district.

The closest access to city sewer lines is at Sheffer Acres West and Jay County High School. Because of topography and distance, the sewer line extension will most likely have to be pressurized.

According to this IDEM press release:
IDEM has issued NOVs to these operations:

· Gulley's Auto Salvage, RR 1, Box 626, Francisco (Gibson County)
· GW Pierce Auto Parts, 22275 US 31, Cicero (Hamilton County)
· John Ridge Property, 407 West 9th Street, Sheridan (Hamilton County)
· Parker Auto Parts of Vincennes, Inc., 1601 S. 15th Street, Vincennes (Knox County)
· I-94 Auto Recyclers, Inc., 2994 Burr Street, Gary (Lake County)
· Illiana Scrap and Core, Inc., 224 Chicago Avenue, Hammond (Lake County)
· Bloomington Auto Parts, 7650 North SR 37, Bloomington (Monroe County)
· Bud & Son's Auto Salvage, 510 W. Walnut Place, West Terre Haute (Vigo County)

Each Notice of Violation outlines specific environmental problems that the agency believes the facility must correct and requires the recipient to present IDEM with an acceptable plan for preventing future violations. There is a potential for penalties, as well.

"We at IDEM prefer to put our efforts toward working with businesses and providing them with the technical assistance they need to understand and comply with environmental regulations," said [Commissioner Tom] Easterly. "But, we will take action against anyone whose disregard for compliance presents a threat to public health and the environment."

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

Ind. Decisions - Supreme Court posts one today

Patricia Gribben v. Wal-Mart Stores, Inc. (3/22/05 IndSCt) [Torts; Spoliation]
[Certified Question from the USDC, SD Ind., The Honorable V. Sue Shields, Magistrate Judge]
Dickson, Justice

Pursuant to Indiana Appellate Rule 64, the United States District Court for the Southern District of Indiana has certified, and we have accepted, the following questions of Indiana law:
1. Does Indiana law recognize a claim for "first-party" spoliation of evidence; that is, if an alleged tortfeasor negligently or intentionally destroys or discards evidence that is relevant to a tort action, does the plaintiff in the tort action have an additional cognizable claim against the tortfeasor for spoliation of evidence?

2. If so, what are the elements of the tort, and must a plaintiff elect between pursuing the spoliation claim and utilizing an evidentiary inference against the alleged tortfeasor in the underlying tort action?

In her certification order, Judge Shields asserts that there is no controlling Indiana precedent and that courts in other jurisdictions vary greatly. * * *

In light of Indiana's inconclusive case law, we agree with Judge Shields that there is no controlling Indiana precedent as to the questions presented. * * *

Notwithstanding the important considerations favoring the recognition of an independent tort of spoliation by parties to litigation, we are persuaded that these are minimized by existing remedies and outweighed by the attendant disadvantages. We thus determine the common law of Indiana to be that, if an alleged tortfeasor negligently or intentionally destroys or discards evidence that is relevant to a tort action, the plaintiff in the tort action does not have an additional independent cognizable claim against the tortfeasor for spoliation of evidence under Indiana law.

It may well be that that the fairness and integrity of outcome and the deterrence of evidence destruction may require an additional tort remedy when evidence is destroyed or impaired by persons that are not parties to litigation and thus not subject to existing remedies and deterrence. But the certified questions are directed only to first-party spoliation, and we therefore decline to address the issue with respect to third-party spoliation.

Conclusion. We answer the first certified question in the negative: Indiana law does not recognize a claim for "first-party" negligent or intentional spoliation of evidence. It is thus unnecessary to answer the second question.

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

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

Ind. Decisions - Court of Appeals posts five today

Illiana Surgery & Medical Center v. STG Funding, Inc. (3/22/05 IndCtApp) [Procedure]
Sharpnack, Judge

Illiana Surgery & Medical Center, LLC (“Illiana”) appeals a judgment in favor of STG Funding, Inc., (“STG”) on STG’s complaint against Illiana. Illiana raises five issues, which we revise and restate as: Whether the trial court erred by denying Illiana’s motion for summary judgment; Whether the trial court abused its discretion by refusing to admit evidence regarding an October 2000 loan commitment letter that had been lost or destroyed; Whether the trial court erred by denying Illiana’s motion for judgment on the evidence pursuant to Ind. Trial Rule 50(A); Whether the trial court erred by refusing to instruct the jury with Illiana’s tendered instructions; Whether the evidence is sufficient to sustain the jury’s verdict; and Whether the jury’s damage award is excessive. * * *

For the foregoing reasons, we affirm the trial court’s denial of Illiana’s motion for summary judgment, and the trial court’s denial of Illiana’s motion for judgment on the evidence, and the judgment in favor of STG. Affirmed.
BAKER, J. and FRIEDLANDER, J. concur

Duane Arthur v. State of Indiana (3/22/05 IndCtApp) [Criminal Law & Procedure]
Vaidik, Judge
After leading the police on a car chase and then fleeing from them on foot, Duane Arthur was convicted of two counts of resisting law enforcement and one count of operating a motor vehicle while privileges are forfeited for life. We find that Arthur’s convictions for fleeing in a vehicle and fleeing on foot cannot both stand because they violate double jeopardy principles. Additionally, we find that Arthur should have known his driving privileges were suspended based on his two previous convictions for driving while his privileges were forfeited for life. Therefore, we reverse and remand in part and affirm in part. * * *
KIRSCH, C.J. and NAJAM, J., concur

Billy Joe Groves v. State of Indiana
(3/22/05 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge
Billy Groves appeals his sentence for intimidation as a class D felony. Groves raises one issue, which we revise and restate as:
Whether the trial court abused its discretion by classifying Groves’s credit time as Class III; and Whether the trial court abused its discretion by denying Groves credit for time served prior to sentencing. We affirm in part, reverse in part, and remand. * * *
BAKER, J. and FRIEDLANDER, J. concur
Bruce A. Snow v. Anita F. Rincker (3/22/05 IndCtApp) [Family Law]
Baker, Judge
“Poverty is no disgrace to a man, but it is confoundedly inconvenient.” Sydney Smith, from His Wit and Wisdom. Today, appellant-petitioner Bruce Snow brings four issues before us, which we consolidate and restate as: (1) whether the trial court abused its discretion by ordering Snow to pay a portion of his twenty-year-old daughter Meghan’s college expenses; (2) whether the trial court abused its discretion by including certain expenses as educational expenses; and (3) whether the trial court erred in refusing to order appellee-respondent Anita Rincker—Snow’s former spouse—to pay a portion of the college expenses. While it was within the discretion of the trial court to order Snow to help pay for Meghan’s higher education expenses, the trial court abused its discretion in making this award because it reduces Snow to the confoundedly inconvenient state of poverty. Finding no other error, we affirm in part, reverse in part, and remand for a recalculation of Snow’s obligation with regard to Meghan’s higher education expenses. * * *

Conclusion. n light of the above conclusions, we find that the trial court erred in ordering Snow to pay so much of Meghan’s higher education expenses. We further find that the definition of “school expenses” and “education expenses” was easily ascertainable and included appropriate items. Finally, we find that the trial court’s order impliedly requires Rincker to pay any education expenses that are not covered by scholarship or allocated to Snow or to Meghan.

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions to cap Snow’s expenses based upon costs consistent with tuition and costs at a state-supported university.
FRIEDLANDER, J., concurs.

SHARPNACK, J., concurring in part and dissenting in part. I respectfully concur in part and dissent in part. I agree that the trial court did not abuse its discretion by including certain expenses as educational expenses and that the trial court did not err by failing to specifically order Rincker to pay a portion of the education expenses. However, I disagree that the trial court abused its discretion by ordering Snow to pay a portion of Meghan’s expenses at St. Louis University. * * *


Matthew Burgess, et al. v. E.L.C. Electric, Inc.
(3/22/05 IndCtApp) [Employment Law]
Sullivan, Judge
[“The Employees”] challenge the trial court’s grant of summary judgment in favor of Appellee-Defendant, E.L.C. Electric, Inc. (“E.L.C.”). Upon appeal, the Employees claim that the trial court erred in determining that their claims under the Indiana Common Construction Wage Act (“CCWA”) are preempted by the federal Employee Retirement Income Security Act (“ERISA”). We reverse and remand. * * *

In conclusion, the CCWA, and the Employees’ claims based thereon, are neither “connected with” nor “refer to” ERISA in such a manner as to warrant application of ERISA’s preemption provision. The trial court erred in concluding otherwise. To the extent that E.L.C. claims that it did not receive proper credit for certain expenses in IDOL’s audit, this is an issue which should be resolved at trial.

The judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.
NAJAM, J., and BARNES, J., concur.

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

Ind. Decisions - 7th Circuit issues one today

USA v. Re, Randall (ND Ill.) [16 pp.]

Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. A jury found both Randall Re and Anthony Calabrese guilty of conspiring to commit extortion and conspiring to travel to commit extortion. In this consolidated appeal, the defendants challenge their convictions and their sentences. We affirm their convictions, but pursuant to United States v. Booker, 125 S. Ct. 738 (2005) and United States v. Paladino, No. 03-2296, 2005 WL 435430, at *7 (7th Cir. Feb. 25, 2005), we order a limited remand regarding their sentences. * * *

[In Booker the Supreme] Court held that the Guidelines are no longer mandatory. The district court has discretion to sentence outside the Guideline range as long as the sentence is reasonable. * * *

Re and Calabrese now claim that their sentences were imposed in violation of the Sixth Amendment as clarified by Booker, and that the sentences should be vacated. The defendants did not argue that the Guidelines were unconstitutional in the district court; therefore, we must now review their sentences under the plain error standard. See Booker, 125 S. Ct. at 769; United States v. Cotton, 535 U.S. 625 (2002). A four-part test was set forth by the Supreme Court to determine plain error. Cotton, 535 U.S. at 631-32; Johnson v. United States, 520 U.S. 461, 466-67 (1997). “[B]efore an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights.” Johnson, 520 U.S. at 466-67 (internal quotations and citation omitted). Only if these conditions are met may an appellate court “exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 467 (internal quotations and citation omitted). * * *

Although the sentences were unconstitutionally imposed, we do not know whether the defendants’ rights were substantially affected because we do not know if the district judge would have imposed the same sentences even with the increased discretion permitted by Booker. Therefore, we will retain jurisdiction of the appeal and “order a limited remand to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence.” Id. at *10. If the district court determines that it would have imposed the same sentence, there is no prejudice and thus no plain error, but the sentence will still be reviewed for reasonableness. Id. If the sentencing judge determines that he would have imposed different sentences under the Booker standard, we will vacate the original sentences and remand the cases for resentencing. Id.

IV. Conclusion. For the foregoing reasons, we AFFIRM the convictions of Re and Calabrese. While retaining jurisdiction, we order a limited remand of their sentences in accordance with Booker, Paladino, and this opinion. The district court is directed to return this case to us when the limited remand has been completed.

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

Ind. Courts - Part II: What are the funding details of the state-wide case tracking system?

The Indianapolis Star story from March 8th called it a "$70 million project" that "has eaten up at least $7.5 million so far."

A Fort Wayne Journal Gazette editorial from March 16th said:

The project is funded by a $2 increase in court fees. The committee does not know how much more this will cost before it is completed, but the vice chairman of the judicial technology committee, Court of Appeals Judge Paul Mathias, disputes the $74 million price tag bandied about by Indianapolis media.
So what are the "true facts" about the money involved in the state-wide court records project? Here are the laws involved, and some of the numbers:

The Automated Record Keeping Fee. IC 33-37-5-21 establishes the fee:

Sec. 21. (a) This section applies to all civil, criminal, infraction, and ordinance violation actions.

(b) The clerk shall collect the following automated record keeping fee:

(1) Seven dollars ($7) after June 30, 2003, and before July 1, 2009.
(2) Four dollars ($4) after June 30, 2009.
According to a speech made by Justice Sullivan on May 8, 2003, "Each year more than 1.6 million cases are filed in Indiana." So that would result in Automated Record Keeping Fee collections of about $11,200,000 per year for the next five years. But see below.

Distribution of Court Fees. IC 33-37-7 concerns the distribution of court fees. What it basically says that is relevant here is that 100% of the Automated Record Keeping Fee collected at the local level shall be semiannually distributed to the Auditor of State for deposit in the State User Fee Fund. As you can see from looking at IC 33-37-7-1(b), a percentage of a number of other fees collected (such as 100 % of the highway work zone fees and 50% of the child abuse prevention fees) are also to be deposited in the State User Fee Fund.

The State User Fee Funds.
IC 33-37-9 establishes the state user fee fund under the Treasurer of State. Section 3 provides that twice a year (6/30 and 12/31) the Auditor shall transfer to the Treasurer for deposit in the User Fee Fund the court fees collected.

Then, purusant to section 4(a), the Treasurer is to semiannually distribute $1,288,000 of the total in the User Fee Fund to be split among a number of listed funds.

Under section 4(b), the remaining balance is to be distributed to the Judicial Technology and Automation Project fund established by IC 33-24-6-12.

The Judicial Technology and Automation Project Fund. This fund was created by PL 183-2001 and is codified at IC 33-24-6-12. It reads:

(a) The judicial technology and automation project fund is established to fund the judicial technology and automation project. The division of state court administration shall administer the fund. The fund consists of the following:
(1) Deposits made under IC 33-37-9-4.
(2) Other appropriations made by the general assembly.
(3) Grants and gifts designated for the fund or the judicial technology and automation project.
(b) The treasurer of state shall invest the money in the fund not currently needed to meet the obligations of the fund in the same manner as other public funds may be invested.

(c) Money in the fund at the end of a state fiscal year does not revert to the state general fund.

(d) There is annually appropriated to the division of state court administration the money in the fund for the judicial technology and automation project.

There are several things notable about this language; they are found in subsections (c) and (d).

This is a "nonreverting" fund -- "Money in the fund at the end of a state fiscal year does not revert to the state general fund."

The General Assembly has placed the appropriating language into the law itself, making it a "permanent" recurring appropriation, eliminating the necessity for inclusion of an appropriation in the biennial budget bills.

The State User Fee Fund [Acct. No. 6000-163100].

Finally, some actual figures. This Fund's revenue for FY 2004 was $9,219,381.
FY 2004 runs from July 1, 2003 to June 30, 2004. The Treasurer would distribute (disburse) the accumulated balance on Dec. 31, 2003 and June 30th, 2004. Disbursements:

FY 2004: On Dec. 31, 2003 -- $3,847,636 (for the 1st 6 months of FY 2004)
FY 2004: On June 30, 2004 -- $8,857,671 (for all of FY 2004)
Total revenue received: $9,219,381 (meaning the disbursements were about 96% of the revenue for FY 2004)
JTAC would receive $8,857,671 less 2 x the $1,288,000 = $6,281,671 for FY 2004)

FY 2005: On Dec. 31, 2004 -- $4,209,346 disbursed (JTAC would receive $4,209,346 less the $1,288,000 = $2,921,346 for the first 6 months of FY 2005)
FY 2005: On June 30, 2005 [not yet available]

What does all this mean? If I understand this correctly, the revenues coming into the State User Fee Fund, which includes both (1) the Automated Record Keeping Fee (which I guessed, via rough arithmetic, to total about $11.4 million/year earlier in this entry); plus (2) a number of other fees, actually totalled only about $9.2 million in the first year of the program. JTAC received $6.3 million of this, and may receive approximately the same amount for the next 5 years (June 30, 2003 to July 1, 2009). Thereafter, under IC 33-37-5-21, the Automated Record Keeping Fee goes down from $7 to $4.

[As of 4:00 pm I've made minor revisions to the above figures. Any further comments, corrections, or additional information will be appreciated.]

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

Law - Chief Justice Rehnquist returns to bench

Charles Lane of the Washington Post reports here; David Savage of the LA Times reports here.

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

Environment - New EPA Mercury Rule Omits Conflicting Data

"New EPA Mercury Rule Omits Conflicting Data" is the headline of a story today in the Washington Post. The lead:

When the Environmental Protection Agency unveiled a rule last week to limit mercury emissions from U.S. power plants, officials emphasized that the controls could not be more aggressive because the cost to industry already far exceeded the public health payoff.

What they did not reveal is that a Harvard University study paid for by the EPA, co-authored by an EPA scientist and peer-reviewed by two other EPA scientists had reached the opposite conclusion.

That analysis estimated health benefits 100 times as great as the EPA did, but top agency officials ordered the finding stripped from public documents, said a staff member who helped develop the rule. Acknowledging the Harvard study would have forced the agency to consider more stringent controls, said environmentalists and the study's author.

Here is the website for the Harvard Center for Risk Analysis. Here is the website for the EPA's National Center for Environmental Economics. Neither hosts the mercury report.

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

Ind. Courts - Marion County: Security fears renew call to move courts

"Security fears renew call to move courts" is the headline to this story today by Kevin O'Neal in the Indianapolis Star. Some quotes:

Over the years, there have been recommendations to move Marion County courts from the City-County Building to a new facility that would provide more space and security. The cost of a new building has stopped all attempts, but the Indianapolis Bar Association still is calling for that change, citing decades of studies.

"All of these studies show that there are dangerous inefficiencies in the system, dangerous courthouse security issues in the system, that need to be addressed, and every one of these studies has said, without fail, that the only feasible long-term solution is a new justice center facility," said John Kautzman, president of the Indianapolis Bar Association.

Monday, the association asked the county's Criminal Justice Planning Council to start work on plans for a new judicial center. The current system of moving prisoners through the City-County Building cannot be made secure, they said.

Cost, however, remains the main obstacle -- anywhere from $95 million to $195 million, according to the bar association's estimates. The bar association suggested the building could be funded by higher court fees and property taxes, and tax money taken from new Downtown developments. Also, the association figures there will be some savings from a new judicial center, as prisoners could be handled by fewer sheriff's deputies.

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

Monday, March 21, 2005

Law - Text of the federal Terri Schiavo law

Here is the text of the federal Terri Schiavo law, via Findlaw.com.

AN ACT

For the relief of the parents of Theresa Marie Schiavo.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 2. PROCEDURE.

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.

SEC. 3. RELIEF.

After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 4. TIME FOR FILING.

Notwithstanding any other time limitation, any suit or claim under this Act shall be timely if filed within 30 days after the date of enactment of this Act.

SEC. 5. NO CHANGE OF SUBSTANTIVE RIGHTS.

Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.

SEC. 6. NO EFFECT ON ASSISTING SUICIDE.

Nothing in this Act shall be construed to confer additional jurisdiction on any court to consider any claim related--
(1) to assisting suicide, or
(2) a State law regarding assisting suicide.

SEC. 7. NO PRECEDENT FOR FUTURE LEGISLATION.

Nothing in this Act shall constitute a precedent with respect to future legislation, including the provision of private relief bills.

SEC. 8. NO AFFECT ON THE PATIENT SELF-DETERMINATION ACT OF 1990.

Nothing in this Act shall affect the rights of any person under the Patient Self- Determination Act of 1990.

SEC. 9. SENSE OF THE CONGRESS.

It is the Sense of Congress that the 109th Congress should consider policies regarding the status and legal rights of incapacitated individuals who are incapable of making decisions concerning the provision, withholding, or withdrawal of foods, fluid, or medical care.

NPR's Day to Day had three pieces today on the federal intervention in the Schiavo case. Access them here.

READ Dahlia Lithwick's NPR piece here in Slate.

Nightline tonight will look at the issues in the case. From the promo:

Regardless of where one stands on this case, we can all agree that congressional action this weekend was unprecedented. Is this an appropriate role for the United States Congress, or should the matter remain in the jurisdiction of the state? And what about all those claims made about Terri Schiavo's condition on the floor of both Houses this weekend, how informed are they?

We'll examine all those issues tonight. George Stephanopoulos anchors, and he will talk to Jay Wolfson, the state-appointed guardian at law who ultimately ruled that Mrs. Schiavo is in a permanent vegetative state. George will also examine the legal, political and ethical issues at stake here with a panel of experts. It promises to be a provocative program on an issue that has clearly captivated the nation. We hope you'll join us.

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

Ind. Decisions - Court of Appeals posts three today

Primecare Home Health v. Angels of Mercy Home Health (3/21/05 IndCtApp) [Trade Secrets]
Bailey, Judge

* * * Notwithstanding the proper acquisition of the Defendants’ knowledge, and the lack of employee non-competition agreements, PrimeCare argues that the Defendants necessarily violated the Act because patients enjoy a right to privacy of their demographic and medical information under federal law. 45 C.F.R. § 164.501 et seq. Undisputedly, patients have privacy rights. However, there is no evidence that Angels of Mercy has any patient information not directly provided by a patient himself or herself. Moreover, PrimeCare is not seeking to redress a privacy violation under federal law on behalf of the patients. PrimeCare sought injunctive relief under the Act upon belief that its clientele and employees were raided.

Furthermore, even if PrimeCare demonstrated, prima facie, that a trade secret was misappropriated, PrimeCare has not shown that its remedies at law are inadequate. PrimeCare concedes that patients have a right to choose their caregiver and that PrimeCare cannot, by court order, recover its patients. Instead, PrimeCare is concerned with recouping financial loss. Loss incurred that is essentially financial is usually insufficient to warrant the grant of equitable relief. College Life Ins. Co. of America v. Austin, 466 N.E.2d 738, 745 (Ind. Ct. App. 1984). It is only when the remedy at law is inadequate and the damage is irreparable that the extraordinary remedy of a preliminary injunction is appropriate. Short on Cash.net, 811 N.E.2d at 823. As such, PrimeCare has demonstrated no abuse of discretion in the trial court’s denial of preliminary injunctive relief. Affirmed.
SULLIVAN, J., and MATHIAS, J., concur.

Danny Brown v. Ginger A. Brown (3/21/05 IndCtApp) [Family Law]
Crone, Judge
Danny Brown (“Danny”) appeals the trial court’s order in favor of Ginger Brown (“Ginger”) that the retroactive lump sum payment of Danny’s social security disability benefits to the parties’ minor child may not be credited against his child support arrearage. We affirm. * * *

We acknowledge that social security disability payments to a dependent child do not fit easily into our child support guidelines. Indiana Child Support Guideline 3(A)(1) includes “social security benefits” within its definition of “weekly gross income,” but this refers to benefits paid to the parent, not the dependent child. If anything, disability benefits paid to a dependent child would more appropriately be characterized as additional weekly income of the custodial parent before application of the support guidelines, rather than as support payments made by the noncustodial parent. In fact, giving the custodial parent dollar-for-dollar credit for disability benefits received by the dependent child in this case would result in the child’s household owing money to the noncustodial parent on a weekly basis. The trial court did not abuse its discretion in rejecting such a fundamentally unfair result. Affirmed.
VAIDIK, J., concurs.
RILEY, J., dissents with opinion. I respectfully dissent. I would follow the precedent established in Poynter v. Poynter, 590 N.E.2d 150, 152 (Ind. Ct. App. 1992). In Poynter the court considered whether a custodial parent’s monthly payment of disability benefits should be credited solely as support paid by her rather than used to reduce the total support obligation allocated between both parents. Id. We answered that question in the affirmative, rationalizing that “[disability] benefits are not gratuities but are earned, and they substitute for lost earning power because of the disability.” Id. The same principle applies here. * * *

Rick R. Slusher v. State of Indiana (3/21/05 IndCtApp) [Criminal Law & Procedure]
Riley, Judge
[Issue] whether Slusher’s ineffective assistance of counsel claim can be remanded to the trial court for a Davis/Hatton proceeding. * * *

Based on the totality of the evidence before us, we conclude that Slusher’s claim of ineffective assistance of counsel rests on factual determinations and further evidentiary development that can only be reached by the trial court. See Woods, 701 N.E.2d at 1212. It is not a proper avenue for an appellate court to take. See Edmond, 790 N.E.2d at 144. Accordingly, we have no way of evaluating trial counsel’s performance; therefore, we grant Slusher’s motion and remand to the trial court with instruction to hold a Davis/Hatton hearing.

CONCLUSION. Based on the foregoing, we remand the instant case to the trial court for further evidentiary development of Slusher’s ineffective assistance of counsel claim in accordance with a Davis/Hatton proceeding. Remanded with instruction.
CRONE, J., and ROBB, J., concur.

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

Ind. Decisions - 7th Circuit posts two today

Ryder Truck Renal v. NLRB (NLRB) [21 pp.]

Before FLAUM, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.
FLAUM, Chief Judge. Petitioner Ryder Truck Rental (“Ryder”) seeks review of a decision of the National Labor Relations Board (“NLRB” or “Board”) holding that Ryder violated §§ 8(a)(1), 8(a)(3), and 8(a)(4) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (a)(3), and (a)(4) (“NLRA” or “Act”). The NLRB has filed a cross-application for enforcement of its order. Because the Board’s decision is supported by substantial evidence, we deny Ryder’s petition for review and enforce the Board’s order.

Cichon, Michael C. v. Exelon Generation Co (ND Ill.) [21 pp.]

Before BAUER, COFFEY and KANNE, Circuit Judges.
COFFEY, Circuit Judge. Michael Cichon was employed as a “Unit Supervisor” for Exelon Generation Company at its Byron, Illinois, nuclear power plant, until he was removed from the position because Exelon believed that he lacked the necessary leadership qualities. A few weeks later, Cichon applied for a different position with Exelon at their Byron plant, as a “Turbine Project Manager,” but was not hired because of his lack of leadership skills. Thereafter, Cichon filed suit against Exelon under § 215(a)(3) of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., alleging that Exelon had removed him from his Unit Supervisor position and refused to hire him for the Turbine Project Manager position in retaliation for his having filed a prior lawsuit against Exelon under the FLSA.1 The district court granted summary judgment to Exelon, finding Exelon had offered legitimate, non-retaliatory reasons for its decision to remove him as a Unit Supervisor and declining to hire him as a Turbine Project Manager and went on to conclude that Cichon had failed to demonstrate that these reasons were pretextual. Cichon appeals, we affirm.

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

Courts - In Courts, Threats Have Become a Fact of Life

The Sunday NY Times had a chilling front-page story headlined "In Courts, Threats Have Become a Fact of Life." The lengthy article begins:

Last March, a federal prosecutor in Utah overseeing a racketeering case against a dozen members of the Soldiers of Aryan Culture received a chilling threat.

"You stupid bitch!" the letter to the assistant United States attorney, who is an African-American woman, began. "It is because of you that my brothers are in jail." The letter went on to mention the prosecutor's home address, concluding, "We will get you." It was signed, "Till the casket drops."

After a second threat, a federal magistrate summoned the 12 defendants to a courtroom in Salt Lake City late last year and informed them that their family visits and telephone privileges would be suspended.

The men, who are accused of operating a violent criminal enterprise that peddles white supremacist ideology and methamphetamine inside and outside Utah's prisons, did not take the news well.

Seated in the jury box because they were too numerous to sit together at the defense table, the defendants were handcuffed and shackled. But this did not stop them from leaping to their feet, spewing profanity-laden protests, spitting, kicking and scuffling with more than a dozen United States marshals and court security officers.

It was not just another day in an American courtroom, but it was not an aberration either. Defendants act out. And threats against judges and prosecutors appear to be a regular, almost routine, part of courthouse life, not only in highly public emotional cases like that of Terri Schiavo, the severely brain-damaged woman in Florida whose feeding tube was removed by court order on Friday, but in garden-variety disputes, too.

Only federal authorities keep a count of annual threats, but the 700 reported against federal judicial officials alone suggest that the total made against federal, state and local court officials is much larger.

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

Ind. Law - Star editorializes about SJR 1

An editorial in the Indianapolis Star today warns: "Legislators should be cautious about undertaking appellate court reform." Interestingly, it does not completely rule out revision. Some quotes:

There are certainly problems with SJR 1, now in the House after gaining Senate approval earlier this month. Plans to restructure the nominating committee by replacing three members selected by lawyers with three picked by legislative leaders would lead to judges who are considered based on party affiliation rather than talent and temperament.

Appellate judges also would have to endure reconfirmation by the Senate every decade. Now, sitting judges face a retention vote by citizens. That change would upset the state's system of checks and balances. Sure, it would take 30 senators to remove a judge. But the idea of having to face legislators to stay on the bench may cause judges to weigh short-term political considerations in controversial cases.

Removing politics from the judiciary is one of the reasons why the state scrapped its old system of electing appellate judges in 1970.

Then the Star goes on to say:
Yet Young, a Republican from Indianapolis, is right when he argues that retention voting is "a sham" because voters don't have enough information to gauge a judge's record or temperament. Nominees also don't face public scrutiny until after a decade of service.

So there is a need for tweaking the system. Perhaps retention voting should be ditched altogether. In turn, granting the Senate impeachment powers, in case judges don't serve in good behavior, should be considered.

Perhaps it's time to follow the federal system and grant appellate judges life tenure. Or, as a compromise, appoint judges to a single 24-year term, which would guarantee independence while assuring that judges don't stay long beyond their capabilities. It's also time to discuss ways to give citizens better access to court records so they can check out judges for themselves.

It took nearly a decade to come up with the current judicial selection process. Changing the system now also should be done slowly and carefully, ensuring that fairness and independence, not political considerations, are the ultimate goals.

In this March 5th ILB entry, I wrote:
Second, I do agree with Senator Young that "few constituents know enough about the judges' rulings to make informed decisions at the ballot box." But that is because the bar associations, the media, and groups like the League of Women Voters have fallen down on their job. I have no doubt, as I said above, that if a judge's opinions were to trigger the wrath of an interest group, the voters would get plenty of information about it. But if a judge is simply doing her job - either admirably or adequately - as apparently appellate judges have been doing since they became subject to the retention process, there will be little information or publicity about them.

In last November's election, Judge John T. Sharpnack was up for another 10-year term. In the week before the election, the hits to the Indiana Law Blog tripled. Interested to find out why, I looked at my site's statistics. Almost all the extra hits were the result of search engine inquiries for various variations of the name "Judge Sharpnack"! My interpretation: These were voters who wanted to find out more about the Judge so that they could cast intelligent votes. The ILB would be picked up in their searches because I include the names of all the judges participating in an opinion.

My thoughts at this point, as I express in more detail in the March 5th entry, would be to focus on making the retention vote more meaningful by compiling and making readily available, to the opinion-makers and also directly to the voters, the data necessary to cast an informed vote.

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

Sunday, March 20, 2005

Ind. Gov't. - [Updated] Reactions to most recent version of inspector general bill

This ILB entry from March 15th reports on the compromise version of the inspector general bill, now found in SB 18. The Evansville Courier& Press has an editorial today about the bill. Some quotes:

To the extent that an inspector general would investigate allegations of bribery, profiteering, official misconduct and conflicts of interest in the executive branch, the position would be of value to state government. But Daniels has been overreaching in his attempt to give the inspector general the power to prosecute, which is what an ethics bill proposed to do originally. Earlier in the session, House Democrats objected to the proposal; it was one of the reasons they staged an untimely walkout two weeks ago.

But Republicans have been tinkering with the provision in an effort to make it more palatable to Democrats, and apparently, it worked. In the Senate bill that passed the House unanimously this past week, the inspector general would investigate cases, and if after six months a county prosecutor declined to file charges, the inspector general could petition the Indiana Court of Appeals to have the case moved to the inspector general or another prosecutor to try.

That's an improvement, yet we still end up - presuming the Senate accepts the reduced prosecutorial powers - with an individual hand-picked by the governor, attempting to go over the head of an elected county prosecutor to file criminal charges. It's better, we believe, that the inspector general's powers be limited to investigating wrongdoing and then turning his work over to elected prosecutors. * * *

Among the provisions pointed out by Jennifer Whitson of the Courier & Press' Indianapolis bureau in a Wednesday report, the bill would make it a misdemeanor to retaliate against a whistleblower; create incentives for reporting misconduct; and ban gifts to state employees from people doing business with the state. It would require a one-year period for executive branch employees between the time they leave their job and when they can be hired as lobbyists or work for companies regulated by the state. The bill would make it a felony to engage in official misconduct or profiteering from public services; require executive branch lobbyists to register; and force any official convicted of a felony to forfeit his office upon conviction instead of at the time of sentencing.

The bill did pick up one unfortunate new provision in the House: It would restrict public access to records of ethics investigations until the day of a hearing on suspected violations.

Current law provides the opening of records when a suspect is notified of a hearing, or when a suspect elects to have the records divulged. There is no reason to change that provision.

We find it ironic that this provision was being voted through in Indiana during a week in which newspapers across the country were calling attention to the need for greater openness in public records and meetings.

If the governor truly wants a more transparent government, he will encourage the Legislature to leave the law as it is regarding when records may be divulged.

The Indianapolis Star's "Behind Closed Doors" column today also picks up on the restrictions on public access in the pending bill:
Open government?

During the governor's race, Daniels highlighted criminal investigations involving the Family and Social Services Administration, the Public Employees' Retirement Fund and the Bureau of Motor Vehicles as evidence of the need for a "new crew" in state government.

But his inspector general legislation, in Senate Bill 18, would make it tougher to find out about future investigations into state government.

For example, Indiana State Police are using their new arrangement with the inspector general's office, to which five detectives have been assigned, to avoid filing initial reports of criminal inquiries they open at the inspector general's request.

In addition, under Daniels' proposed legislation, ethics files that are now public after the State Ethics Commission has found cause to believe a violation has occurred and has offered the accused a settlement that has been turned down would be made confidential until cases reach the hearing stage. That essentially would reveal the charges on the day an administrative trial begins.

Daniels pledged to run the most open administration Indiana has ever seen. But Daniels administration officials say they are making these records confidential because they want to protect the privacy and reputations of people and companies the inspector general investigates.

[Update 3/21/05] The Fort Wayne Journal Gazette has an editorial this morning:
Political concerns with the proposed inspector general legislation were miraculously smoothed over to produce a 98-0 vote of approval in the Indiana House last week. Unfortunately, the public’s interests got left at the door – during a week set aside to highlight the importance of public access, no less.

“Never before has this body addressed in such a strong way restoring public confidence in state government,” said House Speaker Brian Bosma, R-Indianapolis, after the House vote.

Not so fast, Mr. Speaker. A substantially rewritten Senate Bill 18 now includes a provision that would delay public access to ethics investigation records until the day of an Ethics Commission hearing or until the alleged violator allows the records to be released.

Originally, the measure would have allowed the public to examine records after the accused is informed of the hearing.

A spokesman for Gov. Mitch Daniels, who proposed and championed the new post, said the provision is designed to protect whistleblowers. But that protection could have been assured by simply keeping the name of the whistleblower confidential until the hearing.

In addition, the newly appointed inspector general won’t be required to file public case reports after the cases are completed, as does his counterpart in most of the 11 other states with inspectors general.

It’s ironic that concerns about the inspector general bill were so serious that they contributed to the Democratic walkout earlier this month, but that elected officials have no concerns when it comes to restricting the public’s right to know.

Members of the Senate have the chance to remedy the flaws in the inspector general bill by rejecting the House-approved version and sending it to conference committee for revision. The measure forwarded to the governor should protect the interests of the public as well as the interests of politicians and bureaucrats.

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

Ind. Decisions - Another article on Smylie v. State

Bryan Corbin of the Evansville Courier& Press has an article today on the recent Supreme Court decision in Symlie v. State, along with the U.S. Supreme Court's decision in Blakely v. Washington. The headline: "Landmark rulings give juries more clout in sentencing." Some quotes:

Jurors will have more influence in the sentencing of criminals because of a pair of landmark rulings from the highest courts in the nation and state. The Indiana Supreme Court has thrown out part of Indiana's sentencing structure as unconstitutional. The ruling limits the power of judges to lengthen certain prison sentences and shared it instead with jurors. The power comes through the ability to find certain factors called "aggravators," by which judges have extended prisoners' sentences by as much as 20 years.

"When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts which the law makes essential to punishment," wrote Indiana Chief Justice Randall Shepard in the case of Smylie v. State.

The decision comes nine months after a major U.S. Supreme Court case, Blakely v. Washington, which struck down the sentencing scheme in Washington state and had ripple effects for federal and state courts nationwide.

"It's a major decision. It's what we call a keystone case," local defense attorney Cole Banks said. The big question for defense lawyers, prosecutors and judges alike was whether the Blakely decision in June applied to Indiana courts. The Smylie decision now says that it does. "It's certainly going to have an impact on a judge's ability to protect the public from violent criminals," defense attorney Dennis Vowels said of the Smylie case. "It raises a question as to whether or not judges can give longer sentences for people who hurt other people."

Others say the effects of the two decisions are limited, since most criminal cases end in plea agreements, not trials. "The sentencings I'm doing, I don't see that it's going to make a major impact," said Magistrate David Kiely, who sentences many felons in Vanderburgh Circuit Court.

This is an excellent piece, I recommend it to you in full. For more on Smylie v. State, read Michael Ausbrook's blog, INCourts, and don't miss his post commenting on, and linking to, Indianapolis attorney Michael Limrick's article on Smylie, bound for next month's Res Gestae. Limrick is listed as an attorney for amicus curae in the appellant's column of the opinion.

Posted by Marcia Oddi on Sunday, March 20, 2005
Posted to Ind. Sup.Ct. Decisions

Environment - More on DNR shakeup

Skip Hess has this today in his Indianapolis Star column, "Outdoor Indiana":

Indiana Department of Natural Resources staffers are still buzzing about the way new director Kyle Hupfer dismissed 10 high-ranking officials at a meeting.

Their names were announced like roll call at a summer youth camp. Steve Sellers, former DNR director of communications, was one of those who lost his job.

"Paul Ehret (deputy director of regulation) was the first name called. Mine was the second," Sellers said. "One woman (who was dismissed) said she was in a fog after the third name was called.

"It was flabbergasting, cold and impersonal. When I got back to my office, I began writing down the names of who got nuked. I could only remember seven."

Before Sellers could communicate what happened, his e-mail was "unplugged," along with e-mail of the others dismissed.

Technically, the staffers resigned after they were given the choice to resign or be fired. If they chose to be fired, they would have lost vacation time.

Sellers and others who worked for the former director, John Goss, a Democratic administration appointee, knew job security was shaky when Republican Mitch Daniels was elected governor. * * *

Sellers, a Democratic appointee, thought he had a chance to keep his job. He said he is disappointed but not bitter. "I do feel badly for the talented people (who lost their jobs)," he said.

In a memo to department staffers last week, Hupfer explained his reason for dismissing 10 people in one day. "I wanted to avoid the pattern of two or three changes taking place each week," he said. "My hope is that by communicating this to all of you, each of you can avoid concerns about your own positions and focus on the work of the department."

Hupfer said that the 10 people who resigned will be replaced within two weeks. Meanwhile, the director has assigned people in an interim capacity. Here are other department leaders who were dismissed:

Janet Parsanko, deputy director and general counsel; Burnie Fischer, director of forestry; Mike Nickolaus, director of oil and gas; Eric Myers, executive director of the Heritage Trust and Natural Resource Foundation; Harry Nikides, director of soil conservation; Randy Braun, assistant director of soil conservation; John Tryon, director of human relations; and Barbara Moore, director of land acquisition.

Hupfer called a meeting of the Indianapolis central office staff to explain his goals. Early next month he will begin meeting with personnel at DNR sites throughout the state.

Only Hupfer knows if more personnel changes will be made. But he left the door ajar in his memo to department staffers. "I want to make it clear that while analysis of each division's activities will continue, it was my goal to do a complete review of personnel issues before making any changes," he said.

Posted by Marcia Oddi on Sunday, March 20, 2005
Posted to Environment

Saturday, March 19, 2005

Environment - Several stories today involving neighboring states

"Sewage sludge may be shipped to W. Kentucky" is the headline to a story today in the Louisville Courier Journal. The report begins:

Nashville's partially treated sewage sludge, which has raised a stink in Tennessee because of strong odors, may be headed to Western Kentucky.

Kentucky regulators are weighing whether to allow as much as 500 tons of sludge a day to be sent from two Nashville wastewater treatment plants to a rural corner of Hopkins County, about 14 miles south of Madisonville, where it would be buried for final treatment and later dug up and used to help reclaim strip-mined land.

Hopkins County Judge-Executive Patricia Hawkins was not available yesterday and a reporter was referred to sanitation supervisor Broc Oglesby.

He said he learned of the proposal Thursday from an anonymous tip, and that he expects local residents won't be pleased when word gets out.

"I'd guess they'd be furious," he said, adding that he's referred the matter to the county attorney for advice on whether local gov- ernment has any say in the matter. "Nobody wants to be dumped on."

A Washington Post story today reports that:
An Ohio company will pay $1.1 billion in fines and cleanup costs at four power plants in the second-largest federal settlement with an electric utility over air pollution.

The case, filed in 1999 against FirstEnergy Corp.'s W.H. Sammis plant north of Steubenville, Ohio, was the first involving dozens of Midwest plants to go to trial over accusations that the plants spewed dirty air that caused smog and health problems in the Northeast.

A federal judge in Columbus, Ohio, ruled in August 2003 after a three-week trial that Akron, Ohio-based FirstEnergy had violated the Clean Air Act by making physical changes at its coal-fired plant without upgrading pollution controls.

Posted by Marcia Oddi on Saturday, March 19, 2005
Posted to Environment

Ind. Decisions - More on "Federal Judge McKinney rules for environmental activist"

More news today on "the ruling, issued Thursday by U.S. District Judge Larry McKinney, Evansville police officers violated Blair's First Amendment rights by ordering him out of a large 'no-protest' zone, and arresting him when he questioned their right to do so." (Quote from yesterday's Evansville Courier& Press; access ILB entry here.)

Here is an ACLU press release headlined "Federal Court Rules Indiana Protester's Rights Violated During Cheney Visit." A quote:

In granting summary judgment on John Blair's claim that his First Amendment rights were violated, U.S. District Court Judge Larry J. McKinney directly addressed the recent trend of using security concerns as justification for limiting advocates to so-called "protest zones" far away from official events.

"The restriction of protesters to an area 500 feet away from the only entrance used by attendees, and on the opposite end of the building from where Vice President Cheney would enter the facility . . . burdened speech substantially more than was necessary to further the Defendants' goals of safety," Judge McKinney wrote.

The case arose from the Vice President's visit to Evansville on February 6, 2002. Blair, a Pulitzer Prize-winning photographer and writer, held a sign stating, "Cheney, 19th Century Energy Man," and stood across the street from the arena where Cheney was to appear. Blair was arrested for disorderly conduct after he failed to immediately comply with Evansville Police Department officers' orders to move to the designated protest zone.He was later charged with resisting law enforcement, but the charges were dismissed six days after Blair's arrest.

"This is an era when the First Amendment is under attack by law enforcement limiting protest activities, so this decision reaffirming the right to free speech is a significant one," said Indiana Civil Liberties Union Legal Director Ken Falk, who represents Blair.

The court also ruled that Evansville police lacked probable cause in arresting Blair, and granted summary judgment on his claim that Evansville police violated his Fourth Amendment right to be free from unreasonable search and seizure.

And Maureen Hayden of the Evansville Courier& Press has an interesting story today reporting that:
In light of a judge's ruling that police violated a protester's free speech rights at a private fund-raiser with Vice President Dick Cheney, the city may roll up its welcome mat.

The reason is money and the reported unwillingness of the Secret Service to "back up" its demands for security measures that, according to a judge's ruling, went far beyond what was required to protect Cheney during his 2002 visit to Evansville.

A day after the judge ordered the city to pay damages, Evansville City Attorney David Jones said the Police Department can no longer afford to "provide any security for a president or vice president" who comes to Evansville.

Jones faulted the Secret Service, who devised the security plan for Cheney but failed to help Jones defend the city in a lawsuit brought after environmental activist John Blair was arrested for violating the Secret Service's no-protest zone. Jones said the Secret Service refused to provide evidence, testimony and witnesses he needed to make the city's case. Jones also said the Secret Service "used" city police to provide costly security and then abandoned the city when problems arose. "This is not fair,'' said Jones. "We've been used like a pair of work gloves and when we were no longer handy, we were just discarded."

Posted by Marcia Oddi on Saturday, March 19, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - ADA regulations at heart of state sovereignty battle

That is the headline of a story by Carole Carlson of the Gary Post-Tribune that reports today:

In what could become a landmark case, the U.S. Department of Justice is set to clash with the Indiana Attorney General’s office Thursday in a case that pits the Americans with Disabilities Act against state sovereignty.

U.S. District Judge Philip Simon will hear oral arguments from lawyers Department of Justice and the state’s Attorney General’s office at 1 p.m. in his Hammond courtroom.

The case stems from a class-action suit filed in 1998 by the Everybody Counts Center for Independent Living, a not-for-profit Merrillville advocacy agency, and eight local residents with disabilities.

Thursday’s court action is expected to draw several members of the disabled community to the federal courthouse. Interpreters for the deaf will be present in the courtroom.

The plaintiffs sued the Indiana Department of Transportation, the Northwestern Indiana Regional Planning Commission and a group of local transportation providers. They alleged multiple violations of the ADA law, passed by Congress 15 years ago. They complained about a denial of access, late pickups, a lack of adequate driver training or drug screening, and unsafe practices. They are seeking unspecified monetary damages.

Tom Fisher, special counsel for the Attorney General’s office, said the 11th Amendment or state sovereignty clause, excludes Indiana and other states from being liable for damages in private lawsuits. Fisher will argue the case for the Attorney General’s office. * * *

The government will argue that Indiana waived its immunity from lawsuits under Section 504 of the Rehabilitation Act by accepting federal money. In a written brief, it said although INDOT is not charged with providing public transportation, it is responsible for distributing federal transit funds to organizations and certifying that the money is used in compliance with the ADA and Section 504.

The federal government stepped into the lawsuit when the Attorney General’s office cited the 11th Amendment in its response in a motion for summary judgment.

“It sends a clear message to the defendants that the ADA isn’t a joke,” said Teresa Torres, director of the Everybody Counts Center for Independent Living. “It is a federal law. It is significant.”

The federal government is likely to base its argument on a 2004 Tennessee case in which a federal court ruled a disabled court reporter should have access to a state courthouse. Tennessee argued it was immune from legal action.

The Tennessee case, of course, is Tennessee v. Lane, decided May 17, 2004.

Posted by Marcia Oddi on Saturday, March 19, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Gary Post Tribune reports on Smylie v. State

Frank Wiget of the Gary Post-Tribune has a story today headlined "Ruling on jail sentences likely to affect area cases." Well, yes ...

Some quotes from the story:

A recent Indiana Supreme Court ruling calling part of the state’s sentencing laws unconstitutional has judges, prosecutors and defense lawyers scratching their heads. “I haven’t got a clue,” said veteran criminal trial lawyer Larry Rogers on the effect of the court’s decision.

The state’s highest court on March 9 said judges cannot go beyond a standard criminal sentence without the jury’s approval. Previously, judges had the ability to decide on their own if mitigating incidents permitted a sentence less than the state standard, or if aggravating incidents allowed them to sentence more than the standard.

That sentencing variable can still happen, but only with a jury’s permission.

It affects Porter County cases such as the one of Kimberly Baldwin, who received a 115-year sentence for murder, conspiracy to commit murder and aiding in the murder of her ex-husband, Frank Parker. A jury in Porter Superior Court Judge Roger Bradford’s court found her guilty Dec. 17 of the charges.

She was sentenced Feb. 11, so it might take recalling the jury or bringing in a new jury to decide mitigating and aggravating factors that could change the length of her sentence, Bradford said.

Porter Superior Court Judge Bill Alexa had timing on his side with a recent case. A jury found Carl G. Smith guilty March 10 of two counts of child molesting, three counts of attempted child molesting and 10 counts of child exploitation the day after the state court decision.

Alexa sent the jurors back to weigh mitigating and aggravating factors that he will consider when he sentences the 54-year-old Valparaiso man April 8. The Smith jury found two aggravating factors that can increase the sentence — the victim was a 2-year-old girl who was molested by him on Feb. 15, 2002, and the molestation left a traumatic affect on the now 5-year-old child.

Baldwin, 39, of Valparaiso was represented by Rogers during the trial and is represented by public defender Bryan Truitt on her appeal.

Bradford said he plans to call a meeting in the near future with the defense attorneys and Chief Deputy Prosecutor Brian Gensel and Deputy Prosecutor Tammy Gregg to get a sense of how the Baldwin appeal might proceed.

Rogers said the Indiana Court of Appeals may proceed with the appeal and could conceivably order a new trial or a reduced sentence. It could be difficult to go over mitigating and aggravating factors without having a new trial, Rogers said. He said there are no easy or simple answers. “The Supreme Court ruling created a hell of a mess,” Rogers said.

Gensel also said he doesn’t have any simple answers.

“We’re in a holding pattern,” said Truitt. “There are more questions than answers.”

Under Indiana law, a murder charge carries a standard sentence of 55 years, to which up to 10 years can be subtracted for mitigation or 10 years added for aggravation. An A felony carries a standard sentence of 30 years to which 10 years can be subtracted for mitigation or up to 20 years added for aggravation. Four of the charges Smith was convicted of are A felonies. All felony charges carry sentencing ranges.

Posted by Marcia Oddi on Saturday, March 19, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Star reports on Brownsburg bid selection case

Thursday's Indiana Supreme Court decision in Brownsburg Community School Corporation v. Natare Corporation (3/17/05) (see ILB entry here) is the subject of an Indianapolis Star story this morning. Some quotes:

Brownsburg -- The state Supreme Court has dismissed Brownsburg Schools from an antitrust lawsuit related to the construction of its $1.1 million swimming pool.

In a unanimous ruling, the court said the school district was not liable for triple damages under the state's antitrust law and ordered a trial court in Marion County to remove the district from a lawsuit filed by swimming pool contractor Natare Corp., of Indianapolis.

The case involved the contract for the construction of the swimming pool, which was part of an $8 million renovation project at the high school. * * *

The Supreme Court decision applies only to Brownsburg, not the two other defendants.

"The suit remains," said Natare lawyer Thomas Pastore. The decision "takes away the cause of action against (Brownsburg), but not against the architect and the pool consultant."

Posted by Marcia Oddi on Saturday, March 19, 2005
Posted to Ind. Sup.Ct. Decisions

Friday, March 18, 2005

Environment - Auburn Foundry facing $22 million in environmental fines

"Auburn Foundry facing $22 million in environmental fines" is the headline of a story this afternoon in the Fort Wayne News Sentinel. Some quotes:

The Indiana Department of Environmental Management says Auburn Foundry owes it $22 million for alleged violations of environmental laws.

The company, however, told a bankruptcy court it doesn’t expect more than $5 million of those claims to be allowable.

The company filed for Chapter 11 bankruptcy protection a little more than a year ago in the Fort Wayne Division of U.S. Bankruptcy Court for the Northern District of Indiana. The privately owned, gray and ductile iron foundry had said it faced a cash crunch as lenders demanded repayment of their loans and no new, steady money was coming in.

Bankruptcy court documents revealed IDEM has notified Auburn Foundry of alleged violations of environmental laws, and the business has provided it with a $1 million letter of credit. The department also has the potential to recover funds through an insurance claim that would be assigned to it as part of the foundry’s reorganization plan. * * *

A hearing on the revisions will take place Wednesday. The revisions include acknowledgement of the potential debt to IDEM, plans to pay $1.75 million in unsecured claims and a $1.3 million claim filed by Local 322 of the Glass, Molders, Pottery, Plastics and Allied Workers International Union.

The story gives little indication of what the environmental violations were, and a search of IDEM's enforcement database shows only one Agreed Order (7613), from 1998, with a civil penalty of $55,326. The database also shows 16 outstanding and unresolved Notices of Violation, dating back as far as 1997, when the database was set up.

Posted by Marcia Oddi on Friday, March 18, 2005
Posted to Environment

Ind. Decisions - Transfer list for week ending March 18, 2005

Here is the Indiana Supreme Court's transfer list for the week ending March 18, 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, March 18, 2005
Posted to Indiana Transfer Lists

Ind. Decisions - One today from the Court of Appeals

Robert B. Keene v. Marion County Superior Court (3/18/05 IndCtApp) [Employment Law]
Hoffman, Senior Judge

* * * Plaintiff-Appellant Robert B. Keene appeals the trial court’s denial of his motion to correct error with regard to the trial court’s grant of Defendant-Appellee Marion County Superior Court’s motion for judgment on the pleadings. We affirm.

Appellant presents one issue for our review which we restate as: whether the trial court erred by granting Appellee’s motion for judgment on the pleadings with regard to the statute of limitation.

Keene was employed by Appellee. On August 25, 1998, Keene received from Appellee a notice that Appellee intended to terminate him one month in the future. On September 25, 1998, Keene was terminated from his employment with Appellee. Subsequently on September 25, 2000, Keene filed his cause of action against Appellee alleging that he was discharged as a result of age discrimination. Appellee filed a motion for judgment on the pleadings, which the trial court later granted. Keene challenged the trial court’s ruling with a motion to correct error, but the court denied the motion. Keene now appeals the trial court’s ruling. * * *

Thus, the issue in this case is when, in a wrongful termination case, does the action accrue for the purposes of triggering the running of the statute of limitations. Indiana has yet to develop specific case law in this area; however, numerous jurisdictions have followed the rationale and decision of the United States Supreme Court decision in Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) and its progeny. * * *

In the present case, Keene argues that he suffered no damages until he was actually discharged because there was no change in his salary or working conditions. Therefore, he asserts, notice of termination in the future was not enough for the accrual of an action and the commencement of the running of the statute of limitations. However, the date upon which there is a change in salary or working conditions does not determine when an action accrues. In keeping with the rationale of Ricks, we determine that the alleged discrimination occurred, and the corresponding limitation period began to run, at the time the decision to discharge Keene was communicated to him in the notice of August 25, 1998. This is so even though the actual loss of employment did not occur until thirty days later. The Ricks court instructs us that the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts actually become painful. Id. at 504. Thus, we hold that Keene’s cause of action for wrongful termination accrued when he received the notice of his termination on August 25, 1998.

Keene’s cause of action for wrongful termination accrued, and the statute of limitations began to run, when he received the notice of his termination. Thus, the trial court properly granted Appellee’s motion for judgment on the pleadings and properly denied Keene’s subsequent motion to correct error. Affirmed.
MATHIAS, J., and RILEY, J., concur.

Posted by Marcia Oddi on Friday, March 18, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions- 7th Circuit posts two today

Leaf, Larry J. v. Shelnutt, Ronald (SD Ind.,Larry J. McKinney, Chief Judge) [41 pp.]

Before EASTERBROOK, RIPPLE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Early in the morning of May 5, 2001, Marion County Sheriff’s Deputy Ronald Shelnutt shot and killed John Patrick Leaf. Members of Mr. Leaf’s family (“the Leafs”) brought this action pursuant to 42 U.S.C. § 1983 and Indiana state law for alleged constitutional violations and other torts arising from this tragic event. The district court granted in part and denied in part Deputy Shelnutt’s motion for summary judgment. For the reasons set forth in the following opinion, we now reverse the district court and remand for further proceedings.

Richardson, Floyd v. Briley, Kenneth (ND Ill.) [18 pp.]

Posted by Marcia Oddi on Friday, March 18, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Interesting update on status of former Marble Hill nuclear power plant

"Building razed at Marble Hill power plant site" is the headline to a story today in the Louisville Courier Journal, accompanied by a photo and map.

Public Service Indiana abandoned the project in the early '80s after it failed to gain a vote of confidence from a special Marble Hill Task Force put together by then-Gov. Robert D. Orr. I accompanied the Task Force members on a tour of the facility, and vividly recall walking though the massive concrete structures, built to withstand enormous forces. Mega-millions of dollars were involved. As a result, I read with interest:

One of the buildings at the abandoned Marble Hill nuclear power plant site near Madison, Ind., was blown up by a demolition crew earlier this week.

Debbie Ford, who owns the land with her husband, Dean Ford, said other structures including two towers remain standing.

Debbie Ford said she and her husband sold the buildings to a Michigan company -- she said she couldn't recall the name of the company and didn't know what plans it had for the other buildings.

Dean Ford owns a lumber company and an agricultural equipment business in Madison. He could not be reached for comment.

His lumber company bought Marble Hill, including the buildings, in November 1998, according to PSI Energy, which sold the property to his business.

Marble Hill was abandoned before it was finished; it never opened as a nuclear facility.

The demolition this week was the second effort to blow up the building.

Stephanie Evans, a dispatcher for the Jefferson County Sheriff's Department in Madison, said the sheriff's office was notified a few weeks ago that a demolition company planned to use dynamite to blow up one of the Marble Hill structures.

She said the structure did not fall in as planned when the dynamite exploded.

"It didn't move the building," Evans said.

Posted by Marcia Oddi on Friday, March 18, 2005
Posted to Indiana Government

Law - History buffs may enjoy story today on filibuster precedent

"Filibuster Precedent? Democrats Point to '68 and Fortas: But GOP Senators Cite Differences in Current Effort to Bar Votes on Judges" is the headline to this story today in the Washington Post. Some quotes:

Judiciary Committee Chairman Arlen Specter (R-Pa.) told his panel this month that the judicial battles have escalated, "with the filibuster being employed for the first time in the history of the Republic." Sen. Orrin G. Hatch (R-Utah) said in a Senate speech last week, "The crisis created by the unprecedented use of filibusters to defeat judicial nominations must be solved."

Such claims, however, are at odds with the record of the successful 1968 GOP-led filibuster against President Lyndon B. Johnson's nomination of Abe Fortas to be chief justice of the United States. "Fortas Debate Opens with a Filibuster," a Page One Washington Post story declared on Sept. 26, 1968. It said, "A full-dress Republican-led filibuster broke out in the Senate yesterday against a motion to call up the nomination of Justice Abe Fortas for Chief Justice."

A New York Times story that day said Fortas's opponents "began a historic filibuster today." As the debate dragged on for four days, news accounts consistently described it as a full-blown filibuster intended to prevent Fortas's confirmation from reaching the floor, where a simple-majority vote would have decided the question. The required number of votes to halt a filibuster then was 67; filibusters can be halted now by 60 of the Senate's 100 members.

Posted by Marcia Oddi on Friday, March 18, 2005
Posted to General Law Related

Ind. Law - Impact of same-sex ban in Michigan constitution

An editorial yesterday in the Indianapolis Star was headlined "Don't close door on civil unions." It urges:

The proposal as it now stands goes too far -- not only banning same-sex marriages but also closing off even the possibility of civil unions in the future.

Civil unions do not exist in Indiana, and may never be implemented here. But current legislators shouldn't block the elected leaders who will one day follow them from even considering such an accommodation.

The impact of such a ban in the Michigan Constitution, however, as recent stories show, is not simply limited to future generations.

The language of subsection (b) of the Indiana Senate's proposal, SJR 7, reads:

(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]
Last November the State of Michigan amended its constitution to include the following language:
THE UNION OF ONE MAN AND ONE WOMAN IN MARRIAGE SHALL BE THE ONLY AGREEMENT RECOGNIZED AS MARRIAGE OR SIMILAR UNION FOR ANY PURPOSE.
The day after the proposal was adopted by the voters, the Lansing State Journal published this story, headlined "Proposal 2 supporters taking aim at same-sex benefits: Judges likely to decide fate of ban on gay marriages." A quote:
After months of saying they wouldn't target domestic partner benefits, proponents of traditional marriage who backed Proposal 2 said Wednesday they plan to review benefit policies of all public employers.

Policies that extend health insurance, bereavement leave and other benefits solely to homosexual couples must be changed as employee contracts expire or they'll be in violation of the Michigan Constitution, proponents said.

"Benefits only to homosexuals are a formal recognition of a homosexual relationship as equal or similar to marriage," said Gary Glenn, president of the American Family Association of Michigan. "And the voters have said they don't want that."

Today the Detroit Free Press is reporting:
LANSING, Mich. (AP) -- Local governments and the state won't be able to provide benefits for same-sex partners of employees in future contracts now that voters have approved a constitutional ban on gay marriage, the state's attorney general said Wednesday.

In the first legal interpretation of Proposal 2, Attorney General Mike Cox wrote in an opinion that Kalamazoo's policy of offering health and retirement benefits to same-sex partners violates the amendment. Voters passed the measure 59 percent to 41 percent in November.

The Fort Wayne Journal Gazette is also carrying the above AP story today.

The Kalamazoo Gazette has a story today headlined: "City under fire over same-sex benefits plan Kalamazoo to review policy after attorney general says it violates state constitution." Some quotes:

The attorney general wrote in his 21-page opinion that the city of Kalamazoo's policy gives same-sex relationships "marriage-like" status and "violates the (constitutional) amendment's prohibition against recognizing any 'similar union' other than the union of one man and one woman in marriage."

Cox said that while the amendment did not mention domestic-partner benefits, "one thing that would clearly have been evident to voters was that benefits provided based on the recognition of a 'similar union' were at issue and might be eliminated if the measure passed."

"The city's contracts fall squarely within the scope of what the amendment prohibits," he wrote.

Posted by Marcia Oddi on Friday, March 18, 2005
Posted to Indiana Law

Ind. Decisions - Federal Judge McKinney rules for environmental activist

"Blair wins suit over his rights at Cheney rally" is the headline to a story by Maureen Hayden in today's Evansville Courier& Press. Some quotes:

A federal judge says the arrest of environmental activist John Blair at a 2002 appearance by Vice President Dick Cheney violated Blair's constitutional rights and entitles the activist to monetary damages.

According to the ruling, issued Thursday by U.S. District Judge Larry McKinney, Evansville police officers violated Blair's First Amendment rights by ordering him out of a large "no-protest" zone, and arresting him when he questioned their right to do so. City police were acting at the direction of the Secret Service when they banned protesters from appearing near The Centre, where Cheney spoke at a Republican fund-raiser for Rep. John Hostettler.

McKinney said the city bears responsibility for guaranteeing security measures taken by city police officers protect the constitutional rights of its citizens. McKinney also ruled that a "reasonable officer under the circumstances would have known that no probable cause existed to arrest Blair for interfering with a police officer."

Blair said he hoped the ruling sent a message to the White House, which has been under attack by civil libertarians for restricting public protests at political events. "The Bush administration likes to talk about freedom, but it's systematically stripping it away," said Blair. * * *

And both the city and the four officers are liable for violating Blair's Fourth Amendment right for his arrest on a charge of disorderly conduct. The amount of damages has yet to be decided. Blair and the city could go to trial to determine the amount of damages the city would have to pay for violating Blair's civil liberties, or the parties could reach a settlement.

An AP story reports:
The restrictions police put on protesters went beyond what was needed for security even in the post-9/11 climate, District Judge Larry McKinney wrote in his 34-page ruling.

"The restriction of protesters to an area 500 feet away from the only entrance used by attendees, and on the opposite end of the building from where Vice President Cheney would enter the facility and from where the majority of people attending the event would park, burdened speech substantially more than was necessary to further the defendants' goals of safety," McKinney wrote.

The Indiana Civil Liberties Union sued the city in January 2003 on behalf of environmental activist John Blair. The suit alleged that police violated Blair's constitutional rights by arresting him for leaving the designated protest area during Cheney's visit on Feb. 6, 2002.

As of this morning, Chief Judge Larry J. McKinney's ruling is not available on the SD Ind. website - it will be here, if/when posted (scroll down to Judge McKinney).

Posted by Marcia Oddi on Friday, March 18, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Gov. Daniels makes appointments to Gaming Commission

The Louisville Courier Journal reports today, via the AP, that:

Four new members of the Indiana Gaming Commission are expected to be in office by the time the commission starts considering a new developer for the planned Orange County casino.

Yesterday Gov. Mitch Daniels appointed three people to the seven-member board, which he had criticized for its selection last year of Donald Trump's troubled gambling company to build and operate a casino in French Lick. * * *

The new appointees are:

Timothy Fesko of Dyer, an insurance agent who served five terms as a Republican state representative from Lake County.

Bryan Robinson of Greenville, who owns real estate and auction companies in Southern Indiana.

Harold Calloway of Evansville, who withdrew in January as Daniels' pick for state insurance commissioner, saying he would take too great a financial loss to give up his State Farm Insurance agency.

Calloway will not need to give up his private business to serve on the Gaming Commission, which is a part-time job, said Jane Jankowski, a spokeswoman for the governor.

As a story today by Jennifer Whitson in the Evansville Courier& Press notes:
The Indiana Gaming Commission will have two members from Evansville after Gov. Mitch Daniels announced the appointment of businessman Harold Calloway on Thursday.

Daniels asked all seven members of the commission to resign by late January. Four complied with the request. Evansville attorney Don Vowels, who had served as the commission's chairman, did not.

Vowels' term runs through August 2007. Calloway will take over the term of Robert Barlow and will serve through August 2005, but could be reappointed to the seat.

Vowels' chairmanship is most likely over because that position is appointed by the governor. Daniels' spokeswoman said he had not yet made a decision on whom to appoint to the last vacant seat or as chairman.

Earlier this year, Daniels chose Calloway to run the Department of Insurance. Calloway at first accepted, but later turned down the position because leaving his insurance company early would have cut his pension benefits.

But Calloway said Thursday that he was looking forward to getting up to speed on the Gaming Commission assignment, which he first heard about early this week.

The Governor of our sister state to the west, Illinois, is also revamping a gaming board, as reported here in the Chicago Tribune. Some quotes:
Gov. Rod Blagojevich on Thursday announced a long-awaited revamp of the Illinois Gaming Board as an Illinois House committee set the stage for a floor debate over whether riverboat gambling is an overall drain on public resources and should be abolished.

The gaming panel is supposed to have five members but has lacked a quorum for more than six months as Blagojevich dragged his feet on replacements for three departed members.

Now he is proposing to start with a clean slate of new members--three beginning next week and two in July. If the state Senate ratifies Blagojevich's choices, the panel will be headed by former state lawmaker and retired Circuit Court judge Aaron Jaffe and will include Sheila Simon, the daughter of the late U.S. Sen. Paul Simon.

Blagojevich also proposed a number of new restrictions on the activities of Gaming Board members, including an extension from the current 1 year to 5 years for the time gambling regulators must wait before they can take casino industry jobs.

The governor's announcement comes one year after the board came under attack from Blagojevich and Atty. Gen. Lisa Madigan for its decision to award the license once held by the bankrupt Emerald casino to a company that, like Emerald, planned to open in Rosemont.

Madigan has linked the town and its longtime mayor, Donald Stephens, to organized crime, an accusation that Stephens and village officials deny.

Posted by Marcia Oddi on Friday, March 18, 2005
Posted to Indiana Government

Thursday, March 17, 2005

Ind. Courts - South Bend Tribune editorializes against SJR 1

An editorial today in the South Bend Tribune begins:

When Joint Resolution 1 was introduced in the Indiana Senate, it was an ill-conceived, agenda-driven piece of legislation that didn't deserve to see the light of day. And then it was made worse.

The constitutional amendment being considered would take direct authority from the people of Indiana. And it would upset the balance of power between the legislative, executive and judicial branches of government.

Those are the kindest things we can think of to say about the proposal to give the state Senate hiring and firing power over Supreme Court justices and Court of Appeals judges. It is surprising that the Senate approved this misguided resolution.

The amendment, as introduced, called for Senate confirmation of Supreme Court and appellate judges, and for only appellate judges to stand for partisan re-election for subsequent terms.

We surely would have opposed politicizing the Court of Appeals in such a manner.

The version passed by the Senate last week would strip authority from voters altogether and require not only that Supreme Court and appellate nominees be confirmed by the Senate, but that they also be voted on by the Senate for additional terms.

Instead of being independent and apolitical, judges in the state's highest courts would have to look to the party in power at the moment to keep their jobs.

For the most recent ILB entry on SJR 1, check here. Here is a link to the version of SJR 1 that passed the Senate, as described by the Tribune editorial. Here is the roll call vote on third reading in the Senate.

Posted by Marcia Oddi on Thursday, March 17, 2005
Posted to Indiana Courts

Environment - City receives an offer it can refuse

The Terre Haute Tribune Star reports today that:

An offer made by the president of Wabash Environmental Technologies to sell the property to the city has met a cool reception from city officials. * * *

Mayor Kevin Burke, who has called for study of possible locations for a facility to replace the city's 40-year-old treatment plant, said the use of Hagerman's facility posed problems.

"The city's official position is until Wabash Environmental Technologies has a clean bill of health from the Indiana Department of Environmental Management, until they have a clean bill of health from the Environmental Protection Agency, until they have a clean bill of health from the U.S. Attorney's office in Indianapolis, it would not be prudent for the city to entertain any offer from them," Burke said.

Hagerman's facility was raided by federal and state law enforcement agents on Dec. 16, during which officers removed several boxes of papers from the company's files.

Posted by Marcia Oddi on Thursday, March 17, 2005
Posted to Environment

Ind. Decisions - 7th Circuit issues two today

USA v. Baskin, Dustin C. (WD Wis.) [9 pp.]

Harper, George v. Albert, Lieutenant
(SD Ill.) [33 pp.]

Posted by Marcia Oddi on Thursday, March 17, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court issues two today

Brownsburg Community School Corporation v. Natare Corporation (3/17/05 IndSCt) [Antitrust]
Boehm, Justice

We hold that the Indiana Antitrust Act does not create a civil treble damage remedy against an arm of government. * * *

In March 2003 Natare sued the School Corporation, Schmidt, and Spear, alleging that the three had conspired to exclude Natare from consideration as a supplier for the pool and bulkhead in violation of the provision of the Indiana Antitrust Act prohibiting combinations in restraint of trade, Indiana Code section 24-1-2-3 (2004). Natare alleged that the wording of the specifications unreasonably limited competition by requiring bidding contractors to use Myrtha Pool materials and equipment supplied by Spear, and that Spear had a significant role in determining whether other products were “equal.” Pursuant to Indiana Code section 24-1-2-7, the complaint sought treble damages, costs, and attorney fees for violations of the Indiana Antitrust Act. * * *

Because Natare has no claim for damages under the Public Purchasing Statute, it seeks to bring its claim under the Indiana Antitrust Act. Ind. Code § 24-1-2-1—12 (2004). The principal issue is whether a governmental entity is subject to the private treble damages remedy provided for violation of the antitrust act. * * *

For the reasons already given, we do not read our statute to provide liability of governmental agencies. In this conclusion we join Massachusetts, New Jersey, Oklahoma and New York in rejecting the federal state action immunity doctrine under state antitrust law. * * *

The order of the trial court denying the motion of Brownsburg Community School Corporation for judgment on the pleadings is reversed. This case is remanded with direction to grant the School Corporation’s motion for judgment on the pleadings.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.

Joshua Sandlin v. State of Indiana (3/17/05 IndSCt) [Criminal Law & Procedure]
Sullivan, Justice
Defendant Joshua Sandlin pled guilty to robbery. In March, 1999, the trial court sentenced him to ten years in prison, four years of which were suspended during which Defendant was placed on probation. Defendant’s probation began in February, 2001. While on probation, Defendant committed five counts of burglary and theft for which he was convicted.

The State asked the original trial court to revoke Defendant’s probation on grounds of the burglary and theft convictions. The trial court ordered Defendant to serve the entire four years of the original sentence that had previously been suspended. * * *

Although Defendant never explicitly says so, we infer from his argument that he contends that the trial court in this case believed that it was required to impose the entire amount of the sentence originally suspended. If that had been the case, it might well be appropriate to remand this case to the trial court for reconsideration in light of our holding in Stephens.

We have reviewed the transcript of the probation revocation hearing and find nothing in it indicating that the trial court believed it was required to impose the entire amount of the sentence originally suspended. Absent a fairly explicit statement to the contrary, we presume a trial court is aware of its authority to order executed time following revocation of probation that is less than the length of the sentence originally imposed. We grant transfer and summarily affirm the decision of the Court of Appeals. Ind. Appellate Rule 58(A)(2).

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

Posted by Marcia Oddi on Thursday, March 17, 2005
Posted to Ind. Sup.Ct. Decisions

Not law - but potentially entertaining

Abe Aamidor, a reporter at the Indianapolis Star, has sent a note asking:

I thought you might know of Indiana-based bloggers who specialize in blogging about food. Can be any food - maybe even suing fast-food restaurants, or Nabisco, or whatever. But if you know people who wholly or in large measure blog about food (or restaurants, or natural farming), I'd like to know about them.
I replied:
Sorry Abe, I don't know any Indiana (or elsewhere) food bloggers, but I will look forward to reading your article!
He persisted:
Thanks for the quick reply. Now, from the shameless self-promotion department, what are the chances that you could post an item on Indiana Law Blog with my contact info, in case some of your members do have a keen interest in food, diet, dieting, nutrition, organic foods, or anything like that? Thanks - Abe Aamidor
Contact him: 800-669-7827 ext 6472, or locally at 317-444-6472, or via e-mail at abe.aamidor@indystar.com.

Posted by Marcia Oddi on Thursday, March 17, 2005
Posted to General News

Environment - Several stories today, including resignation of a Daniels' appointee

In a surprise move, yesterday was the last day at IDEM for Gov. Daniels' appointee (and Mike Pence' brother) Greg Pence. As Tammy Webber of the Indianapolis Star reports today, in a story headlined "Official leaving environmental agency: Efficiency czar, who came from oil firm that had been cited by state, says his work is done":

The Indiana Department of Environmental Management's deputy commissioner said Wednesday he is leaving after 2 1/2 months on the job because he has done all he can to streamline the agency.

Greg Pence, former chief executive officer of Columbus-based Kiel Bros. Oil Co., became the agency's second-in-command in January.

"I am the spare groom at the wedding," Pence, brother of U.S. Rep. Mike Pence, R-Ind., said Wednesday in explaining that he was no longer needed at the agency. "I would be a bottleneck."

Although Greg Pence had no environmental credentials, his job was to use his management expertise to help Commissioner Tom Easterly restructure an agency that had become a lightning rod for industry complaints about being slow to issue permits and having sometimes unfair and confusing rules, Pence and Easterly said.

"(Gov. Mitch Daniels) thought I needed some business help," said Easterly, who had experience as an environmental official in the steel and utility industries and in New York's state environmental agency but had never managed a large agency or company.

"Now Greg is convinced I don't need it."

The pair eliminated several deputy director positions, dismissing seven employees in January, and assistant commissioners of the agency's divisions are now required to report directly to Easterly. Pence also reviewed Internet technology, contracts and human resources, "figuring out how to make the system work even better," Easterly said. * * *

Easterly said he would not replace Pence, whose last day was Wednesday. Pence's salary was $91,000 a year.

Pence's appointment raised eyebrows among some agency employees because his former company had been cited by the agency for environmental violations in the past. All but one of the enforcement cases has been resolved, said agency spokeswoman Laura Pippenger. Kiel Oil, which operated Tobacco Road convenience stores and gas stations, filed for Chapter 11 bankruptcy last June, and Pence resigned then. It since has been purchased by another company.

Kind of odd ...

"EPA mercury rules too lenient, Hoosier environmentalists say" is the headline to this AP story in the Fort Wayne Journal Gazette today. In a related annuoncement:

On March 17, 2005, the Indiana Department of Environmental
Management's Office of Air Quality will hold another meeting of the
mercury workgroup. The meeting will be held in Indianapolis at the
Indiana Government Center South, Conference Room C from 1:00 p.m. to
4:00 p.m. An Agenda for the March 17 meeting is attached.

Representatives from the Department of Natural Resources, Utilities
Solid Waste Activities Group, American Coal Ash Association, and
National Energy Technology Laboratory will discuss issues related to
coal combustion waste.

IDEM has also arranged a conference call number (317-233-3088) for
those unable to attend the meeting in person.

And an intriguing story today in the Chicago Tribune is headlined: "Illinois: Land of Scrap Tires? State excels in converting old tires into new uses, but there are problems." Some quotes:
Wisconsin is known for cheese. California has Hollywood; Florida its orange juice and beaches; Vermont its maple syrup.

And Illinois? Scrap tire recovery capital of the nation.

While it may carry less cachet than being the Land of Lincoln, Illinois has earned the distinction of being the only major state to grind up most of its own scrap tires and millions more brought in from other states.

After all, the ubiquitously mundane, 23-pound standard tire is concocted to be virtually indestructible. The hundreds of millions of tires stockpiled across the country over decades had become a chronic, growing public health and environmental threat. * * *

California, Michigan and Texas convert more tires for market use than Illinois, but only this state and Michigan have such robust demand for scrap tires that they import millions of them. In addition, Illinois' 40,000 stockpiled tires are minuscule when compared with the 25 million stockpiled in Michigan, 2 million in California and 53 million in Texas.

As the waste tire importing states of Illinois and Michigan adjoin Indiana, it might seem as though we shouldn't have any waste tire disposal problems here in Indiana ...

Posted by Marcia Oddi on Thursday, March 17, 2005
Posted to Environment

Wednesday, March 16, 2005

Law - Calif. Judge Backs Same-Sex Marriage

There have been a number of stories this week about the trial court ruling in California holding their defense of marriage act unconstitutional, but no copies of the opinion. Now the decision is available, albeit as a 27-page scanned version of the ruling - access it here from Findlaw.com.

Here are some quotes from the Washington Post coverage:

The ruling comes almost exactly a year after San Francisco Mayor Gavin Newsom challenged state law during a month-long period in which he authorized the marriages of more than 4,000 gay couples at City Hall.

The California Supreme Court blocked the city from issuing marriage licenses to same-sex couples and later nullified those unions, saying Newsom's actions violated state laws. Monday's ruling stems from lawsuits brought by the city and a dozen couples challenging the constitutionality of those laws.

In a 27-page ruling, Superior Court Judge Richard A. Kramer said the state would have to prove that it has a compelling interest in denying gay men and lesbians a right afforded to heterosexuals. "It appears," he wrote, "that no rational purpose exists for limiting marriage . . . to opposite-sex partners."

The state attorney general's office had argued that the definition of marriage as a union between a man and a woman was part of "California's traditional understanding" and was deeply rooted in state history. But Kramer noted that the same rationale had been used to defend the old ban on interracial marriage.

"Same sex marriage cannot be prohibited solely because California has always done so before," Kramer wrote.

He also rejected the argument that California's ban did not violate the equal protection rights of gays because of other laws that provide gay couples virtually the same rights that are guaranteed in marriage. In fact, he said, such a policy "cuts against the existence of a rational government interest for denying marriage to same-sex couples."

Kramer noted that opponents had warned that same-sex marriage could open the door to marriage between siblings or involving children. But the judge noted that the case law upholding same-sex marriage "is not saying that therefore anyone can marry anyone else," and that the government would still be able to claim a legitimate interest in blocking incestuous or underage unions.

Looking through the opinion, Judge Kramer begins near the end of page 21 a discussion of reliance on procreation (as was the case with Indiana's Court of Appeals decision) as a justification for denying marriage to same-sex couples.

Reason Magazine ("the monthly print magazine of 'free minds and free markets'") has an interesting take on the California ruling here.

And here
is the link to C-SPAN's America & the Courts page, where you can watch:

ON AMERICA & THE COURTS
WA State Supreme Court Argument
In Olympia, Washington the Supreme Court hears oral arguments in two cases regarding same-sex marriage. The cases, which the Court consolidated into one argument, question whether Washington’s Defense of Marriage Act, which prohibits same-sex marriages, is unconstitutional under the state constitution.
FROM SATURDAY, MARCH 12

Posted by Marcia Oddi on Wednesday, March 16, 2005
Posted to General Law Related

Ind. Courts - Fort Wayne Journal Gazette editorializes about Court network

The Fort Wayne Journal Gazette has an editorial today about the statewide court case management system. Some quotes:

Patience is needed, but the committee [the Indiana Supreme Court’s judicial technology and automation committee] can hardly blame people from being miffed. Since 2002, more than $6 million has been spent to get the management system in place to link all 92 counties as well as the state departments of correction, motor vehicles, family and social services, revenue and the Indiana State Police.

The project is funded by a $2 increase in court fees. The committee does not know how much more this will cost before it is completed, but the vice chairman of the judicial technology committee, Court of Appeals Judge Paul Mathias, disputes the $74 million price tag bandied about by Indianapolis media.

The most glaring setback occurred when Computer Associates, an Islandia, N.Y.-based consulting firm building the network, found its software inadequate for the task during a recent test with Marion County court staffers. Indiana has stopped payments to Computer Associates, but the committee appears willing to take up the company’s offer to build a whole new system at its own expense.

It looks like a boondoggle, but this is far from some pork barrel spending program to line the pockets of a few. In the age of high-speed computer networks, Indiana’s courts shouldn’t plod along in an electronic Jurassic Age. Hoosiers should counterweigh the latest mishaps with the ultimate goal. The judicial committee ought to take this opportunity to work out the kinks to assure successes rather than more hiccups.

Posted by Marcia Oddi on Wednesday, March 16, 2005
Posted to Indiana Courts

Ind. Decisions - Supreme Court posts one today

Anthony Graves v. State of Indiana (3/16/06/05 IndSCt) [Criminal Law & Procedure]
Shepard, Chief Justice

A generation ago, Anthony Graves pled guilty to burglary and got a suspended sentence. He is now litigating his second petition for post-conviction relief, alleging he received ineffective assistance of counsel during the proceedings on the first petition.

The Court of Appeals reversed the trial court’s denial of the petition, holding that had the first post-conviction lawyer performed certain acts the result “could have been different.” This misreads the standard applicable to claims about the performance of post-conviction counsel. Having granted transfer, we affirm the trial court. * * *

II. Performance of Graves’ Counsel. In the present case, petitioner’s counsel Lewis appeared at the post-conviction relief hearing, directly examined Graves on his recollection of the plea hearing, tendered an affidavit of the presiding judge stating he had no recollection of the plea hearing, and submitted an affidavit stating the court reporter at the time of the plea hearing was no longer available. (1st P-CR Tr. at 63-74). Lewis certainly did not abandon Graves. Here, the evidence presented at the post-conviction relief hearing thus does not lead “unerringly and unmistakably to a conclusion opposite” that of the post-conviction court. Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999) (quoting Weatherford v. State, 619 N.E.2d 915 (Ind. 1993)).

Conclusion. We affirm the trial court’s denial of Graves’ second petition for post-conviction relief.

Dickson, Sullivan, and Boehm, JJ., concur.
Rucker, J., concurs in result without separate opinion.

Posted by Marcia Oddi on Wednesday, March 16, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals posts four today


Edward D. Perrey v. State of Indiana
(3/16/05 IndCtApp) [Criminal Law & Procedure]
Mathias, Judge

Edward Perrey (“Perrey”) was convicted of Class C felony criminal confinement and Class D felony auto theft in Allen Superior Court. He appeals his criminal confinement conviction arguing that the evidence was insufficient to support his conviction. Concluding that the evidence was sufficient, we affirm. * * *
BAILEY, J., concurs.
SULLIVAN, J., concurs in result with opinion. * * * The majority opinion here, however, focuses upon what I perceive to be an irrelevant and therefore confusing factor. In my view, the fact that the maternal grandmother in Richards and that Christina, the child’s mother in the case before us, did not consent is irrelevant and was not a basis of the conviction in either case. Accordingly, Christina’s lack of consent in this case is of no moment.

Here, Perrey’s conviction was based upon the charge that A.B. was confined “without the person's consent.” Tr. at 321. “[T]he person” necessarily referred to A.B., i.e. the person confined, and had nothing to do with whether or not Christina, the child’s mother, consented. Accordingly, pursuant to the case law holding that a child of tender years is incapable of consent, the conviction is sustainable under subsection one of the statute. It is upon this basis that I concur in result.


Michael A. Sanders v. State of Indiana
(3/16/05 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge
Case Summary. Michael Sanders appeals the trial court’s granting of the State’s second petition for reimbursement of investigative costs. We reverse.

Issue. Sanders raises two issues. We address the dispositive issue, which we restate as whether the trial court properly granted the State’s petition for investigative costs that was filed after we reversed the granting of an earlier motion for release/application of funds because it was not timely filed. * * *

Despite our earlier ruling, the State refiled the same motion. The State provides no explanation for its actions and we cannot attempt to ascertain why it thought such a request would be permissible a second time around, especially given that almost an entire year had passed since it filed the first untimely motion. What was improper on direct appeal is still improper and the recaptioning of a petition cannot and does not change the relief requested in the petition. The trial court erroneously granted the State’s petition for investigative costs.

Conclusion. The trial court improperly granted the State’s petition for investigative costs, which was refiled after we ruled that a similar motion was untimely filed. We reverse. Reversed.
DARDEN, J. and MAY, J. concur

Ronnie E. Polk v. State of Indiana (2/11/05 IndCtApp) [Criminal Law & Procedure]
[Previously NFP]
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:
Whether Polk was denied the effective assistance of trial counsel; and
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.” * * *

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

Ernest Smith v. State of Indiana (2/9/05 IndCtApp) [Criminal Law & Procedure]
[Previously NFP]
Najam, Judge
* * * We conclude that the PCR 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.

Posted by Marcia Oddi on Wednesday, March 16, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts five today

Grupee, James G. v. Gonzales, Alberto R. (Immigration) [4 pp.]

Kobs, Elvis v. United WI Insur Co (WD Wis.) [9 pp.]

J.S. Sweet Co. Inc. v. Sika Chemical Corp (SD Ind., Richard L. Young, Judge) [14 pp.]

Before FLAUM, Chief Judge, and EASTERBROOK and WOOD, Circuit Judges.
FLAUM, Chief Judge. J.S. Sweet Company, Inc. (“J.S. Sweet”) brought this diversity suit against Sika Chemical Corp. (“Sika”), alleging that defendant committed the tort of spoliation of evidence by failing to preserve materials relevant to a lawsuit between J.S. Sweet and one of its customers. Plaintiff also sued for breach of contract. The district court granted summary judgment on both counts, and Sweet appealed. We hold that Sika had no duty to preserve the evidence in question, that its loss of the evidence did not, as a matter of law, harm J.S. Sweet, and that Sika did not breach its contract with plaintiff. Accordingly, we affirm.

USA v. Williams, Winthrop (SD Ind.,Larry J. McKinney, Chief Judge) [5 pp.]

Before BAUER, POSNER, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Defendant-Appellant Winthrop P. Williams, Jr. challenges the denial of his motion to suppress evidence seized during a search of his home. The evidence led to his indictment and conditional plea of guilty on one count of possession with intent to distribute more than 50 grams of cocaine. Specifically, Williams takes issue with a warrantless search of his residence, conducted immediately prior to a search authorized by a warrant, where the police first observed the evidence at issue. The district court found that the independent source doctrine applied in this case and denied the motion to suppress. We affirm.

Ezell, Stephen v. Potter, John E. (ND Ind.,Philip P. Simon, Judge) [19 pp.]

Before FLAUM, Chief Judge, and POSNER and ROVNER, Circuit Judges
ROVNER, Circuit Judge. Stephen Ezell, a longtime employee of the United States Postal Service, sued his employer for race, gender and age discrimination. He contended that he was treated in a disparate manner based on these prohibited factors and also that he was subject to a hostile environment. The district court granted summary judgment in favor of the Postal Service on all of the claims. We affirm in part and vacate and remand for further proceedings in part. * * *

Ezell has not presented sufficient evidence to sustain a hostile environment claim and we therefore affirm judgment in favor of the defendant on that claim. But for the reasons we have stated above, Ezell’s race, sex and age claims are sufficiently supported to survive summary judgment and we therefore vacate that part of the judgment and remand for further proceedings. Ezell’s damages may be modest but he may take these claims to trial.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.

Posted by Marcia Oddi on Wednesday, March 16, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Where is Part II of the ILB report on the State-Wide Case Tracking System?

Part II is underway, look for it early next week. I'm reviewing a number of documents and I've talked with, or hope to hear from, a number of you.

Posted by Marcia Oddi on Wednesday, March 16, 2005
Posted to Indiana Courts

Ind. Courts - Chief Justice Shepard to swear in new court interpreters

Via a release today:

Indiana Chief Justice Randall T. Shepard will swear in the first five people to undergo the rigorous process required to become a certified court interpreter in Indiana.

The ceremony will take place in the Supreme Court Court Room on the third floor of the Indiana State House at 2 p.m. on March 23, 2005. The public and the media are welcome to attend.

The Spanish-speaking interpreters were certified through a national program that is designed to bring a high level of skill to translations in Indiana 's courtroom.

“This is an important milestone in our effort to make sure that Indiana's courtrooms are truly open to everyone,” said Chief Justice Shepard.

Chief Justice Shepard will deliver the oath of office in Spanish. The oath was drafted by his staff and translated into Spanish by his former law clerk, Marisol Sanchez, who is an attorney with the Indianapolis law firm of Bose McKinney.

Access earlier ILB entries on the court interpretor program from 12/17/04, 12/28/04 and 12/29/04.

Posted by Marcia Oddi on Wednesday, March 16, 2005
Posted to Indiana Courts

Ind. Courts - No-smoking policy applies to judge, says commissioner

The South Bend Tribune reports today, in a story by James Wensits that begins:

St. Joseph County's new no-smoking rule reached out and touched another Tuesday.

It turns out that Chief Deputy Auditor John Lentz is not alone among prominent people who smoke in their county offices.

Superior Court Judge William Albright is known to light up a smoke in his chambers now and again, but maybe not for long.

"He shouldn't be smoking, either," County Commissioner Steve Ross, D-District 2, said Tuesday. * * *

Lentz, whose complicated duties and extensive institutional knowledge make him a virtually indispensable county employee, made headlines when he intimated that he would quit his job rather than submit to the no-smoking rule.

Albright has issued no such ultimatum but could come under scrutiny anyway.

"We have no courthouse space available for smokers," Ross said, adding that judges are not exempt.

"There is nobody in this county above the law," Ross maintained. "Richard Nixon is dead, but ask him."

Commissioner Cindy Bodle, D-District 3, said she doesn't know whether judges can mandate whether they can smoke. "I would think that the policy's for everybody."

Chief Superior Court Judge John Marnocha said he wondered about Albright's smoking when he read a newspaper story about Lentz.

Marnocha said neither he nor county officials have the authority to discipline or terminate a judge, but he promised he would do his best "to encourage compliance with the spirit of the ordinance."

Marnocha said that as chief judge, he disallowed smoking in a courthouse break room about a year ago and was also successful in banning smoking in a vending machine room in the tunnel between the courthouse and the County-City Building.

Posted by Marcia Oddi on Wednesday, March 16, 2005
Posted to Indiana Courts

Ind. Law - 'American Justice: Countdown to an Execution'

A&E's "American Justice: Countdown to an Execution" tonight at 8 p.m. features the Darnell Williams history. See this writeup in the South Bend Tribune and this earlier ILB entry.

Posted by Marcia Oddi on Wednesday, March 16, 2005
Posted to Indiana Law

Environment - A view of IDEM from the Town Council level

A story by Glen Werling yesterday in the Bluffton News Banner was headlined "Ossian Council President Tom Woodward Resigns." Some quotes:

“Shock and awe” was how Ossian Town Manager Dave Hacker described a major announcement made at the end of the Ossian Town Council meeting Monday night.

“Effective immediately, I am resigning my position as council representative of the Ossian West precinct,” said council president Tom Woodward.

Woodward’s announcement caught his fellow council members completely off guard and left them speechless.

Woodward didn’t even wait around for the meeting to adjourn. After making his announcement, he spoke briefly about the decision, got up, put on his coat and left. * * *

The 66-year-old Woodward added that his decision was not based on any health reasons. He just decided that it was time to retire. Although after he had got up from the table, he admitted that the stress of the job had played a major role in his decision.

Woodward has taken it upon himself in recent years to try and guide the town through major water, sewer, and storm water projects. However, as the projects have progressed, it is becoming more and more apparent that the town’s needs are exceeding its financial means. That was a stress that Woodward could not hide at every meeting he attended.

Even Monday night, as he updated the town on his partially successful attempt to get the state to keep Ossian designated as a combined sewer overflow system town, the stress showed. Woodward had hoped for a total victory on this front in order to keep the town as far away as possible from the Indiana Department of Environmental Management’s (IDEM) death sentence—the dreaded sewer ban.

However, he managed only a 45-day stay on IDEM’s decision to designate the town as a separated sewage overflow system (SSO). The SSO designation will place the Ossian sewage system under even more stringent rules than it currently operates under. While the SSO designation does not automatically mean the town will face fines or the dreaded ban, it will make it more difficult for the town to avoid them.

“Yes, I would have to say the stress of keeping up was a large part of it,” said Woodward of his decision. “It has been a challenge trying to keep ahead of some of the state requirements being imposed upon us.”

Posted by Marcia Oddi on Wednesday, March 16, 2005
Posted to Environment

Tuesday, March 15, 2005

Ind. Decisions - 7th Circuit posts five today

USA v. Wade, Levar (CD Ill.) [6 pp.]

Before EASTERBROOK, RIPPLE, and EVANS, Circuit Judges. EVANS, Circuit Judge. Bad timing often results in one being in the wrong place at the wrong time. Levar Wade will certainly attest to that, for it was being in the wrong place at the wrong time that resulted in his ticket to a federal prison. Because bad timing is the true cause of his predicament, not an illegal detention or a nonconsensual search, we reject his appeal and affirm the judgment of the district court. * * *
Bland, Lou v. Fiatallis North Amer (ND Ill.) [17 pp.]
Before CUDAHY, MANION and EVANS, Circuit Judges.
CUDAHY, Circuit Judge. A “lifetime” can be a slippery concept in the context of retiree benefits litigation under the Employee Retirement Income Security Act (“ERISA”), 42 U.S.C. §§ 1001 et seq. (2005). This case asks us to consider, on the heels of Vallone v. CNA Financial Corporation, 375 F.3d 623 (7th Cir. 2004), whether designating retiree benefits as “lifetime”really means “for life.” * * *
Fowler, Bobby H. v. Shadel, Scott F. (WD Wis.) [6 pp.]
Before CUDAHY, MANION and EVANS, Circuit Judges.
CUDAHY, Circuit Judge. This bankruptcy case requires us to divine the elusive (and perhaps illusive) nature of an equitable interest in corporate property possessed by a debtor through his ownership of all the shares of capital stock in a closely held corporation. * * *
USA v. Paladino, Robert D. (ND Ill.) [30 pp.]
[Note - this was released Feb. 25th in typescript, but I didn't summarize it at that time. See earlier ILB entry here.]

Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. We have consolidated for decision several criminal appeals, argued the same day, all of which present the key issue left open by the Supreme Court’s decision in Booker v. United States, 125 S. Ct. 738 (2005)—the application of the plain-error doctrine to appeals from sentences rendered under the federal sentencing guidelines before the Supreme Court ruled that they are advisory rather than mandatory. * * *

Crosby is the middle way between placing on the defendant the impossible burden of proving that the sentencing judge would have imposed a different sentence had the judge not thought the guidelines mandatory and requiring that all defendants whose cases were pending when Booker was decided are entitled to be resentenced, even when it is clear that the judge would impose the same sentence and the court of appeals would affirm.

To summarize, we affirm all the convictions and Peyton’s sentence, but we direct a limited remand of the remaining sentences in accordance with the procedure set forth above, thus retaining appellate jurisdiction.

Because this opinion establishes a new rule for the circuit, it was circulated to the entire court before issuance. 7th Cir. R. 40(e). All but two members of the court in regular active service voted not to hear the case en banc. Judges Ripple and Kanne voted to hear it en banc.

[p. 23] RIPPLE, Circuit Judge, dissenting from the denial of rehearing en banc. In the few short weeks since the Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005), the courts of appeals across the Country have produced a significant number of opinions setting forth a broad spectrum of approaches designed to implement the Supreme Court’s decision. The panel opinion before us sets forth the holdings of the first generation of those various cases and then presents a variation of one. Today’s panel opinion thus initiates the second generation of post-Booker opinions, variations on the themes set forth in the first generation of opinions. No doubt, before the vernal equinox arrives, these second generation opinions will produce a further variation and a third generation of opinions will be upon us. Complexity will complicate complexity. The companies that produce the reports of our opinions will be delighted; the notes and comments editors of the Nation’s law reviews will have sufficient fodder for all of next year’s crop of aspiring editors—and the federal courts will raise serious doubts about their capacity to govern.

Is this the course that the Supreme Court expected would follow its pronouncement in Booker? Are we to attribute to the Court a desire that the Nation’s intermediate courts of appeals develop elaborate and diverse approaches to Booker’s holding? * * *

It is indeed difficult to see how the odyssey on which the panel now sends us will do anything other than tie us in knots.2

Booker requires a simple, direct remedy to those harmed by the unconstitutional procedure of former times. We would best serve justice by implementing the Supreme Court’s mandate quickly and efficiently. I respectfully dissent.

[p. 28] KANNE, Circuit Judge, dissenting from the denial of rehearing en banc. I concur with all aspects of the panel’s opinion issued today—except for the proposed mechanism to remedy the unconstitutionally imposed sentences. I believe that the sentences must be vacated and remanded to the district courts for resentencing in light of Booker. * * *

Incredible Tech v. Virtual Tech Inc (ND Ill.) [14 pp.]
Before BAUER, RIPPLE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. As anyone who plays it knows, golf can be a very addicting game. And when real golfers want to tee-it-up, they head for their favorite course, which might be a gem like Brown Deer in Milwaukee, a public course that nevertheless plays host to an annual PGA Tour event every July. What most golfers do not do when they want to play 18 is head for a tavern. Also, most people are quite familiar with Tiger Woods. But who knows Jeff Harlow of Florissant, Missouri? This case is about “golfers” who prefer taverns to fairways and aspire to be more like Harlow than Tiger. Our case concerns video golf. * * *

Posted by Marcia Oddi on Tuesday, March 15, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - One today from Court of Appeals

Bakari LeFlore v. State of Indiana (3/15/05 IndCtApp) [Criminal Law & Procedure]
Robb, Judge

Bakari LeFlore was found guilty by a jury of murder, attempted robbery, a Class B felony, and carrying a handgun without a license, a Class A misdemeanor. The trial court merged the attempted robbery conviction into the murder conviction and sentenced LeFlore to fifty years in the Indiana Department of Correction. LeFlore now appeals his convictions. We affirm. * * *

Conclusion. We hold that the trial court did not err when it excused a juror from service during deliberations. Moreover, the trial court properly admitted the recorded phone conversations into evidence because LeFlore had earlier stipulated to their authenticity. Additionally, the trial court did not err when it allowed the State to use transcripts of the recorded phone conversations to impeach Shabaka’s credibility. Finally, the State satisfied the corpus delicti requirement by presenting evidence independent of LeFlore’s confession that Farries died during the course of an attempted robbery. For these reasons, we affirm LeFlore’s convictions. Affirmed.
RILEY, J., and CRONE., J., concur.

Posted by Marcia Oddi on Tuesday, March 15, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today from Supreme Court

Brian Chism v. State of Indiana (3/14/05 IndSCt) [Criminal Law & Procedure; Statutory Construction]
Shepard, Chief Justice

As technology marches forward, some Indiana trial courts have taken to using home detention monitoring systems that employ global positioning system equipment (commonly called “GPS”). Chism contends that the relevant provisions of the Indiana Code do not authorize these devices. We hold that they do. * * *

The home detention statutes differentiate between “offenders” and “violent offenders.” Ind. Code Ann. § 35-38-2.5-1 to -13 (West 2004). An offender is anyone who is convicted of a crime (and any adjudicated delinquent). Ind. Code Ann. § 35-38-2.5-4 (referring to Ind. Code § 11-8-1-9). As a condition of home detention, a court must require an offender to maintain “a working telephone in the offender’s home” and may require an offender to maintain a “’monitoring device’ in the offender’s home or on the offender’s person, or both.” Ind. Code Ann. § 35-38-2.5-6(6).

This case turns on the definition of “monitoring device.” The Code says that a monitoring device is an electronic device that:

(1) is limited in capability to the recording or transmitting of information regarding an offender’s presence or absence from the offender’s home;

(2) is minimally intrusive upon the privacy of the offender or other persons residing in the offender’s home; and

(3) with the written consent of the offender and with the written consent of other persons residing in the home at the time an order for home detention is entered, may record or transmit:

(A) visual images;

(B) oral or wire communication or any auditory sound; or

(C) information regarding the offender’s activities while inside the offender’s home.

Ind. Code Ann. § 35-38-2.5-3.
Chism acknowledges that the GPS system does not record or transmit any of the sort of information described by subsection (3) above. He argues instead that because GPS monitoring records more than his “presence or absence” from his home, it does not qualify as a “monitoring device” under the Code.

We see the statute as differentiating between (1) those devices that require the offender’s consent (and that of others residing in the home) to allow corrections personnel to watch or listen to things happening inside the offender’s home, and (2) those devices that a court may require without the offender’s consent, devices that simply tell whether the offender is there or not without transmitting images or sound. The GPS monitoring system falls in the latter category. The fact that the GPS will tell corrections where Chism is when he is not at home does not destroy its status as a device that broadcasts only location.

Thus, we hold the Code permits GPS monitoring and affirm the trial court.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

Posted by Marcia Oddi on Tuesday, March 15, 2005
Posted to Ind. Sup.Ct. Decisions

Environment - Mercury Emissions To Be Traded

"Mercury Emissions To Be Traded: EPA Criticized On Pollution Rule" is the headline to this story today in the Washington Post. Some quotes:

The Environmental Protection Agency will issue a rule today to reduce mercury emissions from power plants through a cap-and-trade system that allows some power plants to make deep pollution cuts while others make none.

The rule sets broad national limits on mercury emissions that enable power companies to decide which plants will receive pollution controls -- meaning that even as many states reduce their emissions, some could see increases in emissions of mercury, a potent neurotoxin. * * *

The EPA's actions in developing the mercury rule prompted intense criticism by the agency's inspector general and the nonpartisan Government Accountability Office, which said the agency ignored scientific evidence. Agency staff have charged that the Bush administration's political operatives decided the framework of the new rule in advance and deliberately made it less ambitious in order not to be tougher than President Bush's proposed revisions of the Clean Air Act, the nation's fundamental air pollution law. Bush's proposal, which has been stalled in Congress, is also based on a cap-and-trade system. Agency officials and industry advocates have defended the rulemaking process as open, credible and efficient.

"It is unconscionable EPA is allowing power companies to trade in a powerful neurotoxin -- it is unprecedented and illegal," said S. William Becker, executive director of two bipartisan state environmental groups, the State and Territorial Air Pollution Program Administrators and the Association of Local Air Pollution Control Officials. He predicted that states and cities will be forced to institute a "patchwork quilt" of more stringent local emissions controls.

To justify the new approach, the administration needed to reverse a decision by the Clinton administration to list mercury as a "hazardous air pollutant." That allowed for greater flexibility in designing emission controls and made possible a trading system to mesh with the EPA rule issued last week to control emissions of sulfur dioxide and nitrogen oxides, said Scott Segal, a spokesman for the Electric Reliability Coordinating Council, which represents a number of coal-fired utilities.

The LA Times coverage today is headlined "Critics Swift to Jump on Rule to Reduce Mercury Emissions: The market-based plan will cut output of the pollutant by almost 70% by 2018, the EPA says, in the first such effort by the federal government."

Posted by Marcia Oddi on Tuesday, March 15, 2005
Posted to Environment

Ind. Law - Revised inspector general bill now likely to repass House in Senate bill

According to this story by Lesley Stedman Weidenbener in the Louisville Courier Journal today:

Under the proposal's original language, the inspector general -- a new position created by Daniels -- could ask an appeals court judge for permission to prosecute a state employee or someone doing business with the state for fraud, bribery or other crimes if a local prosecutor had declined to pursue the case.

But under an amendment suggested by Rep. Trent Van Haaften, D-Mount Vernon, and offered yesterday by Bosma, the appeals court judge could choose to let the inspector general prosecute the case or could assign another county prosecutor to do the job.

Bosma said the amended bill still gives the inspector general the "tools to address the issues we're all concerned about."

The changed also eases concerns by Democrats who said that giving an appointee of the governor prosecutorial power would run afoul of the separation of powers ordered by the state constitution. Yesterday, Van Haaften said the bill now lets the appeals court judge make that call.

"If I had my druthers, it would maybe be a little more limited," Van Haaften said of the authority left for the inspector general. "But in the process of good government and good legislation, we don't always get our druthers. I am still very satisfied."

From Niki Kelly's story in the Fort Wayne Journal Gazette:
Republican House Speaker Brian Bosma is sponsoring the inspector general bill, which would allow a court of appeals judge – at the behest of the governor – to appoint the inspector general as a special prosecutor in a criminal case against a state employee. The inspector general must first wait until a local prosecutor has declined to move forward and is limited to prosecuting only four charges.

An amendment, which was adopted unanimously by the chamber, would give the appellate judge the option of naming either the governor-appointed inspector general as prosecutor another prosecuting attorney in the state. Any expenses would be reimbursed by the state.

“The speaker is to be commended for taking this portion and eliminating the certainty of a direct connection between the governor prosecuting people,” said Rep. Win Moses Jr., D-Fort Wayne. “That makes the separation of powers null and void. That’s an immense movement forward.”

It appears the inspector general bill will now pass easily when a final vote is taken.

"Changes help bill for state watchdog: Democrats receive OK for amendments; House will vote today on plan for new post" is the headline to Kevin Corcoran's story in today's Indianapolis Star. Some quotes:
Before Monday, the partisan rhetoric had grown heated, and the legislation's prospects were uncertain.

House Democrats had accused Gov. Mitch Daniels of attempting an unconstitutional power grab by creating his own personal prosecutor. Daniels, in turn, had said the bill's opponents were protecting corruption.

The most significant amendment adopted Monday would allow a Court of Appeals judge to appoint a special prosecutor other than the inspector general, if the judge deemed it necessary to prosecute crimes involving state government.

"It addresses your concern that this not be a vendetta," Bosma told House Democrats.

Last week, Daniels' inspector general legislation was amended into Senate Bill 18 as part of a House GOP effort to revive 40 of the bills that died.

House Republicans also accepted Democratic amendments making the inspector general's records more open to the public and requiring a random assignment of Court of Appeals judges to hear requests for the appointment of a special prosecutor.

Also Monday, the full House accepted another amendment that reduces the public's right to see records in ethics cases.

The original bill had proposed keeping these records confidential until cases were closed, but Bosma "split the baby" and rewrote the bill to open the records immediately before ethics hearings.

That's still a significant loss of public access.

Currently, these records are open when the State Ethics Commission determines probable cause to believe a violation has occurred and after a confidential settlement offer has been turned down. These actions can occur weeks or months before an ethics hearing.

For background, see this ILB entry from March 11th and this one, also from March 11th.

Posted by Marcia Oddi on Tuesday, March 15, 2005
Posted to Indiana Government | Indiana Law

Ind. Gov't. - New DNR chief fires 10 managers

"New DNR chief fires 10 managers: Natural resources shakeup involves several longtime division directors." That is the headline to this Tammy Webber story today in the Indianapolis Star. A quote:

Those fired were: Paul Ehret, deputy director of regulation; Stephen Sellers, communications; Eric Myers, Heritage Trust and Natural Resource Foundation; Mike Nickolaus, oil and gas; Harry Nikides, soil conservation; Randy Braun, soil conservation; John Tryon, human resources; Janet Parsanko, deputy director and general counsel; Barbara Moore, land acquisition; and Burney Fischer, forestry.

Sellers, DNR spokesman for 10 years and editor of the agency's magazine, "Outdoor Indiana," said Hupfer's cuts "went very deep, beyond what the Democrats did 16 years ago."

"This was not a question of weeding the garden, this was a question of chopping down mature trees," Sellers said. "You're talking about some really talented and dedicated people."

Posted by Marcia Oddi on Tuesday, March 15, 2005
Posted to Indiana Government

Ind. Gov't. - Star editorials reflect on recent stories

Two Indianapolis Star editorials today serve as companion pieces to recent Star reports.

The Star's lead editorial today is on "Attorney General Steve Carter's outsourcing contract with a staff member," reflecting on the Star story last Saturday discussed in this ILB entry from that date. Some quotes:

It is well and good that former deputy attorney general John Lewis knows a lot about state litigation and -- at least according to his former boss's calculations -- can save the taxpayers money by defending the state as a private contractor.

Those purported advantages do not justify the process under which the $1.3 million contract was awarded to Lewis, who bid on it and won it while still working for Attorney General Steve Carter.

Lewis may have officially removed himself from the contracting process, as he says, but it would be naïve to assume the work wasn't his for the asking. He managed the tort litigation division that Carter pegged for outsourcing and had worked with the team evaluating proposals for the contract; only one other law firm competed. Three fellow former staffers from the division have joined him in the private enterprise. * * *

The law says state employees must wait a year after leaving government before doing paid work with their erstwhile agency. The State Ethics Commission allows agencies to skirt that restriction by stating in writing that the arrangement isn't "adverse to the public interest." The commission had to demand it from Carter's office in this case; and due to lag time in transitioning from the Kernan to the Daniels administration, Lewis had the contract before the commission had the statement. Kernan's people raised conflict-of-interest questions; the Daniels folks signed off on the deal.

Again, ethical rigor was the resounding theme of the Republican campaign that carried Mitch Daniels and Steve Carter to victory. Rationalizing coziness in the name of know-how and cost-efficiency is part of the business-as-usual tradition the reformers pledged to reverse.

The second Star editorial today is about the General Assembly's health insurance plan for retired members. (See yesterday's ILB entry here, titled "Prerogatives of legislators and their staffs.") Some quotes from today's editorial:
Even as the state was balancing its budget with school funding cuts and one-shot gimmicks in 2002, the General Assembly was taking care of its own desires with a new perk: taxpayer-funded health insurance for former legislators who served a mere six years in office.

Despite a veto by then-Gov. Frank O'Bannon, state Senate President Pro Tempore Bob Garton and then-house Speaker John Gregg quietly invoked a law that would finance the benefit from the general fund.

With the state still mired in a fiscal morass three years later, you would think Garton would strike a blow for fiscal sanity by supporting calls to either scale back the insurance coverage or eliminate it altogether. Not a chance. As The Star's Kevin Corcoran reported Monday, Garton and House Speaker Brian Bosma have blocked any such move. Why? Out of fear that legislators "will retire before the law (is) effective," Garton said.

In one sense, who could blame any lawmaker who left office in order to join 22 former colleagues in taking advantage of such a sweet benefit? Each retired legislator pays at most only $1,900 a year for family dental, health and vision coverage -- far less than what it costs for either retired state or private sector workers. Taxpayers bear the rest of the cost, averaging $10,900 a person.

Bosma acknowledges that the benefit is hard to justify. Some newly elected House Republicans even made the perk an issue during last year's campaign. But the House Speaker says now is not the time to scale back the benefit. Perhaps next year, he says.

Posted by Marcia Oddi on Tuesday, March 15, 2005
Posted to Indiana Government

Ind. Courts - More on Marion County Juvenile Court appointment

"New judge will have less power: Court officials spread out much of the control that juvenile court judge built up in 2 decades" is the headline to this story by Vic Ryckaert today in the Indianapolis Star. Some quotes:

Marion County court officials announced Monday they are diluting the juvenile court judge's authority over several significant court functions.

Officials are consolidating the administrative duties of the juvenile court, a move that will give newly appointed Judge Marilyn Ann Moores far less control than her predecessor, James Payne, over administrative and policy decisions regarding the county's juvenile justice system.

We're trying as much as we can to make that judicial responsibility mirror everybody else's judicial responsibility," said Judge Robyn Moberly, a member of the three-judge executive committee that oversees the county's 32 Superior Courts.

The executive committee is dismantling the controls Payne built in two decades on the bench, but officials are quick to say they are not criticizing his methods.

Instead, they credit Payne for his "superhuman" abilities to assume so much responsibility.

"None of us on the bench could have stepped into that job very easily," Moberly said. "It's just Herculean. I don't know how one man ever did it." * * *

While most judges in Marion County are directly responsible for their staff of about a half-dozen employees, Payne was in charge of more than 200 workers in the court, detention center, probation and other areas.

Under the new rules, Presiding Judge Cale Bradford was named the chair of the county's juvenile division and will shape court policy in consultation with Moores.

The juvenile court's administration will merge with the Superior Court; hirings, firings and other duties will be handled by current court administrator Mark Renner.

The juvenile probation department is coming under the command of the adult probation system and will be led by Chief Probation Officer Robert Bingham.

Another change came earlier this year when the executive committee assumed control of the 144-bed juvenile detention center.

Consolidation measures, Bradford said, are likely to save the county money while they spread the duties among several people.

"One judge shouldn't have to be a jailer, a chief probation officer, an administrator and a judge," Bradford said. "Judge Payne did a remarkable job carrying that load for too many years."

Posted by Marcia Oddi on Tuesday, March 15, 2005
Posted to Indiana Courts

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

The last ILB entry on Rep. David A. Wolkins' eminent domain bill was on Jan. 31st. Yesterday, Katie Wampler of the Noblesville Daily Times had this story, headlined "Eminent domain bill could up payouts: New law would require larger compensation for property owners." Some quotes:

A bill is moving through the Senate that could change drastically the way cities, counties and towns develop. * * * [House Bill 1063] would require any government body acquiring land through eminent domain for commercial purposes to pay the property owner 150 percent of its assessed value, taken from the highest of three appraisals. Currently law requires governments to pay 100 percent of the assessed value. The bill passed the House of Representatives 67 to 29 Feb. 22. Last week the Senate assigned the bill to the Judiciary Committee. * * *

Martinsville Senator Richard Bray, chair of the Judiciary Committee, believes the bill will pass the Senate. "It needs some fine tuning, but I believe there's some sentiment that what Rep. Wolkins (has written) has a lot of merit," Bray said. "What we're dealing with are things that are beyond particularly governmental needs," Bray continued. "We don't want to prevent cities from taking care of blighted areas or health hazards."

Posted by Marcia Oddi on Tuesday, March 15, 2005
Posted to Indiana Law

Monday, March 14, 2005

Ind. Courts - New Judge Moores to serve as the new juvenile court judge

Although it had earlier been reported that Governor Daniel's apointment to fill Judge Payne's vacancy on the Marion Superior Court would not necessarily sit as the juvenile court judge (that being up to the judges), as it turns out the Indianapolis Star is reporting this afternoon:

Marion Superior Court judges announced this morning that former City-County Council member Marilyn Ann Moores will serve as the new juvenile court judge. * * *

Judge Cale Bradford, the county's presiding judge, also announced three new orders that consolidate:

• juvenile and adult probation departments;

• juvenile court administration with superior court administration;

• appoint Bradford as the chair of the juvenile division, which gives him the authority to make administrative and policy decisions over the court.

Bradford also announced that the county is seeking a $1 million grant to build more alternatives to incarceration for juvenile inmates.

Posted by Marcia Oddi on Monday, March 14, 2005
Posted to Indiana Courts

Ind. Decisions - Supreme Court posts one decision today

Valentin Jaramillo v. State of Indiana (3/11/05 IndSCt) [Criminal Law & Procedure]
Sullivan, Justice

At issue in this appeal is whether the Double Jeopardy Clause of the U.S. Constitution bars re-trial of a habitual offender enhancement set aside on appeal for insufficient evidence. Although this Court has often held that it does, we conclude that those holdings are no longer good law in light of Monge v. California, 524 U.S. 721 (1998). * * *

We now hold, in accordance with Monge, that the Double Jeopardy Clause does not prevent the State from re-prosecuting a habitual offender enhancement after conviction therefore has been reversed on appeal for insufficient evidence.

We grant transfer pursuant to Indiana Appellate Rule 58(A), summarily affirm the opinion of the Court of Appeals as to the issue discussed in footnote three, and remand this case to the trial court.

Shepard, C.J., and Dickson and Boehm, JJ., concur. Rucker, J., concurs in result.

Posted by Marcia Oddi on Monday, March 14, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit posts two today

Roberts & Schaefer v. OWCP (US DeptLabor) [13 pp.]

Before FLAUM, Chief Judge, and POSNER and SYKES, Circuit Judges.
FLAUM, Chief Judge. An administrative law judge (“ALJ”) ordered petitioner Roberts & Schaefer Company (“R&S”) to pay benefits to respondent William L. Williams under the Black Lung Benefits Act (“BLBA”), 30 U.S.C. § 901 et seq. Following affirmance by the Benefits Review Board, R&S petitioned this Court for review. For the reasons stated herein, we affirm. * * *

Hasan, Syed M. A. v. US Dept. Labor (ED Wis.) [8 pp.]

Before POSNER, COFFEY, and WOOD, Circuit Judges.
POSNER, Circuit Judge. We have consolidated for decision three appeals, all involving issues of liability for retaliation that concern the applicable legal standard. * * *

Posted by Marcia Oddi on Monday, March 14, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Bill targets Open Door loopholes

Deanna Wrenn of the AP has a story in the South Bend Tribune today on Senator Beverly Gard's SB 310, last mentioned in this Feb. 2nd ILB entry. Some quotes:

A state lawmaker trying to plug holes in Indiana laws favoring open government wants to ban "serial" meetings and forbid votes on public business by telephone and over the Internet.

Legislation that would make such tactics a violation of the Open Door Law passed the state Senate unanimously in February and moved to the House for consideration.

"Most governing bodies try very hard, I think, to comply with open-door laws. But you find some that always try to find a loophole," said Sen. Beverly Gard, a Republican from Greenfield who sponsored the bill. "Governing bodies need to do their business in the eye of the public."

She said some public officials skirt the law by holding serial meetings, in which a mayor or council president, for example, meets with only a few members at a time to discuss public business. That avoids the requirement of a public meeting because there is no quorum -- a majority of members present. * * *

Gard's legislation also would prohibit officials from voting if they are not at the meeting during which the public business is being considered.

Last year, a dispute over "remote voting" began when Democrats linked Rep. Thomas Kromkowski, D-South Bend, to the Statehouse by telephone and video camera over the Internet for a key vote on a proposal for full-day kindergarten. The vote by Kromkowski, who was at home recovering from heart surgery, nudged the legislation to apparent passage. But under protest from Republicans and some Democrats, the vote was thrown out and the proposal failed.

Gard also sponsored a bill that would have allowed judges to impose a fine of up to $1,000 for an intentional violation of the state's Open Door Law or Access to Public Records Act. That bill did not make it out of a Senate committee.

The bill would have put much-needed teeth into Indiana's open-government laws, said Stephen Key, general counsel of the newspaper industry group Hoosier State Press Association. He said that without the threat of a financial penalty, those who control public records can "intentionally violate the law with no real consequences."

Key is hopeful the bill can be revived. "We'll have to build the case and show the need," he said.

That bill is Senate Bill 328. It did not make it out of Senate Committee.

Posted by Marcia Oddi on Monday, March 14, 2005
Posted to Indiana Government

Ind. Gov't. - Prerogatives of legislators and their staffs

Kevin Corcoran of the Indianapolis Star has a lengthy and important story today on some of the special benefits the General Assembly has voted for itself and its staffers. The story is headlined: "Bosma: Now not time to end costly health plan." A quote:

Attacking the perk was a winning issue for Republicans in November. After eight years out of power, they gained a 52-48 House majority based partly on candidates' pledges to rein in a health care benefit most Hoosiers could only dream about.
A sidebar (which I believe also appeared in the Star several years back) explains "how the law came about." It might appear, to phrase it gently, that a lot of thought went into insuring that the whole picture could not be clearly seen via any of its parts. Here is what the Star's sidebar reports:
Lawmakers' retirement health benefit wasn't created by a single piece of legislation. The benefit came together in four separate bills over two years, but only the first bill described the benefit lawmakers were creating.

• Step 1: House Enrolled Act 1667, passed in 2001, defined the House speaker and Senate president pro tempore as "public employers" for purposes of offering subsidized health insurance to ex-lawmakers, ex-lawmakers' spouses, their children and ex-spouses. The Legislative Council, composed of legislative leaders, was made the "employer" for purposes of offering similar coverage to retired legislative staffers and their families. The plan was activated in mid-2002 for ex-lawmakers and in February 2003 for retired legislative staffers.

• Step 2: A paragraph included in House Enrolled Act 1193, also passed in 2001, prohibited the House speaker, Senate president pro tempore and Legislative Council from revoking post-retirement insurance coverage, once offered. Only a vote of the entire General Assembly can revoke it.

• Step 3: A paragraph tucked away in House Enrolled Act 1196, a massive bill passed in 2002, gave the House speaker, Senate president pro tempore and Legislative Council power to tap a special fund to pay for retired lawmakers' and retired legislative aides' health benefits.

• Step 4: Senate Enrolled Act 506 would have created the special fund, without stating its true purpose, but then-Gov. Frank O'Bannon, a former legislator, vetoed it. The next day, a veto override attempt failed 26-25 in the Indiana Senate, with then-Lt. Gov. Joe Kernan casting the deciding vote. The fund has not been created.

I'm unclear after reading this as to what the effect of the failure to create the fund has been.

(I expect to add links to the laws referenced when I have a chance. I understand there are also certain documents involved that activate the plan, but it seems unlikely they are readily accessible.)

This is "Sunshine Week," as a number of editorials yesterday noted. That caused me to recall again last session's fight over "PERF Privacy" -- a result of the General Assembly's closing the door on public access to information on the amounts of legislators' state pensions. There were many editorials about this action last year. What has happened since? One bill was introduced this year "to resolve the problem," House Bill 1195. It never moved out of committee. There have been no editorials. For a complete review, see this Feb. 10th ILB entry.

Posted by Marcia Oddi on Monday, March 14, 2005
Posted to Indiana Government | Legislative Benefits

Law - Star editorializes that "Judicial discretion takes another hit"

An editorial today in the Indianapolis Star is headlined "Judicial discretion takes another hit." Some quotes:

In a strange ruling, the U.S. Supreme Court recently hindered federal judges' ability to use police records and common sense in figuring out who should be jailed as career criminals.

Coming after an earlier ruling that federal sentencing guidelines are unconstitutional, the decision further strips judges of the ability to use their experience and wisdom in sentencing criminals. * * *

[Justice Sandra Day ] O'Connor added that the ruling "makes little sense as a practical matter" and "will substantially frustrate Congress' scheme for punishing repeat violent offenders who violate federal gun laws."

It also is one more regrettable step in removing the wisdom and experience of judges from the sentencing process.

Unfortunately the editorial never reveals the name of the decision -- Shepard v. U.S. (3/7/05), or the vote lineup in the 5-3 opinion:
Souter, J., delivered an opinion, which was for the Court except as to Part III. Stevens, Scalia, and Ginsburg, JJ., joined that opinion in full, and Thomas, J., joined except as to Part III. Thomas, J., filed an opinion concurring in part and concurring in the judgment.

O'Connor, J., filed a dissenting opinion, in which Kennedy and Breyer, JJ., joined.

Rehnquist, C. J., took no part in the decision of the case.

Posted by Marcia Oddi on Monday, March 14, 2005
Posted to General Law Related

Sunday, March 13, 2005

Ind. Gov't. - Thoughts about making public records on the state website more accessible

Simply posting an item on an agency's website may not always do the trick. Here are two recent examples:

  • In the story this weekend about the contract between the Attorney General's office and one of his former employees was this statement: "Carter said his office publicized the contract and sought other bids -- the advertisement was placed online for a month, and the proposals were due Dec. 24." But how many people know to check the Attorney General's website for RFPs? Shouldn't there be one location on the State of Indiana's website to check for all these requests?
  • When Smylie v. State was issued last Tuesday, the word on the street was that it was out, but no one could find it online. The reason? Rather than posting it in the regular place that people check every day for new opinions, it was posted on the front page of the state judiciary's site. Here the problem seems to have been that of unfamiliarity with how the public actually interacts with the court site.

Posted by Marcia Oddi on Sunday, March 13, 2005
Posted to Indiana Government

Environment - Indiana environmental chief concerned about economy

"Environmental chief concerned about economy" was the headline to a story in the Goshen News on Saturday. Unfortunately, the News does not appear to archive its stories. Here are some quotes:

The 900-member staff of the Indiana Department of Environmental Management has been instructed to “consider economic development” by their new department head.

Tom Easterly, who was named IDEM commissioner by Gov. Mitch Daniels in January, said he eliminated most of the upper management when he took office and delegated authority to bureau chiefs. “Our goal is to help you,” Easterly said Friday, speaking at the Goshen Rotary Club meeting. He said IDEM should “make sure people know what they have to do,” not just that they may be in violation of a rule.

He said business owners would rather know very quickly whether their request is approved or not, rather than wait years to be told “no.”

“We’re not going to ignore the rules, but we’re going to work on improving the personal incomes of Indiana residents,” Easterly said. The long delays that have been associated with IDEM in recent years “stop things in their tracks.

Enforcement can drag on for years,” and the rule-breakers are long gone from a business by the time enforcement is pursued, he said. The business and employees may be punished when they had nothing to do with the old violation. What is needed are clear regulations, with no mystery about their meaning, he said. * * *

He pledged to work with cities and towns that are struggling to replace combined sewer overflows and separate storm water from waste water that goes to sewage treatment plants. “They can’t do it in five years. It may take 15 to 20 years,” he said.

On the subject of brownfields, Easterly said he considers them “redevelopment sites,” but the present liability laws limit the sale of these possibly polluted, but developable manufacturing sites. “We’re going to have a mess for a while,” he said, but he wants his agency to act quickly for applicants and business.

“Our emphasis is on compliance,” he stressed, and people may not see large numbers in the enforcement (fine) area. “We will be a success if we have zero penalties.”

Here is the Goshen News home page.

Posted by Marcia Oddi on Sunday, March 13, 2005
Posted to Environment

Ind. Law - More on other states' problems with constitutional spending limits

Thursday I posted an entry on the case before the Kentucky Supreme Court about whether the Governor of Kentucky can draw money from the treasury without a legislative appropriation.

Here is an opinion piece from today's Louisville Courier Journal titled, ominously, "Coping with breakdown." Some quotes:

Kentucky's constitution says the state shall spend "no money" without legislative approval, so it's tempting to mock the claim of Gov. Ernie Fletcher's lawyer, Sheryl Snyder, that those words don't really mean what they say.

On the other hand, the same constitution also mandates spending for things that account for a huge percentage of any state budget: schools, prisons and courts, for example. Other outlays, such as for police and health programs, clearly are essential.

So the conflict over what to do when a General Assembly fails to pass a budget, as has happened twice in recent years, is deeply important. That's also why it's important for the state Supreme Court to offer guidance.

Meanwhile, related problems appear to be facing the State of Illinois. A story yesterday in the Chicago Tribune was headlined "Judge blocks governor's money plan: Day-to-day state bills can't be paid from special funds, he says." Some quotes:
A Downstate judge Friday issued a preliminary injunction blocking Gov. Rod Blagojevich from paying day-to-day state bills with money siphoned from special state accounts earmarked for the regulation of financial institutions.

The state has hundreds of such funds, filled by special assessments and fees, that were set up to bankroll conservation programs, scholarships, financial regulation and a variety of other narrow missions.

But Blagojevich, with legislative backing, has drawn more than $400 million out of the special accounts over the last 18 months to pay day-to-day bills of government, ease the state's cash crunch and avoid a general tax increase. In his budget for the coming fiscal year, Blagojevich proposes to tie all increases in spending for schools to the so-called fund sweeps.

The ruling by Sangamon County Circuit Judge Leo Zappa affected only three of the special funds, from which Blagojevich has taken $5 million. But it raised new questions about whether any of Blagojevich's fund diversions could pass legal muster.

Zappa acted in a case brought by banking industry groups that contend the diversions violate the state Constitution.

It came just days after state Treasurer Judy Baar Topinka announced she would no longer approve Blagojevich administration orders to transfer money from the special funds to the state's general checkbook because of concerns the maneuver may be illegal.

Some of you may claim similarities to the addressing of Indiana's budget crisis over the past few years.

Posted by Marcia Oddi on Sunday, March 13, 2005
Posted to Indiana Law

Ind. Law - A local view of Smylie v. State

Giving some local color to last week's Supreme Court decision in Smylie v. State, Michael W. Hoskins of the Johnson County Daily Journal writes:

Judges have lost some power after Indiana’s top court threw out part of the state’s sentencing structure and made it more difficult to extend criminal jail terms.

And it is thanks to a Johnson County case.

Local judges will now have to get a jury’s approval before extending prison time.

The Indiana Supreme Court ruled Wednesday that parts of the state’s sentencing laws are unconstitutional and cannot be the deciding factor in determining if a convicted criminal deserves a longer sentence.

In the county case, the appeal of a man convicted of child seduction made it to the state’s top court and could open a floodgate of new appeals for lesser sentences and cause local courts to spend more money on recruiting jurors.

“This should be interesting,” Johnson Circuit Judge Mark Loyd said Thursday. “We’ll have to see how it affects our cases and juries, but I’m not sure what kind of effect this will have.” * * *

“This will be a great time and expense for the public,” Johnson County Prosecutor Lance Hamner said. “It requires juries to hear more evidence and deliberate again. That can get expensive and doesn’t even allow us to consider everything.”

Hamner said if someone shows a lack of remorse, he would have difficulty proving that to a jury and might not even know about it until after the trial.

The state Supreme Court reviewed the case of Adolphe Edward Smylie, 45, who pleaded guilty to two child seduction charges in Johnson Superior Court 1.

State law dictates Smylie could have received a 1½-year sentence on each count, with the same added or taken away based on certain factors.

Judge Kevin Barton sentenced him to two consecutive two-year prison terms. A jury did not hear any of the factors used to increase the sentence.

A jury should have heard the facts in that case, the state justices ruled.

“We hold today that portions of Indiana’s sentencing scheme violate the Sixth Amendment’s right to trial by jury,” Chief Justice Randall Shephard wrote in a majority 4-1 opinion.

Posted by Marcia Oddi on Sunday, March 13, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More stories about court safety

"Outside court, judges take security into own hands" is the headline to a story today in the Fort Wayne Journal Gazette by Sara Eaton, featuring Allen County Superior Court judges.

The Chicago Tribune has a story titled "Lefkow case puts security in spotlight."

Posted by Marcia Oddi on Sunday, March 13, 2005
Posted to Indiana Courts

Ind. Gov't. - Public access the topic of editorials today

This is "Sunshine Week" and to mark it there are a number of editorials and features in the papers today on pubic access. The Fort Wayne Journal Gazette has an editorial titled "Your Essential Right to Know." The Indianapolis Star has two opinion pices, one headed "The tension between preserving privacy and the right to know" and the other, "Let the sun shine on a right to access public information."

In an AP story, Keith Robinson writes about Indiana's public access office and the public access counselor, Karen T. Davis.

Posted by Marcia Oddi on Sunday, March 13, 2005
Posted to Indiana Government

About this Blog - Can you see the right column?

There are a number of different browser/computer combinations viewing this blog. If you do not see the right-gray column (or see it way down at the bottom of the page), please try making your browser window wider.

OR, switch to Firefox. Highly recommended by me -- I've been using the free version for several months now.

One feature I now can't work without -- tabbed browsing. I used to have browser windows open all over my screens (I use two monitors simultaneously). With tabbed browsing, you have the option of opening new windows as "file tabs" stacked behind your current window. By clicking on another tab, you switch to that window, etc.

Posted by Marcia Oddi on Sunday, March 13, 2005
Posted to About the Indiana Law Blog

Saturday, March 12, 2005

Ind. Gov't. - State lawyer won contract from his boss

"State lawyer won contract from his boss: Ex-deputy attorney general was awarded outside legal work while on Indiana payroll" is the headline to a story today on the front page of the Indianapolis Star. Some quotes:

Attorney General Steve Carter has awarded a $1.3 million, two-year contract to one of his deputies, who bid on and won the job while he was still working for Carter.

Now, lawyer John Lewis, who was chief of the tort litigation division, will continue to defend the state in lawsuits but will do so from his new private firm, Lewis and Wilkins.

According to Lewis' bid for the contract, his firm also would be made up of at least three other former staffers with the attorney general's tort litigation office.

The move has raised questions about Carter's decision to outsource tort litigation to one of his former deputies, and whether he took appropriate steps to screen Lewis from the bidding process. * * *

Lewis, who earned $88,526 in salary and benefits while working for the state, had a leg up on the competition for this work.

He managed the division that was being outsourced -- and provided factual reports about tort litigation to the team drafting the request for proposals. He had worked with those on the team that evaluated the bids. And the request for bids was narrowly written; only one other firm competed for the work. * * *

State officials under then-Gov. Joe Kernan, who needed to sign off on the contract when it was first proposed, raised questions in December about giving a contract to someone who was in charge of the tort division at the time when the contract for those same services was bid on and awarded.

The Department of Administration and the State Ethics Commission wanted assurances before they approved the contract that no ethics laws or rules were being broken, according to e-mails and documents filed with the Ethics Commission. Officials in Democrat Kernan's administration never signed off on the contract because they didn't receive those assurances before they left office in early January.

Not until Gov. Mitch Daniels, a Republican, took office did Carter's office get all of the necessary signatures from the Department of Administration and State Office of Management and Budget. Carter is a Republican. * * *

State law generally bans former state employees from doing the same work for the agency for one year after leaving government. But agencies can waive that restriction by filing a written explanation with the Ethics Commission stating why the work isn't "adverse to the public interest."

Although the law doesn't set a waiver deadline, the attorney general's office didn't file the paperwork until after the contract had been awarded and at the insistence of the Ethics Commission. * * *

Carter defended the contract, declaring he has striven for more transparency, not less, in his business dealings. The attorney general's office, for example, was one of the first state entities to put active contracts online for public scrutiny. [see below]

Carter said his office took steps to make sure Lewis was out of the loop on the contract. The office told staffers not to talk about the contract with Lewis -- although no written memos were issued as recommended by the attorney general's ethics officer.

Carter said his office publicized the contract and sought other bids -- the advertisement was placed online for a month, and the proposals were due Dec. 24.

Here are the links the Attorney General's office provides to "current in-house contracts," as discussed in the Star story. The Lewis & Wilkins, PC contract is here.

Posted by Marcia Oddi on Saturday, March 12, 2005
Posted to Indiana Government

Ind. Courts - More about Indiana judges

"Commission recommends suspending Danikolas" is the headline to this story today in the Munster (NW Indiana) Times. Some quotes:

GARY | An investigative body for the Indiana Supreme Court is calling for the temporary removal of one of Lake County's longest serving judges.

Superior Court Judge James Danikolas would have to serve a 60-day suspension if the state's highest court adopts the findings of a 36-page report from the Indiana Commission on Judicial Qualifications.

Danikolas is denying the allegations he fired a court employee in 2003 in retaliation for blowing the whistle on his earlier misconduct. * * *

Danikolas, 68, of St. John, was appointed to the bench in 1977 and has been deciding civil and family law disputes from his courtroom in downtown Gary.

In October, a Judicial Qualification Survey of Lake County lawyers recommended voters kick Danikolas off the bench. He was re-elected.

The high court will decide Danikolas' fate later this year.

The case comes in the wake of the Supreme Court removing Lake Criminal Court Judge Joan Kouros from the bench last October over evidence of her inefficiency in processing typical court paperwork was delaying justice in her court.

Meanwhile, a press release dated March 11th from Governor Daniels announces his appointment of judges for Wayne and Clay counties. It begins:
Governor Mitch Daniels today appointed two prosecutors as circuit court judges in Wayne and Clay counties. David Kolger of Richmond will serve in Wayne County and Robert Pell of Brazil will be the new judge in Clay County.

"David and Bob both have reputations as tough but fair prosecutors. Both have vast courtroom experience and are community leaders," said Governor Daniels. "David has faithfully served the citizens of Wayne County for many years as prosecutor, and is held in high regard by members of both the bar and bench. Bob has built a reputation as a diligent, level-headed prosecutor and a respected veteran of the Clay County courts on top of an impressive career as a private practitioner."

Posted by Marcia Oddi on Saturday, March 12, 2005
Posted to Indiana Courts

Ind. Courts - Concerns about court safety

A story today in the Munster (NW Indiana) Times is headlined "Judge Pera: 'I'm afraid it could happen here'". The lead:

CROWN POINT | A courtroom shooting Friday in Atlanta that left a judge and two others dead was a shock, but not a surprise to Chief Lake Superior Court Judge John J. Pera here.

He has been lobbying for two years to ban all guns from Lake County's courts, but police officers refused to surrender their sidearms at the courthouse door. Now he is renewing that call.

"I'm very upset at what happened in Atlanta and I'm afraid some day it could happen in my own courtroom," Pera said.

The Indianapolis Star reports "Local judges express concern:"
Marion County Superior Court's presiding judge said Friday that disarming deputies who lead prisoners to court would help stop courtroom shootings.

"One thing we may want to do is look at having the deputies who handle prisoners not have firearms," said Judge Cale Bradford. "The jail guards don't have firearms and that works out fine. They can still use clubs or pepper spray."

Bradford said violent acts against judges in Chicago and Atlanta have led him to reassess the safety of judges.

"I always thought this type of thing couldn't happen to judges," Bradford said. "It makes me cautious, absolutely."

Marion County court officials long have complained about security in the City-County Building and said an Atlanta-type shooting could happen here.

"It could happen in our courts, too" is the headline to this story from the Cincinnati Enquirer. Some quotes:
Judges and court employees across Greater Cincinnati and Northern Kentucky were asking the same question Friday after a fatal shooting in an Atlanta courthouse: Could it happen here?

For most, the answer was, "Yes."

Despite extensive and costly security improvements in the past few years, law enforcement officials say courtrooms always will be vulnerable to a determined or desperate assailant.

"It could happen anywhere," said Hamilton County Sheriff Simon Leis, who is in charge of security at the Hamilton County courthouse and several other county buildings.

Leis said security at the courthouse is tight, with metal detectors and dozens of armed deputies. But if someone is determined enough, Leis said, they can find a way to beat nearly any security system.

Posted by Marcia Oddi on Saturday, March 12, 2005
Posted to Indiana Courts

Law - Limits on malpractice awards explored

This article by Adam Liptak in last Sunday's NY Times is headlined
"Go Ahead. Test a Lawyer's Ingenuity. Try to Limit Damages." It begins:

PRESIDENT BUSH says that large malpractice awards are helping to drive health care costs up, and he wants to cap some damages patients may recover in court from doctors and hospitals. But lawyers are resourceful types, and a new study suggests that limiting one sort of damage award merely causes other kinds of damages to increase.

In states that already cap some damages - the ones labeled "pain and suffering" - the study finds that total awards have remained pretty much the same. This suggests that plaintiffs' lawyers have simply recast their cases to encourage juries to award the same amounts under different names - for, say, "lost wages."

Legal experts have questioned aspects of the study's methodology and findings. But they tend to agree, whether in admiration or horror, that lawyers can show almost limitless ingenuity in adapting to new legal rules.

After all, trial lawyers are paid not for their accounting skills but for their ability to make jurors sympathize with the plaintiff. And juries, in turn, often ignore jargon-laden damages instructions and simply award the amount they think will put an injured patient's life back on track.

The bottom line, said Charles M. Silver, a law professor at the University of Texas, is this: "Plaintiffs' attorneys are paid to be creative to get the maximum damages for their clients." * * *

Injured patients can sue for three distinct forms of damages, and the president's plan would cap only one of them. It would not limit economic damages like lost wages and medical expenses - items that, in theory, can be precisely measured in dollars and supported by detailed evidence but in fact can be the subject of dueling testimony by expert witnesses.

The plan would put a $250,000 limit on non-economic damages, for pain and suffering, disfigurement, anguish, distress and the loss of enjoyment of life, which by definition cannot be directly measured in dollars.

Punitive damages, a third category, are awarded in few medical malpractice cases.

The debate over the president's proposal has mostly involved how caps will affect insurance premiums, rates of medical errors and the willingness of doctors to practice specific kinds of medicine, like obstetrics.

But neither the doctors and insurance companies that support the president's plan, nor the plaintiffs' lawyers and consumer groups that oppose it, have raised many questions about whether caps effectively limit the total sums awarded.

The new study, by Catherine M. Sharkey, a law professor at Columbia, may change that. The study, to be published in the New York University Law Review in May, analyzed jury verdicts in 22 states in 1992, 1996 and 2001. It did not consider cases settled out of court. It found that the median compensatory award in states with caps on damages was $324,000, compared with $387,000 elsewhere - figures that Professor Sharkey found were roughly equivalent after the data was adjusted for variables like the kind and number of plaintiffs and defendants, the percentages of local doctors and lawyers, and jurors' wealth and ages.

Professor Sharkey concluded that "non-economic damages caps have no statistically significant effect on the size of overall compensatory jury verdicts or final judgments." (Factors that do bear on those things, she wrote, are the severity of injury, whether the judge in the case was elected in a partisan race and whether the state requires medical experts to screen suits.)

Professor Sharkey's conclusion, if correct, suggests that lawyers and expert witnesses have simply diverted their energies to arguing for higher economic damages. "Such strategies of attorneys and experts find a receptive audience in jurors, who may treat damages holistically," she wrote. "That is, jurors may have a basic sense of the total amount of damages that a plaintiff should receive."

Professor Sharkey's paper may be reviewed on the SSRN Electronic Paper Connection. Access it here. It includes discussion of Indiana's medical malpractice damages limitations (IC 34-18-14-3), along with Indiana's punitive damages cap (IC 34-51-3-4).

Posted by Marcia Oddi on Saturday, March 12, 2005
Posted to General Law Related

Friday, March 11, 2005

Law - Law & Order: Trial by Jury - Slammed by Dahlia Lithwick

The headline, "Trial by Tribulation: The rotten new Law & Order spinoff," may give you a clue to what Slate's legal writer, Dahlia Lithwick, thinks of the newest Law & Order offshoot, which happens to air tonight. A few quotes from the review:

Former U.S. Sen. Fred Dalton Thompson manages to separate his real-life job from his make-believe one as New York District Attorney Arthur Branch in the original Law & Order. But no episode of Trial by Jury seems complete without a reminder from him to his minions that they'd better score a huge conviction—warranted or not—because he's up for re-election. Craven opportunists on both sides work the media relentlessly: "Call Dominick Dunne!" someone hollers during the premiere, seducing Dunne into profiling the case for Vanity Fair. Never mind Dunne. Someone call Franz Kafka. These "trials" are so mired in spin, greed, and personal ambition that the courtroom scenes become almost immaterial. It all feels so '80s—depressingly Knots Landing-meets-Bonfire of the Vanities.

It's probably a coincidence that the first legal show featuring almost universally unlikable attorneys is also the first legal show that features almost universally female attorneys. Trial by Jury scuttles the Law & Order casting formula (grizzled veteran cop/foxy male cop plus grizzled veteran prosecutor/foxy supermodel assistant prosecutor) to bring you a gaggle of cynical female defense attorneys, judges, prosecutors, and assistants. The show stars Cheers veteran Bebe Neuwirth as Assistant District Attorney Tracey Kibre ("Let's get someone bitter and emasculating. Like Lillith." "I know! Let's just get Lillith!"). Amy Carlson plays bored ADA Kelly Gaffney, and in last week's premiere, Annabella Sciorra was a defense attorney who nodded serenely as her client described strangling his pregnant girlfriend and chucking her down a well.

Posted by Marcia Oddi on Friday, March 11, 2005
Posted to General Law Related

Law - Who owns the views?

"Who Owns the Views?" is the title to a lengthy feature story today in the real estate section of the NY Times. Some quotes:

WHEN Meryl and Sidney Schwartz, 71-year-old retirees, decided to develop the five-acre parcel of land next to their vacation home in Richmond, Mass., they never expected to become locked in a bitter two-year battle with the town's Conservation Commission. * * *

The cause of all the controversy is a little-known environmental regulation called the Berkshire Scenic Mountain Act, a bill passed by the Massachusetts State Legislature and adopted by the town of Richmond in 1974 to protect its watershed resources and preserve the scenic qualities of the mountainous area. Towns are not required to comply with the act, and only 4 of the 31 towns in the Berkshires have adopted it.

In Richmond, landowners who hope to build in a protected mountainous zone must meet a number of guidelines: Their projects must not be visible above the ridge line, tree-cutting must be limited to one-quarter of an acre and it cannot cause erosion or flooding that would damage water quality. * * *

After nearly a year of fruitless negotiation with the town, Mr. Hoelter appealed to the state, the first time a challenge has been filed since the Scenic Mountain Act took effect. The case went to the Massachusetts Department of Conservation and Recreation, which last fall ordered another round of talks between the sides. The commission's most recent conditions, sent to Mr. Hoelter in January after a tense public hearing in December, place 15 restrictions on the project, including the length of time that soil can be exposed at the construction site, the height and placement of outdoor lighting, and even the color paint that must be used on the finished house in perpetuity (earthy tones of brown, gray or green are specified). It also lays out 60 general conditions for mountainside developments. Ms. Stover said that the guidelines would prevent erosion and make the finished house less visible.

And even though Mr. Hoelter and the Schwartzes are expected to accept the restrictions at the coming meeting, Mr. Hoelter worried that some of the provisions exceeded the purview of the Scenic Mountain Act. "It becomes a land-taking issue," he said, noting that the Schwartzes have paid taxes on their property as a buildable lot for the last 30 years.

The case has highlighted several unforeseen consequences of this kind of environmental law. In Monterey, Mass., where the legislation was adopted two years ago, clear-cutting accelerated in the months before the law took effect, as developers raced to prepare lots while they still could. And as buildable land becomes scarcer in areas protected by this kind of law, the cost of housing rises substantially, forcing many local families out of the housing market entirely.

Indeed, across the country, opposition to environmental regulations like the Scenic Mountain Act is growing. The Colorado Northern Front Range Mountain Backdrop Protection Study Act, a bill introduced by Rep. Mark Udall, Democrat of Colorado, that would have prohibited development in the Front Range of the Rocky Mountains, failed to pass in the 108th Congress. In November in Oregon, a state that has some of the strictest environmental protection in the nation, voters passed Ballot Measure 37, which provides compensation or exemptions to property owners whose investments have been hurt by restrictive zoning.

Even though Richmond is already one of the most expensive towns in the Berkshires, Mr. Hoelter says that the opposition to his project may backfire on Osceola Road. With all the costs associated with getting the project approved, the house that will eventually be built there is more likely to look like "cheeseburger than filet mignon," he said.

Posted by Marcia Oddi on Friday, March 11, 2005
Posted to General Law Related

Ind. Decisions - Transfer list for week ending March 11, 2005

Here is the Indiana Supreme Court's transfer list for the week ending March 11, 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, March 11, 2005
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals posts one today

Glenn Beasey v. State of Indiana (3/11/05 IndCtApp) [Criminal Law & Procedure]
Friedlander, Judge

* * * When Altier initiated a traffic stop based on Beasey’s unsafe start he smelled a strong odor of alcohol on Beasey’s breath, observed that Beasey’s eyes were glassy, semi-hooded, and red, and that Beasey was slurring his words. After Beasey exited his car to perform field sobriety tests, he leaned on the hood of Altier’s police car. Altier testified that this mannerism contributed to his opinion that Beasey was intoxicated because, “[i]t’s not normal for somebody on a traffic stop to feel comfortable enough to just lean on a police car.” Additionally, Beasey failed the three field sobriety tests Altier administered and twice refused to take a chemical test for intoxication. The probative evidence and reasonable inferences drawn therefrom clearly support Beasey’s conviction. Judgment affirmed.
SHARPNACK, J., and BAKER, J., concur..

Posted by Marcia Oddi on Friday, March 11, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts four today

Szucz-Toldy, Andrej v. Gonzales, Alberto R. (Immigration) [8 pp.]

Skylink Tech Inc v. Assurance Co (ND Ill.) [6 pp.]

Ruiz, Alfredo v. Continental Casualty (ND Ind., Rudy Lozano, Judge) [12 pp.]

Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Alfredo Ruiz worked as a production supervisor for Application Engineering Corp. (“AEC”), a subsidiary of Sterling, Inc. (“Sterling”), where he participated in Sterling’s long-term disability plan. When he was denied long-term disability benefits he sued the insurance company, Continental Casualty Co. (“Continental”) and Sterling’s disability plan. The district court granted summary judgment for the defendants, holding that Continental’s decision to not extend long-term disability benefits to Ruiz was neither arbitrary nor capricious. We affirm.

Crowley, Daniel v. McKinney, Donald (ND Ill.) [23 pp.]

Posted by Marcia Oddi on Friday, March 11, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on the separation of powers and the inspector general bill

I recently ran across an article titled "The Separation of Powers: The Roles of Independent Counsels, Inspectors General, Executive Privilege and Executive Orders," from the Miller Center of Public Affairs, which reminded me that this issue has been litigated at the federal level.

The University of Missouri-Kansas City School of Law has a page titled "Exploring Constitutional Conflicts." A quote:

Morrison v. Olson 487 US 654 (1988) considered the constitutionality of the "Independent Counsel" (or "special prosecutor") provisions in the Ethics in Government Act. The Court had considerable difficulty in identifying in which of the three branches of government the independent counsel belonged. Justice Rehnquist's opinion for the Court in Morrison took a pragmatic view of government, upholding the independent counsel provisions. Rehnquist noted that the creation of the independent counsel position did not represent an attempt by any branch to increase its own powers at the expense of another branch, and that the executive branch maintained "meaningful" controls over the counsel's exercise of his or her authority.

In an angry dissent, Justice Scalia called the Court's opinion "a revolution in constitutional law" and said "without separation of powers, the Bill of Rights is worthless."

Justice Scalia dissented again in Mistretta v. U.S. 488 US 361 (1989), a decision upholding legislation which delegated to the seven-member United States Sentencing Commission (a commission which included three federal judges) the power to promulgate sentencing guidelines.

To which I will add that the Supreme Court might have had even more difficulty deciding such a case under the Indiana Constitution.

First, because our separation of powers appears even stronger than that in the federal Constitution. In the Indiana Constitution, like the U.S. Constitution, there are separate Executive, Legislative, and Judicial Articles. But in the Indiana Constitution, in addition, there is also the explicit statement of ARTICLE 3, Distribution of Powers.

Section 1. The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.
Second, because, unlike the U.S. Constitution, the Indiana Constitution, in Article 7, Judiciary, at Section 16, includes the elected prosecuting attorneys for each judicial circuit.

Posted by Marcia Oddi on Friday, March 11, 2005
Posted to Indiana Government

Ind. Courts - Governor Daniels fills vacant Marion County Superior Court position

The Indianapolis Star website is reporting:

Marilyn Ann Moores has been appointed Marion Superior Court judge, Gov. Mitch Daniels announced today. Moores succeeds Jim Payne, who left the bench in January to become the director of the new state Department of Child Services.

Moores, a former Indianapolis City-County Council member, has nearly 25 years of public and private legal experience, according to a statement from the governor's office. As a partner at Cohen & Malad, LLP, in Indianapolis, her practice includes civil litigation -- including personal injury, family law, juvenile law, administrative and government law -- and commercial litigation. She also is a lieutenant colonel and staff judge advocate in the Indiana National Guard.

Posted by Marcia Oddi on Friday, March 11, 2005
Posted to Indiana Courts

Enviroment - EPA Enacts Long-Awaited Rule To Improve Air Quality, Health

"EPA Enacts Long-Awaited Rule To Improve Air Quality, Health" is the headline to this story today in the Washington Post. Some quotes:

The Environmental Protection Agency enacted a broad new rule yesterday aimed at significantly reducing levels of health-damaging ozone and atmospheric soot caused by emissions from power plants in eastern and midwestern states.

The long-awaited Clean Air Interstate Rule (CAIR) -- viewed as the most substantial tightening of air quality standards since the Clean Air Act was last amended in 1990 -- is expected to save thousands of lives each year and prevent the loss of millions of workdays missed annually because of pollution-related heart attacks, asthma and other health problems.

The rule, to be phased in over the next decade, sets limits for the release of sulfur dioxide and nitrogen oxides from power-plant smokestacks in 28 states and the District. To meet the goals, many plants will have to install new scrubbers and other emissions-capturing equipment.

Plants that cannot meet their deadlines will be allowed to buy credits from those that are ahead of schedule -- an approach that the industry and environmentalists alike had sought as a way to achieve cost-effective regional reductions.

"The action we are taking will require all 28 states to be good neighbors, helping states downwind by controlling airborne emissions at their source," said EPA Acting Administrator Stephen L. Johnson, whom President Bush has nominated to head the agency.

Here is the U.S. EPA press release, with links to the rule and other information.

Here are some local stories: "Clean-air rule means higher electric rates" from the Louisville Courier Journal; "Pollution rules to cost Illinois firms: Critics say limits aren't strict enough" from the Chicago Tribune; and "EPA rule tightens standards on smog: Indiana's coal-fired power plants must reduce emissions," from the Indianapolis Star.

Posted by Marcia Oddi on Friday, March 11, 2005
Posted to Environment

Ind. Law - Inspector general bill, once "dead," may live again

Niki Kelly of the Fort Wayne Journal Gazette reports today in a story headlined "Inspector general bill gains," that:

Those for and against a bill regarding a state inspector general seem amenable to a small change in the legislation that could make a big difference in support come voting time.” * * *

The inspector general bill was one that caused House Democrats to boycott the floor recently, killing 131 pieces of legislation. Originally in House Bill 1002, the language would codify the creation of the Office of Inspector General and give that person the power to prosecute a limited number of criminal cases against state employees with the approval of the governor and a court of appeals judge.

The bill died but the concept was resurrected Thursday when lawmakers inserted the language into Senate Bill 18 – a bill regarding misdeeds by public officials.

Republican House Speaker Brian Bosma and a representative from the governor’s office presented the bill by saying Indiana already has a statute on the books that would allow any citizen – including the inspector general – to seek to be appointed as a special prosecutor in a specific case.

Evansville Democrat Rep. Trent VanHaaften – a former prosecutor – corrected the speakers, saying anyone could file a petition asking that a special prosecutor be appointed but they could not be appointed themselves to try a case.

Indiana law clearly states that only a prosecuting attorney, deputy prosecutor or senior prosecuting attorney can be appointed as a special prosecutor, meaning the inspector general would not qualify.

After more than 30 minutes of discussion on the bill during committee, VanHaaften seemed to hit on a compromise that could help push the bill through. He suggested giving the court of appeals judge discretion to appoint either the inspector general or an elected prosecutor from another county as special prosecutor on the case.

“This one small part to some of us is a really big thing,” VanHaaften said of the possible change, which would ensure the option of keeping the prosecution within the judicial branch – and out of the governor’s control. * * *

Senate Bill 18 – as amended to include the inspector general language but not the additional change discussed – was approved by the Government and Regulatory Reform Committee by a party-line vote of 7-5.

Additional alterations could be made when the bill goes to the full House for consideration in the coming days.

Jennifer Whitson of the Evansville Courier& Press reports, in a story headlined "Sides thaw on inspector general plan," that:
The House Government and Regulatory Reform Committee heard Senate Bill 18, a measure that would force any public official from office if he is convicted of a felony.

The committee amended into that bill a proposal to give the inspector general position prosecutorial powers. The inspector general, who is appointed by the governor, could open an investigation and turn over the results to a county prosecutor.

If, after six months, the prosecutor does not file charges, the inspector general can petition the Indiana Court of Appeals to be appointed to prosecute the case.

Democrats on the committee again asked several questions about whether having a gubernatorial appointee prosecuting crimes would run afoul of the constitutional separation of powers and whether it would vest too much power within the governor's office.

"What about if someone makes a complaint about the governor?" asked Rep. Vern Tincher, D-Riley. "The executive branch controls it all. The governor controls it all."

Rep. Trent Van Haaften, D-Mount Vernon, proposed a compromise that would allow an Indiana Court of Appeals judge to appoint either the inspector general or another county prosecutor to take on the case if the prosecutor in the county of origin declines.

"The concern continues to flow from the fact that there's never ultimately a disconnect between the person the governor appoints and who could ultimately prosecute," Van Haaften said.

"It is a sensible solution to (Democratic) concerns," Bosma said. "As long as the inspector general is still an option (as a prosecutor), I feel pretty good about that."

A sidebar to the Courier& Press story, headed "Compromise proposed on inspector General issue," explains:
Current Indiana law. Anyone can petition a court to have a special prosecutor try a case. The person would have to prove the original county prosecutor is biased, or the county prosecutor himself can ask for the change. If the trial court judge grants a special prosecutor, another county prosecutor is appointed to take over the case.

The bill. The inspector general, who is appointed by the governor, investigates allegations of corruption in state government. He would turn the findings over to the local county prosecutor. If the prosecutor fails to act for six months, the inspector general can petition a randomly selected Indiana Court of Appeals judge to become the prosecutor for the case.

The compromise.
The same scenario would apply as under the bill, except that the Court of Appeals judge could appoint either the inspector general or any other elected county prosecutor to take over the case.

For background on the inspector general bill, including a discussion of the constitutional issues involved and an examination of the constitutional provisions, see this Feb. 28th ILB entry.

Here is a copy of the revised Engrossed Senate Bill 18, amended in House Committee to incorporate not just the inspector general provisions of HB 1002, but also the provisions of HB 1002 relating to executive branch lobbying. Here is the main information page for ESB 18. Here is yesterday's vote of the full House on accepting the Committee Report which inserted HB 1002 (as modified) into SB 18 -- the report was accepted by a vote of 46 to 44.

Posted by Marcia Oddi on Friday, March 11, 2005
Posted to Indiana Government | Indiana Law

Ind. Law - What is the law regarding our Lake Michigan shoreline?

North Judson attorney Marty Lucas, of bigeastern.com, has posted some links to very useful information about Indiana's Lake Michigan shoreline. An appeal pending before the Supreme Court of Michigan (see more information, including a link to the lower court ruling in the Michigan case, at this ILB entry) concerns the rights of shoreline public access in Michigan. Of course, the next question is, what is the law in Indiana?

Lucas points to this page, posted by the Indiana Natural Resources Commission, part of a document titled "A Synthesis of Major Topics in the Lake Michigan Coastal Area." Also relevant is this section, on "Property Rights."

Posted by Marcia Oddi on Friday, March 11, 2005
Posted to Indiana Law

Ind. Courts - Wayne County Prosecutor David Kolger named Wayne County Circuit Court Judge

The Richmond Palladium-Item reported yesterday, in a story headlined "Prosecutor takes on a different title: judge," that Wayne County Prosecutor David Kolger:

was chosen by Indiana Gov. Mitch Daniels to fill the vacancy left by the retirement of Judge Douglas VanMiddlesworth. Kolger was notified of the appointment Wednesday. He will assume his new duties March 21.

Kolger has been prosecutor since 1999. He had been a deputy prosecutor since 1984 and served as chief deputy before defeating the incumbent prosecutor, Terry O'Maley, in the 1998 primary election. He was re-elected in 2002. * * *

Chief Deputy Mike Shipman will take over management of the prosecutor's office until Kolger's vacancy can be filled. A caucus of the Wayne County Republican Party will select a new prosecutor. Kolger was elected as a Republican.

[Thanks to E. Thomas Kemp's Kemplog for the pointer.]

Posted by Marcia Oddi on Friday, March 11, 2005
Posted to Indiana Courts

Thursday, March 10, 2005

Ind. Law - [Updated] Justices hear case on state spending rule

Some of you constitutional law junkies may recall that I ended a Feb. 25th ILB entry on "Where does the Indiana Constitution say that?" with a discussion of this provision from Art. 10, Sec. 3 of the Indiana Constitution:

"No money shall be drawn from the Treasury, but in pursuance of appropriations made by law."
by writing:
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.
Earlier, I had quoted from others who said that although nowhere in the Indiana Constitution does it say "The General Assembly shall pass a budget each biennium," the "super-long (and tense) special sessions that we had during budget years (esp. 1993) 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 . . .".

Given this background I was fascinated to see a story in the Louisville Courier Journal today headlined "Justices hear case on state spending rule: Governor's budget power challenged." Some quotes:

FRANKFORT, Ky. -- Kentucky's constitution says the state shall spend "no money" unless lawmakers vote to do so, but a lawyer for Gov. Ernie Fletcher said yesterday that the phrase should not be taken literally.

The lawyer, Sheryl Snyder, told the Kentucky Supreme Court that the constitution's wording on appropriations should not be made "to defeat the ultimate end of government, which is the safety and happiness of the people."

Snyder was making the point as part of an appeal of a ruling in a lawsuit challenging the governor's authority to spend money when lawmakers fail to pass a budget bill, as occurred in 2002 and last year.

Justice William Cooper questioned Snyder's interpretation. "We're dealing with a constitutional provision that says 'no money' -- 'no money' -- shall be drawn. 'Shall,' " Cooper said.

Justice Will Scott echoed that sentiment later, as the other side argued that Fletcher's spending went beyond essential services. The constitution says nothing about essential services, Scott said: "It says, 'No money.'"

[Updated 3/11/05] The Cincinnati Enquirer has an editorial today on the argument before the Kentucky Supreme Court. Some quotes:
Twice in recent years lawmakers have deadlocked over partisan differences, and in the two cases, Democrat Paul Patton and Republican Ernie Fletcher kept state government open by issuing short-term executive spending orders. In December, Franklin County Circuit Judge Roger Crittenden slammed both the lawmakers and Fletcher - the legislature for failing to pass a budget and the governor for spending without an approved budget.

The risk of another budget impasse between majority Senate Republicans and House Democrats remains alive. Kentucky's justices need to reconcile conflicting directives in the state Constitution and resolve this dispute between the different branches of government.

Some lawmakers and even justices in Wednesday's arguments suggested perhaps the governor in such cases should call the legislature's bluff and shut down the government. That's no option, and Kentuckians rightly voiced outrage in previous years when lawmakers deadlocked and put families and state programs at risk. Just because legislators fail to do their duty shouldn't mean the governor must fail his.

Kentucky's Constitution says: "No money shall be drawn from the State Treasury, except in pursuance of appropriations made by law." But elsewhere it requires spending for courts, law enforcement and other state functions. Fletcher's lawyers argue the governor has the power and duty to protect citizens' safety and well being, and that although he could call a special session, in cases when lawmakers can't agree, it would only waste taxpayer dollars.

If there is another impasse, all branches should be clear about their powers and duties. Budget stall-outs every two years only makes it tougher for Kentucky to catch up when the impasses are resolved.

Posted by Marcia Oddi on Thursday, March 10, 2005
Posted to Indiana Law

Ind. Courts - Part I: Has the state-wide case tracking "wheel" already been invented in Indiana?

If you are a lawyer in one of these twenty Indiana counties -- Bartholomew, Brown, Clinton, Daviess, Delaware, Elkhart, Howard, Jay, Johnson, Marshall, Miami, Monroe, Montgomery, Putnam, Randolph, Spencer, Sullivan, Sullivan, Vigo, Wabash, and Wayne -- you probably already are aware that for $39/month you can have online access to not only current case tracking information from your county's courts, but to the same information in the other nineteen listed counties. In other words, all these counties' courts are computerized and linked.

This service is provided by an Indiana business, Doxpop, LLC. According to its literature, Doxpop provides access to over 3,111,733 current and historical cases from 86 Indiana courts in the Doxpop Network (i.e. the 20 counties). During the average working day a new case is added every twenty seconds.

I started looking into this after I read the Indianapolis Star story on Tuesday headlined "Plan to link 400 courts hits a wall: Costly software glitch halts effort to computerize records statewide" and posted this ILB entry.

I recalled that blogger E. Thomas Kemp, a Richmond attorney, had written only a day or so earlier that:

Independent companies, like Doxpop (which has provided online access to 20 of Indiana's 92 counties to date), have been able to move much more quickly, and have provided an effective system that is responsive to its users without costing the taxpayers a dime.
That got me interested. As it turns out, Kemp does some legal work for Doxpop and is also a user of the service, so he knows whereof he speaks.

On the other hand, I am not a litigator, have no need for the kind of case tracking and scheduling data a litigator requires, and have been only generally aware that the Supreme Court has been undertaking an effort to "computerize the courts" for some time. In other words, a perfect person to dig into this a little further.

Here are some of the things I have found out. Ninety of Indiana's ninety-two have counties currently have computerized case-management systems (CMS). A number of different vendors provide these services to various of the counties, including CSI Computer System, Inc., providers of judicial tracking software, and Maximus, court and justice solutions. Doxpop works on top of a county's case management system. I'm told by Doxpop: "We are a completely independent company that will work with any CMS vendor and in doing so will strictly protect the trade secrets of any CMS vendor we work with." [As corrected on 3/11/05]

What Doxpop does, in the most basic terms, is at 10-minute intervals take the information from these court-based case tracking systems and make it accessible, via protected internet access, to its registered users, whereever they may be. Pretty simple. In addition, this data is finessed so that the lawyer can access items such as his calendar with all scheduled appearances, continuously updated. (See this CSI/Doxpop Court Fact Sheet and this page of "Testimonials".)

As explained in the company's literature:

For Doxpop subscribers, the benefits are access to information 24-hours/day, every day and timely notification of hearings and other important events. In addition to simply looking up information, Doxpop subscribers may opt to receive notification of hearings or other events via E-Mail, thus improving their ability to respond in a timely fashion to filings, service notices, or other actions of the court.
As for the problem of keeping tabs on court fines and costs mentioned in this ILB yesterday, the existing case-tracking systems that Doxpop builds upon have already adapted themselves to the accounting system used in Indiana counties, so this is not a problem, according to the people I spoke with at Doxpop, Ray Ontko, President, and Nick Fankhauser.

The more I learned yesterday, the more I got the feeling that the wheel already has been invented. [More coming in Part II]

Posted by Marcia Oddi on Thursday, March 10, 2005
Posted to Indiana Courts

Ind. Decisions - Court of Appeals posts four today

Leissette Lehman v. Edward & Teresa Davis, et al. (3/10/05 IndCtApp) [Tax Sale]
Hoffman, Senior Judge

* * * Because the trial court’s finding that the service of Lehman’s October 25, 2002 Notice of Filing Petition for Tax Deed did not comply with the requirements of Ind. Code §6-1.1-25-4.6 is supported by the evidence, and the finding supports the judgment, the trial court’s order setting aside the tax sale is affirmed. Affirmed.
NAJAM, J., and VAIDIK, J., concur.

Dale Glasscock, et al. v. Rae Corliss
(3/10/05) [Torts]
Vaidik, Judge
After Rae Corliss was terminated from employment, she won a defamation judgment against two executives of her former employer. On appeal, one executive argues that he should have received summary judgment on the defamation claim, but his statements sufficiently imputed criminality or occupational misconduct to merit consideration by a jury. The executives waived their argument that the trial court lacked personal jurisdiction because the defamatory acts occurred outside Indiana by seeking summary judgment on defamation. Their argument that damages were excessive also is unsuccessful because the law allows the jury to presume substantial damages after finding defamation per se. We therefore affirm the trial court’s judgment. * * *
KIRSCH, C.J. and NAJAM, J., concur.
TrRay McCray v. State of Indiana (3/10/05 IndCtApp) [Criminal Law & Procedure]
Darden, Judge
* * * All of McCray's criminal history was contained in the PSI, including an adjudication as a juvenile. McCray did not object to its accuracy; therefore, accepting it as correct, the trial court properly found his criminal history as an aggravator. McCray has failed to convince us that the trial court abused its discretion in this matter. We affirm.
MAY, J., concurs.
BARNES, J., concurs in result.
Commitment of L.W. (1/31/05 IndCtApp) [Involntary Commitment]
[Initially NFP]
Baker, Judge
Appellant-respondent L.W. appeals his involuntary commitment to Midtown Community Health Center (Health Center), a mental health facility. Specifically, he contends that the evidence was insufficient to support the trial court’s finding that he was dangerous or gravely disabled. Finding that Health Center did not carry its burden of proof with respect to the elements of dangerousness and grave disability, we reverse and remand with instructions to vacate the order of involuntary commitment. * * *
SHARPNACK, J., and FRIEDLANDER, J., concur.

Posted by Marcia Oddi on Thursday, March 10, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One from Supreme Court today

Donald Earl Houser v. State of Indiana (3/10/05 IndSCt) [Criminal Law & Procedure]
Sullivan, Justice

Defendant Donald Earl Houser was convicted of the murder of an elderly woman during the course of burglarizing her home. He challenges his convictions on grounds of trial court error in the admission of certain evidence, the constitutionality of the statute under which he was sentenced, and the severity of the sentence itself. We affirm the convictions and sentences. Any error in the admission of evidence was harmless given the evidence of Houser’s guilt; we have previously addressed and rejected the constitutional claims; and the sentence here is appropriate given the relative weight of the charged aggravating circumstance and the mitigating circumstances. * * *

Based on our review of the record and the law, we conclude that life without possibility of parole is appropriate for Houser’s murder of Mary Lou Gaerte.

Conclusion. We affirm the judgment of the trial court.

Boehm, J., concurs. Shepard, C.J., concurs with separate opinion in which Dickson, J., joins. Rucker, J., concurs except as to Part IV, from which he dissents.

Posted by Marcia Oddi on Thursday, March 10, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit posts one today

Walsh, Dennis R. v. US Dept Veterans (ED Wis.) [5 pp.]

Before FLAUM, Chief Judge, and EVANS and WILLIAMS, Circuit Judges.
EVANS, Circuit Judge. In January 2002, Dennis Walsh sent a Freedom of Information Act (FOIA) request to the United States Department of Veteran Affairs seeking “all records maintained by your agency pertaining to myself, covering the period January 1, 1973 to current date.” Walsh received a set of documents from the VA several months later. Although he also received a letter saying he had been given his “entire VA claims file,” * * *

Knowing that there were still more records, Walsh traded several letters with the Hines facility over the summer, with Walsh requesting records and the hospital denying that it had them. In September the hospital informed Walsh that his records were transferred (when, we don’t know) to Milwaukee, but the VA regional office there told Walsh it was up to him to find the records. Walsh filed an FOIA administrative appeal in December 2002. He filed this suit in March 2003. Two months later Walsh received a packet of medical records, along with a letter stating that the VA was continuing to look for additional documents. On June 24, 2003, Walsh received what he acknowledges are all the remaining records covered by his various requests. Still, Walsh went ahead with his suit, seeking a judicial declaration that he was entitled to those records, along with costs and attorney fees. The district court granted the VA’s motion for summary judgment, finding that Walsh’s claim was moot. Walsh appeals the grant of the VA’s motion and the denial of his motion for summary judgment, arguing that his claim is not moot under the FOIA and that he is entitled to judicial review under the Administrative Procedures Act (APA). * * *

Walsh contends that two related exceptions to the mootness doctrine apply to his claim: cases involving “voluntary cessation,” see Milwaukee Police Ass’n v. Jones, 192 F.3d 742, 747 (7th Cir. 1999), and actions that are “capable of repetition yet evading review,” see Krislov v. Rednour, 226 F.3d 851, 858 (7th Cir. 2000). Whether either doctrine applies to this case depends on the likelihood that Walsh will request additional documents and that the VA will again fail to produce them in a timely manner. * * *

Although Walsh is correct when he argues that our ruling leaves someone making a FOIA request without recourse if an agency belatedly complies with that request, he is wrong when he argues that Congress must not have intended that result. The judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Thursday, March 10, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Do we need an Indiana Department of Agriculture?

The Evansville Courier& Press had an interesting column yesterday by Morton Marcus, titled "Do we need an Indiana Department of Agriculture?" He proposes that agriculture is a business and as such should be part of the new Ecominc Development entity [IEDC], and that we also need:

a Department of Land Use that would study more efficient ways to employ our state's most valuable, immobile resource - land. If we want to save our land for agriculture, we must change the way we live in our cities. A Department of Land Use would focus on the distribution of housing and industry within our state. It would have domain over the planning of airport, highways, sewers, waterlines, subdivisions, sanitary landfills, and other major uses of our land. Such a department would be an advocate for recycling and for compact urban form to move us away from the sprawl that characterizes our current land use and threatens agriculture. It would advocate urban and inter-urban transportation programs to make our cities more livable and to reduce our energy consumption.

Instead we get a [proposal for a] Department of Agriculture which is focused on just one use of land. In this formulation it is assumed that cities of 10,000 or fewer persons are rural, which is often not true for suburban communities.

Further, the interests of small rural towns today may be at odds with the interests of agriculture. The economic health and growth of such places may not be consistent with intensified agricultural development. The same is true in reverse. It may be in the best interest of agriculture to eliminate small towns that stand in the way of larger, more efficient and integrated agricultural units. For example, if a livestock operation is to grow, maybe the residents of a nearby town should be relocated. Commerce in its many forms is best handled by an agency devoted to its welfare. We now have that in the IEDC. Agriculture is a business, a part of commerce. It should not be separated from the IEDC Likewise, land use requires a comprehensive overview, not a fragmented approach to a complex economic and social concern.

Maybe, the senate will consider these thoughts when it examines HB 1008.

Posted by Marcia Oddi on Thursday, March 10, 2005
Posted to Indiana Government

Ind. Law - More on "dead" House bills lawmakers hope to revive

There are a number of stories today on the bills lawmakers hope to revive. Lesley Stedman Weidenbener's story in the Louisville Courier Journal begins:

House Republicans announced yesterday that they will work to revive at least 40 proposals that failed to pass -- most of them because Democrats boycotted the session and blocked action.

Speaker Brian Bosma, R-Indianapolis, said it will require a "Herculean effort" to pass the proposals, including a plan to mandate daylight-saving time statewide, provide money for a new Indianapolis Colts stadium, and use state money to pay private school tuition. Lawmakers adjourn in April.

On the list of Republicans' 40 priorities are proposals to require photo identification for voting and to give the governor's inspector general limited power to prosecute state employees. Also on the list is a proposal that would strip the state's political parties from receiving fees that Hoosiers pay to obtain personalized license plates.

All three proposals contributed to the partisan standoff in the House that prompted minority Democrats to walk out and deny majority Republicans a quorum on the deadline day for action on bills. Republicans have a 52-48 edge in the House.

Niki Kelly's story in the Fort Wayne Journal Gazette notes:
There are many other less contentious issues on the Top 40 list, including bills to fight the spread of methamphetamine, create economic development incentive programs and give limited property tax relief.

Several of the concepts – fewer than 10, Bosma said – already exist in bills that passed the Senate, so they don’t have to be revived. Another handful, Bosma said, can be immediately placed in existing bills without concern over germaneness rules.

Republicans in the Senate have long enforced strict germaneness rules, meaning language added to an existing bill must closely relate to the original bill. It theoretically stops lawmakers from throwing a number of unrelated concepts – such as playground safety and tax breaks – into the same bill.

That’s why Senate President Pro Tem Robert Garton, R-Columbus, said hewas pleased that Daniels did not ask his caucus to be lenient with the rules to save some of the legislation important to his agenda.

Daniels invited all the Senate Republicans to his office Tuesday afternoon for a discussion, which some saw as an indicator that he would be seeking some leniency. But Garton said Daniels assured them he would not ask the caucus to shift its rules for him.

“We’ve worked hard to restore the integrity of the Senate,” Garton said.

The rules make it especially hard to save some narrow pieces of legislation that deal with only one code cite in state law – such as daylight-saving time.

“It’s a tough call,” Bosma said. “We’re searching for homes.” [emphasis added]

Actually, the daylight saving's time proposal, HB 1034, dealt with several Indiana Code provisions - it repealed IC 1-1-8.1 and added two new provisions to IC 8, Transportation. Allow me to repeat again a part of this entry from March 4th:
In Senate Committee. The Senate Committee could insert "germane" matter into a House bill. Asked whether a Senate committee could hear daylight savings time and other bills, Senator Garton said Wednesday: “I have never made a germaneness call to block a vote. I never have and never intend to do so. And I will not use the germane rule for that purpose.”

So what does "germane" mean? As I understand it, it is not a strict test, but a flexible one.

Using the daylight savings time (DST) proposal as an example:

HB 1034, as introduced and as passed out of House committee, had one section. The bill simply repealed IC 1-1-8.1.

On second reading in the House, the bill was amended to add two new sections to the bill, concerning Title 8 (highways) of the Indiana Code. The new provisions require the Indiana department of transportation to erect and maintain where appropriate signage indicating a change in the time zone line in each direction on a tollway and on the state highway system.

This addition apparently did not run afoul of the House's Rule 80 germaneness test -- provisions about highway signage could properly be added to a bill repealing daylight saving time because the additions simply expanded the concept of the original matter.

Now, in a Senate Committee, say there is a bill relating to an economic development matter. Say a Senator moves to insert the DST bill content, or part of it, into the economic development bill. Could it be successfully argued that the additions simply expanded the concept of the original economic development matter and so did not run afoul of Senate Rule 50 - which says in effect that no committee action shall be in order which seeks to insert subject matter (here time) not germane to the bill under consideration (here economic development)?

Quoting again from Senator Garton's statements Wednesday: [Re would he allow the Senate to hear DST and other bills?] "[A]s long as it is germane and as long the committee chair doesn’t object."

Finally, Michelle McNeil of the Indianapolis Star points out:
Some notable items are missing from the GOP's list.

One would take Indiana State Police troopers off riverboat casinos and have the Indiana Gaming Commission create its own security force. Another is an SBC-backed proposal that would further deregulate the telephone industry so that SBC could set its own rates.

A measure to make the state superintendent of public instruction a position appointed by the governor, and not elected by voters, is also missing from the list.

The GOP list, however, does include some initiatives supported by Democrats. Indianapolis Works, Democratic Mayor Bart Peterson's plan to consolidate government in Marion County, made the cut.

Peterson wants to save $35 million by further combining city and county government services. Even though Republican Gov. Mitch Daniels has said he supports letting Peterson try the idea, House Republicans watered down the proposal and said it needed more study.

A sidebar to the Star story includes the complete "top 40s" list:
Top GOP proposals
• Inspector: Creates an inspector general that reports to the governor, toughens state ethics rules and restricts where former employees can work for a year after leaving state government; House Bill 1002.
• Vouchers: Provides vouchers for children in failing schools; House Bill 1009.*
• DST: Enacts daylight-saving time; House Bill 1034.
• ISTEP: Switches ISTEP-Plus testing from fall to spring; House Bill 1134.
• Faith-based: Allows prisons to offer faith-based transitional dorms; House Bill 1429.
• Meth: Places most cold medicines behind a pharmacy counter to curb methamphetamine drug abuse; House Bill 1223.
• Indy Works: Requires more study of mayor's Indy Works government consolidation plan; House Bill 1435.
• Voting: Requires voters to present a photo ID before voting; House Bill 1439.
• Abortion: Requires annual inspections and licensing of abortion clinics; House Bill 1607.
• Stadium: Funds a new Downtown stadium through tax increases locally, on casino wagering and on players' salaries, and ticket surcharges; House Bill 1846.

The rest of the GOP's wish list
• Taxes: Establishes a lifelong learning tax credit; House Bill 1005.
• Ethics: Provides more protection for whistleblowers; HB 1007.
• Ethics: Establishes a cooling-off period before some former legislators can become lobbyists; HB 1090.
• Justice: Adds a judge for Howard Superior Court; HB 1121.
• Wages: Exempts more public works projects from common construction wage requirement; HB 1184.
• Government: Extends the government efficiency commission; HB 1188.
• Small business: Establishes a series of small business regulatory reforms; HB 1222.
• Tax credit: Establishes a coal gasification income tax credit; HB 1245.
• I-69: Expands tax incentives for businesses along the I-69 corridor; HB 1283.
• Taxes: Delays annual adjustments on local property tax assessments; HB 1301.
• Tax relief: Grants additional property tax relief for farmland; HB 1367.
• Tax credit: Broadens EDGE tax credit for small business; HB 1409.
• Retirement: Provides a cost of living adjustment for members of the Teachers' Retirement Fund; HB 1419.
• Tax credit: Creates a new Hoosier headquarters relocation tax credit; HB 1422.
• Charter schools: Allows interest from the common school fund to pay for charter school construction; HB 1484.
• Dropouts: Raises the high school dropout age to 18 from 16; HB 1530.
• Capital funds: Establishes regional venture capital funds; HB 1534.
• Bonds: Allows the state to issue bonds for the 21st Century Research and Technology Fund; HB 1546.
• College savings: Provides that up to $2,000 in contributions to a family college savings account can be deducted from state income taxes; HB 1566.
• PERF: Provides cost-of-living increases to members of the Public Employees' Retirement Fund; HB 1574.
• Incentives: Provides tax incentives for advanced manufacturing; HB 1668.
• Plate proceeds: Eliminates personal license plate money that goes from the Bureau of Motor Vehicles to political parties; HB 1719.
• Agriculture: Establishes agriculture enterprise zones; HB 1724.
• Crime victims: Establishes a system by which a crime victim can be notified when a convicted offender is released from prison; HB 1735.
• Child protection: Decreases number of cases each child caseworker has; HB 1743.
• Seniors: Expands property tax relief for senior citizens; HB 1747.
• Judges: Raises pay for judges, magistrates and prosecutors and increases court fees; HB 1777.
• Tuition: Requires colleges to offer parents a guaranteed tuition option; HB 1797.
• Education: Requires the Education Roundtable to study teacher retention and quality; HB 1799.
• Spending: Caps state spending at 99 percent of revenue; HB 1845.

Posted by Marcia Oddi on Thursday, March 10, 2005
Posted to Indiana Law

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

That was the headline to a Feb. 28, 2005 story -- Indianapolis Star reporter Michele McNeil's report of the connections of two Indiana legislators to Centaur, Inc. (see the ILB entry here).)

Today McNeil reports in the Star:

A lawmaker's connection to a gambling company has led a top Republican to declare that legislation to put slot machines in Indiana horse-racing tracks is dead for this year.

Another lawmaker with ties to that same company announced Wednesday he would resign from a charity funded with that company's money.

The involvement of those lawmakers with Centaur, part-owner of the Hoosier Park horse track in Anderson, was revealed last week by The Indianapolis Star.

Indiana Senate President Pro Tempore Robert Garton, R-Columbus, said there is now no chance of passing a bill allowing slot machines at horse tracks.

Garton, an opponent of expanding gambling, said other senators asked him to take the slot machines off the table after learning of business ties between Centaur and Sen. Jeff Drozda, R-Westfield, hired to do marketing for a Centaur casino in Colorado.

Killing the slot machine issue for the year is a blow to the state's horse-racing industry, but one Garton said is necessary to "protect the integrity of the Senate."

The other lawmaker with Centaur ties was Rep. David Frizzell, R-Indianapolis, who said Wednesday he had resigned as president and chief executive officer of the Third Millennium Foundation, which had hired him at an annual salary of $68,000.

In his resignation letter, Frizzell said he told the board that serving both as foundation president and as a state representative "may detract from the good work of the foundation." * * *

Because gambling companies are barred by law from donating to state and local political candidates, government watchdog groups questioned the influence of gambling in the legislature after the Star reports.

"It was the perception," Garton said, reiterating that Drozda will disclose the business ties, as required by law, on his 2005 statement of economic interest that will be filed in January. Garton said the move to stop slot machine legislation protects Drozda's integrity, too.

Garton said horse racing lobbyists planned to meet with him to try to change his mind. He said he doubted he could be swayed.

Gov. Mitch Daniels weighed in on the mingling of legislators and gambling at a meeting with The Star's editorial board this week: "I think it's bad judgment."

Garton has been a stickler for the rules since 1980, when he became the Senate's president pro tempore after two previous Senate leaders went to prison for taking bribes from a railroad group.

Posted by Marcia Oddi on Thursday, March 10, 2005
Posted to Indiana Government

Ind. Decisions - Court's ruling could reduce sentences for some inmates

"Court's ruling could reduce sentences for some inmates" is the headline to a story in today's Indianapolis Star about the Supreme Court's ruling yesterday in Smylie v. State (see yesterday's ILB entry, with case link, here). The Star story, by Kevin Corcoran and John Tuohy, reports:

The Indiana Supreme Court struck down part of the state's sentencing law Wednesday, which could lead to reductions in sentences for some criminals and make it harder for judges to order stiffer-than-usual sentences. However, prisoners who have exhausted their appeals could not seek a shorter stay behind bars. * * *

The state Supreme Court was ruling on the case of Adolphe E. Smylie, 45, who pleaded guilty in Johnson Superior Court to two counts of child seduction for offenses that took place from May 2001 to May 2002. Smylie was given consecutive two-year terms by Johnson Superior Court Judge Kevin Barton, who relied on aggravating factors no jury had heard. * * *

In its ruling, the state Supreme Court advised Indiana lawmakers that they could fix the law two ways: They could require juries to hear evidence used to enhance sentences, or they could get rid of fixed prison terms for various crimes and give judges broad power to sentence within ranges.

"It is apparent Indiana's sentencing system runs afoul of the Sixth Amendment," Chief Justice Randall Shepard wrote for the majority.

Indiana law creates a standard fixed sentence for each class of crime that can be added to or reduced based on aggravating and mitigating circumstances.

Many judges were ordering longer sentences based on information that didn't necessarily come before a jury. Now, prosecutors will have to prove that information to a jury before a sentence can be increased.

In anticipation of the ruling, the Indiana Senate passed a bill 49-0 on March 1 that addresses the Supreme Court's concerns. Senate Bill 96, written by Sens. Glenn Howard, D-Indianapolis, and David Long, R-Fort Wayne, would keep Indiana's fixed sentences and change state law to require jurors to hear evidence of aggravating factors. The bill is eligible for House action. * * *

Most Indiana trial courts did not follow the sweeping federal ruling in the Blakely v. Washington case until September, more than three months after the federal ruling had been issued, said Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council.

To meet the federal requirement, Indiana judges began holding separate hearings with jurors to receive findings on "aggravating" factors that could be used to lengthen sentences. This followed a talk by Marion Superior Court Judge Jane Magnus-Stinson at a judicial conference on potential implications of the federal ruling, Johnson said.

Magnus-Stinson said the court requires county prosecutors to file notice if they plan on introducing aggravating circumstances, with facts supporting their claims. Names of witnesses and exhibits must be turned over to the defense in case a fact-finding hearing is needed.

For background on Senate Bill 96, see this ILB entry from Feb. 23, 2005.

Deanna Wrenn of the Associated Press also has a story today on the ruling (with contributions from Sara Eaton and Niki Kelly of The Fort Wayne Journal Gazette). Some quotes:

In January [sic.], the U.S. Supreme Court threw the federal sentencing system into turmoil when it ruled that the way judges have been sentencing about 60,000 defendants a year is unconstitutional.

Indiana has a similar sentencing procedure to that of the federal system, and it was being challenged in two separate cases before the Indiana Supreme Court. It was one of those cases the court decided on a 4-1 basis Wednesday.

The Indiana General Assembly is a considering a bill that could restore the constitutionality of the state’s sentencing system.

State lawmakers had envisioned such a problem over the summer and studied the issue as part of a sentencing review commission. As a result, Sen. David Long, R-Fort Wayne, introduced legislation that has already passed the Senate changing Indiana’s sentencing statute to meet the new rules.

“The good news is Senate Bill 96 is a cure-all,” Long said Wednesday after the ruling was handed down. “It is right on the money.”

The bill would require county prosecutors to submit a list of aggravators they intend to use as a basis for an enhanced prison term against a defendant at least 30 days before the trial. They would also have to prove any factors used to increase a person’s sentence before a jury in a separate proceeding.

“This bill saves our sentencing process in the state,” Long said of the legislation, which is expected to pass easily in the House.

The U.S. Supreme Court decision had already spurred changes in Allen County as judges and attorneys throughout the state anticipated a similar ruling on the state level.

In September, the Allen County Prosecutor’s Office began filing paperwork listing the factors it believed could be used to lengthen a particular defendant’s prison term. There has been at least one trial in Allen Superior Court during which jurors ruled on aggravating circumstances submitted by prosecutors.

Allen Superior Court Judges Fran Gull and John F. Surbeck Jr. both said Wednesday they believe the transition to the Indiana Supreme Court’s ruling will be easier because some changes have already been implemented.

“We have been expecting this decision,” Gull said. “We got together and said what can we do to change it?”

Surbeck said the judges will have to read over the ruling to ensure that no other changes will be necessary.

The changes mean jurors will endure lengthier trials and defendants who admit their guilt through a plea agreement waive their rights to have a jury determine the aggravating factors that could make their sentences longer.

Many prosecutors in northeast Indiana previously told The Journal Gazette they believe proving aggravating circumstances beyond a reasonable doubt to a jury is problematic for many reasons and therefore had not yet made changes in their counties in anticipation of this ruling.

Finally, for now, check Bloomington attorney Michael Ausbrook's posting in his blog, INCourts.

Posted by Marcia Oddi on Thursday, March 10, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Washington County prosecutors face hearing

"Washington prosecutors face hearing: Two allegedly took defendant's notes" is the headline to a story today in the Louisville Courier Journal. Some quotes:

A hearing starts today on accusations of misconduct against Washington County Prosecutor Cynthia Winkler and her top deputy, Blaine Goode.

A complaint filed by the Indiana Supreme Court Disciplinary Commission accuses them of stealing notes written by a criminal defendant, then trying to cover it up.

The hearing officer's findings will go to the Indiana Supreme Court. If the accusations are upheld, Winkler and Goode could face sanctions ranging from a private reprimand to suspension or revocation of their licenses to practice law.

The disciplinary commission filed its complaint after a complaint from Lewis Steward, the man whose notes were taken.

Winkler and Goode, in court documents, admit taking the notes but deny trying to cover it up.

The complaint says their actions violated two Indiana Rules of Professional Conduct for attorneys, by violating the rights of Steward and by engaging in conduct prejudicial to the administration of justice.

The cover-up charges "add a different quality" to the case, said Donald Lundberg, the executive secretary of the disciplinary commission who signed the complaint. The alleged cover-up adds "a greater gravity to the case."

For background, see this Sept. 9, 2004 ILB entry.

Posted by Marcia Oddi on Thursday, March 10, 2005
Posted to Indiana Courts

Ind. Law - Camm, Boney charged in triple-murder plot

The headline in the Louisville Courier Journal this morning is "Camm, Boney charged in triple-murder plot." The story by Ben Z. Hershberg begins:

For about an hour yesterday, former Indiana State Police Trooper David Camm thought he was free -- exonerated in the 2000 murders of his wife and two children.

The charges he faced had been dismissed by a judge in Warrick County.

But almost immediately, Camm, who was out on bond and living with a relative, was rearrested and taken to the Floyd County jail, charged with three counts of murder and one count of conspiracy to commit murder.

He was being held there last night along with a co-defendant, Charles D. Boney, 35, of Louisville, a convicted felon, who was facing the same charges.

Prosecutors allege that Boney gave Camm the gun used in the murders, which occurred on Sept. 28, 2000, and that both were present at the scene of the crime -- the garage of the Camms' home in Georgetown.

The effect of the legal maneuvers was to bring both defendants into the case in one jurisdiction -- though by the end of the day it wasn't clear that the jurisdiction would be Floyd County.

Camm was convicted of the murders in 2002, but last year the Indiana Court of Appeals overturned the verdict.

Last November Floyd County Prosecutor Keith Henderson refiled the murder charges against Camm and agreed to move the case to Warrick County because of publicity locally.

That's where things stood until yesterday, when Henderson moved to have the charges dismissed in Warrick County and then filed new charges in Floyd Circuit Court -- combining Camm's case and Boney's.

The story, along with related sidebars and additional stories, is available here.

Posted by Marcia Oddi on Thursday, March 10, 2005
Posted to Indiana Law

Wednesday, March 09, 2005

Ind. Decisions - [Updated] More on today's decision in Smylie v. State

Not to be overly picky, but as a blogger, I am sensitive to these things. Page 11, footnote 12 of today's Smylie v. State:

We also note that Blakely has created such controversy that the so-called owner of the “Blakely Blog,” Professor Douglas A. Berman, of Moritz College of Law at The Ohio State University, has stopped tracking state cases related to Blakely because of the overwhelming number and diversity of the holdings. Douglas A. Berman, In re State Blakely Interpretations, (Dec. 9, 2004) at http://sentencing.typepad.com. That so many states are wrestling with the meaning of Blakely is further evidence of its unpredictability and a further indication that reasonable lawyers would not have known of the outcome.
Professor Berman is the owner of the justly-acclaimed Sentencing Law and Policy blog, NOT the "now retired" Blakely Blog ("Here Comes the Fat Lady: After giving it some thought, I’ve decided to put the Blakely Blog to bed for good.")

[Updated] See Professor Berman's just posted comments here. Among other things, he says:

In what appears to be the most comprehensive state supreme court decision to date (and the first major post-Booker state supreme court ruling), the Indiana Supreme Court today has ruled on Blakely's applicability to Indiana's sentencing structure in Smylie v. Indiana * * *.

Posted by Marcia Oddi on Wednesday, March 09, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Heath and Smylie handed down this afternoon?

That is the "word on the street" -- I'll try to post them as soon as I can get my hands on them.

[Update] Only Smylie. Here it is:

Smylie v. State (3/9/05 IndSCt) [Criminal Law and Procedure]
Shepard, Chief Justice

Attempting to take account of both Blakely and Booker, we hold today that portions of Indiana’s sentencing scheme violate the Sixth Amendment’s right to trial by jury, and that the new rule of Blakely should apply to all cases pending on direct review at the time Blakely was announced in which the appellant has adequately preserved appellate review of the sentence. * * *

We reverse that part of Smylie’s sentence that enhances the standard penalty and remand for a new sentencing hearing in which the State may elect to prove adequate aggravating circumstances before a jury or accept the statutory fixed term. We affirm the order for consecutive sentences.
Sullivan, Boehm, and Rucker, JJ., concur.

Dickson, J., dissents with separate opinion. Because of recent decisions of the United States Supreme Court, the majority chooses to preserve the constitutionality of Indiana's criminal sentencing system by judicially severing statutory provisions that direct trial judges to consider aggravating and mitigating circumstances to determine sentences, and by engrafting a new procedure requiring that aggravating circumstances be submitted for jury determination. I prefer a less onerous construction that leaves intact the language of the statute and modifies only judicial precedent interpreting the statute. * * *

[More] I just did a search - Heath is not mentioned in Smylie.

Posted by Marcia Oddi on Wednesday, March 09, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals posts four today, Tax Court posts one

H & G Ortho, Inc., et al. v. Neodontics International, et al. (H & G I) (3/9/05 IndCtApp) [Contracts; Employment Law]
Baker, Judge

We are confronted today with separate appeals involving the same parties and related issues that arose from the same cause of action. In this first appeal, we are called upon to decide, among other things, whether the trial court’s award of damages for breach of contract and the issuance of an injunction were proper with regard to a party’s alleged breach of a covenant not to compete. We also determine in the second appeal that we hand down today—H & G Ortho, Inc. et al v. Neodontics Int’l, Inc., et al., No. 41A05-0406-CV-336 (Ind. Ct. App. Mar. 9, 2005) (hereinafter referred to as H & G II)—whether the award of attorney’s fees and litigation costs that the trial court awarded to the prevailing party should be upheld.

In this case, the appellants-defendants, Harold and Gladys Canada and their companies—H & G Ortho, Inc. (Ortho), and G & H Wire Company, Inc. (G & H Wire) (collectively referred to as the Canadas)—appeal the trial court’s judgment entered in favor of the appellees-plaintiffs Neodontics International, Inc., d/b/a G & H Wire Company and Michael Jahns individually (collectively referred to as Neodontics), which determined that the Canadas breached a non-competition covenant regarding the sale of their orthodontic supply business. The Canadas also urge that the amount awarded as liquidated damages and the forfeiture provisions contained in the purchase agreement (Agreement) amounted to an unenforceable penalty. The Canadas further argue that the trial court erred in denying their request for damages on a counterclaim they had filed for the alleged wrongful issuance of an injunction against them. Concluding that the trial court properly determined that the Canadas breached the non-competition clause of the Agreement, that the damage award was reasonable, and that the Canadas’ request for damages on their counterclaim was properly denied, we affirm the judgment of the trial court.

H & G Ortho, Inc., et al. v. Neodontics International, et al. (H & G II) (3/9/05 IndCtApp) [Attorney Fees]
Baker, Judge
This is the second appeal that we decide today involving the same parties and related issues that arose from the same cause of action. In the first appeal—H & G Ortho, Inc., et al.. v. Neodontics Int’l, Inc., et al., No. 41A05-0401-CV-59 (Ind. Ct. App. Mar. 9, 2005) (hereinafter referred to as H & G I)—we were called upon to resolve, among other things, whether the trial court’s award of damages for breach of contract and the issuance of an injunction were proper with regard to a party’s alleged breach of a covenant not to compete.

In this appeal, the appellants-defendants H & G Ortho, Inc., and Harold and Gladys Canada (collectively, the Canadas), and G & H Wire Company, Inc., challenge the trial court’s award of $572,689.73 in attorney’s fees and litigation costs to the appellees-plaintiffs Neodontics International, Inc., d/b/a G & H Wire Company (Neodontics) and Michael Jahns, individually (collectively referred to as Neodontics), claiming that the award of attorney’s fees was excessive, unreasonable and disproportionate to the judgment. * * *

That said, we now examine the reasonableness of the attorney fee award in this case. At the hearing, J. McNeely, an attorney from Shelbyville, testified that the number of hours for the legal work that Neodontics’s counsel performed was very reasonable. McNeely even estimated that the hours were “on the conservative side.” McNeely also praised the “quality of the research,” and the “effectiveness of [Neodontics’s] discovery.” McNeely had surveyed ten other Indianapolis law firms of various sizes and determined that “a reasonable range of fees in a case of this quality and outcome should be $648,000 on the low end, and $810,000 on the high end.”

David Tittle—an expert who testified for the Canadas—acknowledged that the hourly attorney fee rate was reasonable, and he did not disagree that the number of hours devoted to the case by Neodontics’s legal counsel was not unreasonable.

In light of this evidence that was presented to the trial court, we cannot say that the award of attorney’s fees was clearly erroneous. The evidence presented at the hearing justified the amount of the award as well as its reasonableness. As a result, we find no error. The judgment of the trial court is affirmed.
SHARPNACK, J., and FRIEDLANDER, J., concur.

Timothy D. Meadows v. State of Indiana (3/9/05 IndCtApp) [Criminal Law and Procedure]
Hoffman, Senior Judge
* * * On June 18, 2004, Petitioner filed a petition for post-conviction relief alleging that the trial court committed errors in sentencing Petitioner. The post-conviction court denied Petitioner’s petition on August 12, 2004. Petitioner brought this appeal.

Petitioner claims that the post-conviction court erred in denying his petition because the trial court erroneously imposed consecutive sentences. The State contends that Petitioner has waived this argument by failing to raise this issue in a direct appeal.

The supreme court has held that a person who pleads guilty is not permitted to challenge the propriety of that conviction on direct appeal. See Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004). But, if a defendant pleads guilty, he or she is entitled to contest the merits of a trial court’s sentencing decision in cases such as this where the sentence is not fixed by the plea agreement. Id. The supreme court has also held that an issue that is known and available, but not raised on direct appeal, may not be raised in post-conviction proceedings. Id. at 232.

In Collins and Gutermuth v. State, 817 N.E.2d 233 (Ind. 2004), the supreme court held that when challenging the sentence imposed, a defendant who has pled guilty with an open plea must file a direct appeal, or if the time for filing a direct appeal has run, to file an appeal under Ind. Post-Conviction Rule 2. * * * Therefore, the State is correct that the Petitioner’s challenge to his sentence was waived due to procedural default. Furthermore, the post-conviction court should have dismissed the petition for post-conviction relief for lack of jurisdiction without prejudice to any right Petitioner may have to file a belated notice of appeal in accordance with P-C.R. 2. * * * Remanded with instructions
NAJAM, J., and VAIDIK, J., concur


Ryan Moon v. State of Indiana
(3/9/05 IndCtApp) [Criminal Law and Procedure]
Vaidik, Judge
After twenty-seven-year-old Ryan Moon had sexual intercourse with a fourteen-year-old girl, he was convicted of sexual misconduct with a minor and received the maximum sentence. On appeal he argued that he should not have had the burden to prove the defense that he reasonably believed that his victim was older than fifteen; that his sentencing enhancement violated the Sixth Amendment; and that the trial court should not have rejected a proffered mitigator. We affirm, holding that the burden to prove the “reasonable belief” defense properly may be placed on a defendant charged with sexual misconduct with a minor and that the sentence was within the trial court’s discretion. * * *

The presentence report notes Moon’s past convictions for criminal confinement, resisting law enforcement, escape, contributing to the delinquency of a minor, and public intoxication, and the trial court recited them. Moon also violated probation.

As to the first aggravator, the trial court noted that Moon had five prior criminal 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 second and third aggravators derive from the criminal history aggravator and would seem not to implicate Blakely. See Carson v. State, 813 N.E.2d 1187, 1189 (Ind. Ct. App. 2004) (aggravators derivative of criminal history do not implicate Blakely).

The fourth aggravator—that Moon exhibits a “criminal thinking pattern”—is problematic under Blakely because it was neither proved beyond a reasonable doubt nor admitted by Moon. But because 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, the invalidity of the fourth aggravator would have no effect on Moon’s ultimate sentence. See Carson, 813 N.E.2d at 1189 (holding that a single aggravating circumstance supports an enhanced sentence even if other aggravators are invalid under Blakely). * * *

Because the trial court found three aggravating factors that do not violate the principles of Blakely and did not abuse its discretion in rejecting a proffered mitigator, there is no sentencing error. We affirm the trial court’s judgment.
NAJAM, J., concurs.
KIRSCH, C.J., concurs as to Part I and concurs in result as to Part II.

EFP Acquisition Corporation v. Department of Local Government Finance (3/8/05 IndTaxCt - NFP) [Property tax]
Fisher, Judge
EFP Acquisition Corp. (EFP) appeals from a final determination of the State Board of Tax Commissioners (State Board) valuing its real property for the 1995 tax year. The issue this Court must address is whether EFP’s improvements are entitled to additional functional obsolescence depreciation. * * *

Because EFP failed to link the factors causing obsolescence with an actual loss in its property’s value, it failed to make a prima facie case quantifying the amount of obsolescence to which it was entitled. Thus, the Court AFFIRMS the State Board’s final determination.

Posted by Marcia Oddi on Wednesday, March 09, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts one today

Ritchie Halsema v. State of Indiana/Frank L. Halsema v. State of Indiana (3/9/05 IndSCt) [Criminal Law and Procedure]
Rucker, Justice

Is the weight of a given quantity of drugs a matter of general knowledge and experience that jurors possess? On this record we conclude it is not. * * *

In order to prove the element of weight of drugs or controlled substances, the State must either offer evidence of its actual, measured weight or demonstrate that the quantity of drugs or controlled substances is so large as to permit a reasonable inference that the element of weight has been established. In this case the State failed to carry its burden. As a result, the Halsemas’ convictions for possession of methamphetamine within 1000 feet of a school as Class A felonies are reversed. In Frank Halsema’s case we remand this cause to the trial court with instruction to impose sentence as a Class B felony. In Ritchie Halsema’s case we remand with instructions to vacate the conviction.
Sullivan and Boehm, JJ., concur.

Shepard, C.J., concurs in part and dissents in part with separate opinion. Dickson, J., joins.

Posted by Marcia Oddi on Wednesday, March 09, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Law - House Republicans identify key legislation

"House Republicans identify key legislation: Forty bills are targeted for passage among 132 that died during recent boycott by Democrats" is the headline to a brief story posted at about 11:30 a.m. on the Indianapolis Star website. Few surprises:

House Republicans unveiled their legislative Top 40 today, a list of proposals they want to see revived including Daylight Saving Time, a funding plan for the Indianapolis Colts stadium and a special prosecutor for the governor.

Last week, Democrats boycotted the floor of the House as part of their opposition to several proposals they found onerous -- including one that would require voters to show photo identification at the polls. They say this would be too burdensome for senior citizens and low-income Hoosiers who may not have a driver's license, or another photo ID. Democrats also object to giving Gov. Mitch Daniels his inspector general who can not only investigate alleged crimes in state government, but could prosecute, too.

The Democrats' walkout during two crucial deadline days killed 132 bills.

Now, Republicans are working to resurrect 40 of them and find them legislative homes in other bills.

Initiatives also on the priority list would:

• Move ISTEP-Plus testing from the fall to the spring;

• Require prisons to offer faith-based transitional dormitories;

• Put many cold medicines behind a pharmacy counter to curb the methamphetamine drug problem;

• Require a photo ID at the polls;

• Require the state Department of Health to annually inspect and license abortion clinics.

Even Indy Works made the cut. * * *

[House Speaker Brian] Bosma admits it will be difficult to find bills to put all of these proposals. There are seven weeks left in the session, and legislative rules restrict what proposals can be added on to existing bills.

"It will be a Herculean effort to find homes for all of these bills," he said.

Daylight Saving Time could be the most difficult to resurrect because it doesn't easily fit into an existing bill. "It will take a great deal of effort, especially for Daylight Saving Time," Bosma said.

Posted by Marcia Oddi on Wednesday, March 09, 2005
Posted to Indiana Law

Ind. Decisions - 7th Circuit posts three today

Details may follow

Iao, Zhen Li v. Gonzales, Alberto R. (Immigration) [9 pp.]

Knox, Sammy v. USA (ND Ill.) [7 pp.]

Premcor USA Inc v. American Home Assur (ND Ill.) [13 pp.]

Posted by Marcia Oddi on Wednesday, March 09, 2005
Posted to Ind. (7th Cir.) Decisions

Law - Federal court overturns ruling involving ND's ACE program

A South Bend Tribune headline today: "Federal court overturns ruling involving ND's ACE program: It's OK for AmeriCorps to place volunteers in Catholic schools." Some quotes from the story by Margaret Fosmoe:

SOUTH BEND -- A federal court ruling Tuesday means the University of Notre Dame can continue to place AmeriCorps volunteers as participants in the university's Alliance for Catholic Education teacher-training program.

A federal appeals court ruled that AmeriCorps may continue financing programs that place volunteers in Catholic schools, overturning a lower court ruling that said such funding unconstitutionally crosses the line between church and state.

"For us, this means business as usual," John Staud, director of Notre Dame's ACE teaching program, said Tuesday afternoon. "This is great news for us and for Catholic schools."

The American Jewish Congress had complained that instructors who teach secular subjects at religious schools under the AmeriCorps program may also teach religious subjects.

In a 3-0 decision, U.S. Court of Appeals for the District of Columbia Circuit Judge A. Raymond Randolph wrote the government is not promoting religion by financing the programs. The appeals court also said AmeriCorps creates no incentives for participants to teach religion.

"And if they do teach religious subjects, they are prohibited from wearing the AmeriCorps logo when they are doing so," Randolph wrote.

The American Jewish Congress will decide in the coming weeks whether to appeal the decision to the U.S. Supreme Court, said Marc Stern, general counsel for the organization, in a telephone interview from New York.

Here is the opinion, American Jewish Congress v. Corp. for National and Community Service (3/8/05 DC Circuit)

Posted by Marcia Oddi on Wednesday, March 09, 2005
Posted to General Law Related

Ind. Courts - More on "Plan to links 400 courts hits a wall"

The AP today has a brief story today headlined "Work stops on statewide court-computer network." The story ends with this quote:

Without a statewide system, a judge in one county has no easy way of knowing whether a defendant about to be sentenced faces a string of criminal charges elsewhere in the state.
I checked back to yesterday's story in the Indianapolis Star and found that, indeed, the sidebar headed "benefits of the system" listed:
Help judges find a suspect's criminal background in other counties as they weigh bond and sentencing decisions.
I'm not a litigator, but I've learned a little about sentencing recently and this did not sound right, so I asked a fellow blogger for his reaction:
Judges are not supposed to go out and do their own factual research, we know that they must rely on the parties to present evidence in court. Prosecutors and probation officers would have a bigger need for access to records from the other 91 counties on pending criminal charges and prior records (The NCIC database is notoriously unreliable in this respect). As a defense attorney, I would strenuously object to a judge taking some type of judicial notice of a record found on a computer database. Instead, the prosecutor would have to get certified copies of the sentencing judgment for submission into evidence at a contested sentencing hearing (like a habitual offender hearing). Normally, the probation officer compiles a criminal history from available records and an interview with the defendant. At sentencing, either party can challenge the record stated in the probation officer's report, and the Court will specifically ask the defendant if the report is correct.
Later on today I hope to do a post on the private company that has put the case tracking information of 20 Indiana counties, so far, online. Yesterday I contacted the company, Doxpop, LLC, for information. They have been very helpful. One issue I raised was the question of fines and fees. The Star story yesterday reported:
The breakdown surfaced in December, as Marion County officials tested a piece of software designed for Indiana civil courts. They found it lacked a critical element -- the ability to keep tabs on court fines and costs. Officials at Computer Associates, based in Islandia, N.Y., declined to be interviewed for this article.
I asked Ray Ontko, President of DoxPop: "A brief review of what you sent indicates that it also tracks fees and fines, which appears to have been a downfall of the Court's system." His response:
The fees, fines, and payments are a strange bird. In Indiana, they are tracked using a method that isn't quite like a normal double-entry bookkeeping system. Since we partner with vendors who already provide a solution in Indiana, it hasn't been hard to get the information. CA hasn't been working with local government in Indiana; it doesn't surprise me that they ran into difficulties.

Posted by Marcia Oddi on Wednesday, March 09, 2005
Posted to Indiana Courts

Ind. Law - Editorial opposes SJR 1, modifying appellate selection and retention

The Fort Wayne Journal Gazette has an editorial today opposing SJR 1. Some quotes:

Among its various changes to the state constitution, the most troubling appears to strip the retention of Indiana’s Supreme Court justices and appellate court judges from voters’ hands and place it with the state Senate.

The resolution forces judges to reapply with the Senate for each new 10-year term. And judges could be forced from the bench if at least 60 percent of Senate members vote against retention.

If the proposed amendment eventually becomes law, Hoosiers would suffer a politicization of the judiciary. * * *

Consider someone like Justice Frank Sullivan Jr. He’s a respected jurist, a magna cum laude graduate of Indiana University School of Law with a master of laws from the University of Virginia. He was also a staff director to former Indiana Democratic Congressman John Brademas and served as Indiana’s budget director under Gov. Evan Bayh just before his selection to the Supreme Court. Would a Senate-controlled retention vote be more about Sullivan’s skills as a justice, or would partisans explore his past work with Democratic politicians? It’s conceivable that judicial independence could be damaged on the eve of a retention vote where a judge faces a politically charged case or an issue that involves a key senator or political benefactor.

See earlier ILB entires on SJR 1 from 3/5/05 and 3/7/05.

Posted by Marcia Oddi on Wednesday, March 09, 2005
Posted to Indiana Courts | Indiana Law

Law - Chicago contract for citywide 'Wi-Fi' network pondered

The Chicago Tribune reports today:

Chicago officials took the first tentative steps Tuesday toward installation of a citywide wireless network that would allow residents to connect to the Internet from easy chairs, school desks and office break rooms--and provide City Hall with a major source of new revenue.

A city task force will study the best way to offer so-called Wi-Fi service, and Ald. Edward Burke (14th) said he will draft legislation designed to preserve the city's right to permit installation in Chicago before the General Assembly can consider a bill that he said would preclude municipalities from doing so.

Service probably could be provided more cheaply than what people now pay for wired Internet service, and "instead of going to Starbucks or another upscale coffee or sandwich shop to get wireless access for your laptop, it could be available throughout the entire city," Burke said.

Aside from scattered businesses that may charge a fee, the biggest provider of Wi-Fi service in Chicago is the city's public library system. People with laptops can connect for free at 78 library locations where installations "provide high speed data into communities and bring people into the libraries," said Christopher O'Brien, the city's chief information officer.

Citywide Wi-Fi installation would entail placing about 7,500 small antennas on street light poles "every block and a half or two blocks" citywide, O'Brien told aldermen attending a joint meeting of the City Council's Finance and Economic Development Committees. He estimated the cost at $18.5 million.

Possible service options range from offering the connectivity for free to creating a public utility that would provide the service for a fee, O'Brien said.

But the approach that appears to be the most practical would be for the city to select a company that would cover the cost of the antenna installation, maintain the system, upgrade it when new and better technology is developed and remedy any service problems, Burke said. * * *

State Sen. Steve Rauschenberger (R-Elgin) has proposed a measure that would bar Illinois municipalities from operating broadband or hi-speed communications businesses. Experience in other states has shown that cities have lost money after being enticed by equipment makers and other vendors to offer service they are not accustomed to provide, he said.

But if his measure passes, it would have no effect on a municipality contracting with a private firm to provide Wi-Fi service, Rauschenberger said. "That would not be prohibited under my bill," he said. "It would be encouraged. ... In fact, if [Burke] was looking for somebody to testify on behalf [of the proposal], I probably would."

Posted by Marcia Oddi on Wednesday, March 09, 2005
Posted to General Law Related

Ind. Courts - Part II of Judge Tinder's interview in "Underneath their Robes" is now available

Part II of Judge Tinder's interview in "Underneath their Robes" is now available. Access it here. Well worth reading. A sample:

Q: What advice -- perhaps in the form of five or ten helpful hints -- would you offer to newly commissioned federal district judges?

A: Unsolicited advice to new federal district judges:

1. You are participating in a marathon, not a sprint. You need to maintain your health, a clear head and a pace that will carry you to completion.

2. Everything you have learned about law before beginning this job is just the starting point. Do you remember studying for the bar exam, especially on subjects that you didn’t take in law school? Welcome to a U.S. District Court.

3. The case that you prepare for thoroughly will settle. The case that you ignore will go to trial–badly.

4. Oral arguments are useful if you are prepared nearly well enough to make your ruling before the argument starts, so that you know the case about as well as the lawyers do.

5. It would be a mistake to lower your law clerk hiring standards to employ someone as a favor to a friend.

Posted by Marcia Oddi on Wednesday, March 09, 2005
Posted to Ind Fed D.Ct. Decisions

Tuesday, March 08, 2005

Ind. Gov't. - The Howey Report on the General Assembly and Governor

The Decatur Daily Democrat has an opinion piece today on our General Assembly and Governor. A quote:

In the Senate, there is the one remaining legislative figure - President Pro Tempore Robert D. Garton - who has yet to make a spectacle of himself. He has shown restraint and has been constructive.

For the taking, Sen. Garton can move into unclaimed territory, that of elder Hoosier statesman.

And there's the Animal House of Representatives, graveyard of daylight- saving time, government reform and enhanced protection of our children. It is the Delta House of Indiana government. It is a place of food fights and the kind of petty games and one-upsmanship you might expect in college ... no, make that junior high school.

Posted by Marcia Oddi on Tuesday, March 08, 2005
Posted to Indiana Government

Ind. Decisions - Court of Appeals posts three today

Indiana Family & Social Services Administration, et al. v. Ace Foster Care, et al. (3/8/05 IndCtApp) [Administrative Law]
Crone, Judge

Case Summary. Indiana Family and Social Services Administration (“FSSA”), Division of Family and Children, Lake County Office, appeals the granting of a preliminary injunction requiring the Lake County Office of Family and Children (“LCOFC”) to contract with Ace Foster Care and Pediatric Home Nursing Agency Corporation (“Ace”). We reverse.

Issue. The dispositive issue is whether the trial court abused its discretion in granting the injunction. * * *

Ace has failed to demonstrate irreparable harm. We therefore conclude that the trial court abused its discretion in granting the injunction. Accordingly, we reverse.
RILEY, J., and ROBB, J., concur.

Joseph T. Pawlik v. Ivy C. Pawlik (3/8/05 IndCtApp) [Family Law]
Friedlander, Judge
Joseph T. Pawlik (Pawlik) appeals an order granting physical custody of his daughter, M.P., to Ivy C. Collins (Collins), M.P.’s mother and Joseph’s ex-wife. Pawlik challenges that ruling on only one basis, which is reflected in the following restated issue: Did the trial court err in permitting Collins’s counsel to question Pawlik’s mother about her religious beliefs and practices? We affirm. * * *

In summary, we emphasize that Rule 610 applies in dissolution and custody proceedings just the same as it does in all other proceedings. We clarify today, however, that it does not operate as an absolute bar to evidence about the religious beliefs of parties seeking custody of a minor child. Rather, by its own terms, it operates only to bar the use of such testimony if it is offered for the purpose of buttressing or impugning the credibility of a witness. In the instant case, Pawlik lived with his parents at the time of the final hearing and had done so for a period of eight months. Although Pawlik testified that his goal was to secure his own housing, he admitted nothing had been done in that respect. It was undisputed that while Pawlik lived with Mary Ann, she assumed considerable responsibility in taking care of M.P. on a daily basis. Finally, we note that Mary Ann acknowledged Pawlik and M.P. did not share her religious convictions and practices. She further acknowledged that M.P.’s religious instruction would be Pawlik’s responsibility – not Mary Ann’s – in the event that Pawlik was awarded custody. Under these circumstances, and after reviewing the disputed cross-examination, we are satisfied the questioning of Mary Ann about her religious beliefs did not run afoul of Rule 610, and therefore did not violate anyone’s constitutional rights. There being no other claim of error, we affirm the judgment of the trial court. Judgment affirmed.
SHARPNACK, J., and BAKER, J., concur.

Patient's Compensation Fund v. Robert Hicklin, et al. (3/8/05 IndCtApp) [Medical Malpractice]
Najam, Judge
The Patient’s Compensation Fund (“the Fund”) brings this certified interlocutory appeal from the trial court’s denial of its motion to dismiss a claim for excess damages under the Medical Malpractice Act (“the Act”) brought by Robert E. Hicklin, Jr., as Personal Representative of the Estate of Millard H. Black, Deceased (“the Estate”). The Fund presents a single issue for our review, namely, whether the Estate satisfied the statutory prerequisites to seeking damages from the Fund. We reverse. * * *

We hold that the agreement between WBH and the Estate does not satisfy the requirements under Section 4(b), namely, that a health care provider spend more than $75,000 on the sum of an immediate payment (or present payment) to the claimant and the cost of a periodic payments agreement. As such, the Estate is not entitled to access the Fund. The trial court erred when it denied the Fund’s motion to dismiss the Estate’s petition for excess damages. Reversed.
KIRSCH, C.J., and VAIDIK, J., concur.

Posted by Marcia Oddi on Tuesday, March 08, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts 4 today

Winniczek, Hilary M. v. Nagelberg, Sheldon [duplicate of below]

Winniczek, Hilary M. v. Nagelberg, Sheldon [3 pp.]

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
PER CURIAM. After we reversed the judgment, 394 F.3d 505 (7th Cir. 2005), the appellants submitted a bill of costs in the amount of $827. The appellee objects to certain items. One of his objections presents a novel question; hence this opinion. The bill of costs includes this court’s docketing fee of $250 * * *.

K., Casey v. St. Anne Commun 302 (CD Ill.) [21 pp.]

Before FLAUM, Chief Judge, and POSNER and SYKES, Circuit Judges.
POSNER, Circuit Judge. This appeal by an Illinois school district presents a novel issue concerning the scope of the “stay put” provision of the Individuals with Disabilities Education Act, 20 U.S.C. § 1415(j). The Act requires states such as Illinois that accept federal funding for the education of disabled children to provide them with a “free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.” [citations omitted] The particulars of the child’s program are required to be set forth in an “Individualized Education Program” devised by school officials in collaboration with the child’s parents. 20 U.S.C. § 1414(d). Hearing officers resolve disputes regarding the IEP or its implementation. § 1415(f). * * * Affirmed.

SYKES, Circuit Judge, dissenting [see p. 9]. I respectfully dissent. Acacia Academy was not Casey K.’s “then-current educational placement” for purposes of the “stay-put” provision of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(j). * * *

Allstate Insurance v. Flanagan, Jay (ND Ill.) [6 pp.]

Before POSNER, RIPPLE, and SYKES, Circuit Judges.
POSNER, Circuit Judge. Allstate petitions us under Fed. R. Civ. P. 23(f) for leave to appeal the district court’s decision to certify under Rule 23(b)(2) a class of plaintiffs who allege that Allstate constructively discharged them in order to deprive them of benefits to which ERISA entitled them. We grant the petition (and proceed to decide the merits) because it presents a novel and important issue: whether certification under Rule 23(b)(2) is proper when, though injunctive or declaratory relief is sought rather than damages, individual hearings may be necessary to determine causation and hence liability. * * *

We conclude that this class action should have been certified, if at all, under Rule 23(b)(3) rather than under (b)(2). The certification is therefore VACATED.

Posted by Marcia Oddi on Tuesday, March 08, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - City talks on New Albany DVD end

"City talks on New Albany DVD end: Appeal of federal order to be pursued" is the headline to a story by Ben Zion Hershberg today in the Louisville Courier Journal. Some quotes:

New Albany has halted talks aimed at settling litigation between the city and an adult video store that opened last week.

"The consensus is that settlement is not appropriate at this time," said City Attorney Shane Gibson.

He said he will file a motion with U.S. District Court to cancel the settlement conference scheduled for April 28.

The city will pursue its appeal of a federal court order issued in January requiring it to let the video store open, Gibson said.

No hearing date has been set for the appeal, to be heard by the 7th U.S. Circuit Court of Appeals. But the city has filed notice that it intends to appeal.

Steve Mason, the lawyer for New Albany DVD, had offered several settlement options to the city. But he said yesterday that he's not too disappointed the city has rejected the offers.

"We'll be making fees for years to come," Mason said, referring to himself and the other lawyers involved.

Access the ILB entry on Judge Barker's January 4th decision here. Access the ILB link to the judge's ruling in New Albany DVD v. City of New Albany here.

Posted by Marcia Oddi on Tuesday, March 08, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Get the politics out of county judiciary

"Get the politics out of county judiciary" is the title to an editorial today in the Indianapolis Star. Some quotes:

Our position is: Lawmakers should come up with a statewide, nonpartisan system for appointing county judges.

Although a proposal to change the way Marion County judges are selected appears doomed during this legislative session, the subject deserves further scrutiny by a study committee. [The proposal was HB 1703 - see ILB entry here.]

Indiana's courts are in dire need of uniformity. Lawmakers ought to begin with how judges are selected -- not just in one county, but statewide. * * *

The governor should have a hand in naming state supreme and appellate court judges, but he has better things to do than concern himself with local courts. Those appointments ought to come from nonpartisan panels involving representatives of local bar associations, law enforcement officials and law school deans who know the candidates and the community.

Under such a system, judges should have to face periodic retention votes, giving the public the option of removing jurists who aren't up to the job.

Posted by Marcia Oddi on Tuesday, March 08, 2005
Posted to Indiana Courts

Ind. Law - Latest on Camm prosecution

"Camm not cleared by second arrest" is the headline to this story today in the Louisville Courier Journal. Some quotes:

Floyd County Prosecutor Keith Henderson said yesterday that he will continue to pursue murder charges against former Indiana state trooper David Camm in the deaths of his wife and two children, despite the arrest of a Louisville man in the case.

After asking a judge for more time to file formal charges against 35-year-old Charles D. Boney, Henderson said at a news conference that "Mr. Boney will be a co-defendant" in the case.

Asked if that meant the charges against Camm would be prosecuted, he replied: "Absolutely."

Posted by Marcia Oddi on Tuesday, March 08, 2005
Posted to Indiana Law

Ind. Gov't. - Daniels appoints Dr. Judith Monroe to head the Indiana State Department of Health

The Indianapolis Star reports today that Governor Daniels has appointed Dr. Judith Monroe to head the Indiana State Department of Health. Some quotes:

Monroe, 52, has served as director of the Primary Care Center and Family Medicine Residency Program at St. Vincent Hospitals and Health Services in Indianapolis since 1992. She earned her medical degree from the University of Maryland and formerly worked as director of clinics with the Indiana University School of Medicine's Department of Family Medicine.

"Public health service is an important part of my life," Monroe said. "In this role, I'll be able to do more to help Hoosiers turn around their lifestyles so we can become a healthier society." * * *

In announcing the appointment, Daniels also noted another Indiana milestone: Monroe will serve as medical director for the state's Medicaid program. This marks the first time the two agencies responsible for regulating and paying for the health care of the state's residents have had a direct connection.

"Linking the Health Department with the financial throw weight of Medicaid will allow greater and more rapid evolution of the health care delivery system in quality and cost containment," Daniels said.

Hoosiers pay more than the national average for health care, but that doesn't translate into better health, Daniels said. He expects Monroe to help turn around the trend of Indiana being ranked near the bottom on national lists related to health issues like smoking and obesity.

Posted by Marcia Oddi on Tuesday, March 08, 2005
Posted to Indiana Government

Courts - Plan to link 400 courts hits a wall

"Plan to link 400 courts hits a wall: Costly software glitch halts effort to computerize records statewide" is the headline to an amazing story today by Staci Hupp in the Indianapolis Star. Some quotes:

The $74 million project to computerize and link all of Indiana's courts has ground to a halt after more than two years, millions of dollars and a major software glitch.

Now, after recent layoffs and a management overhaul, project leaders are trying to calculate their next move. What was to be a six-year project now is on hold as state officials reassess plans.

If successful, the project would link Indiana's labyrinth of roughly 400 civil and criminal courts, a system recognized as one of the most complicated in the nation. Today's system is so antiquated that in one county, strips of paper are drawn from a bucket to assign cases, and in another, a criminal can inadvertently be released because of a computer glitch.

The Indiana Supreme Court's venture has eaten up at least $7.5 million so far, although officials say they aren't sure how much they've spent overall. * * *

Software development was scheduled to wrap up this year and be run on a test basis in a handful of counties, including Clay and Marion.

The problem: Software designed by contractor Computer Associates International Inc. -- already paid more than $6 million by the state -- doesn't work. No one knew it would fail until 21/2 years into the project, said members of the Indiana Supreme Court's Judicial Technology and Automation Committee, which is in charge of the project.

"We very much hoped that by this point in time we would have at least an initial version of the case management system up and running," said Indiana Supreme Court Justice Frank Sullivan, who heads the committee. "It is disappointing that we do not. We're working very hard to try to get there."

The breakdown surfaced in December, as Marion County officials tested a piece of software designed for Indiana civil courts. They found it lacked a critical element -- the ability to keep tabs on court fines and costs. * * *

For its Indiana contract, Computer Associates used a software package the company had developed for five criminal courts in Florida. Programmers tried to adapt it to Indiana's web of courts, many of which follow different business practices. "It was difficult for them to get their arms around the way business is done in Indiana," said Court of Appeals Judge Paul Mathias, a member of the Supreme Court automation committee, which also oversees other technology projects.

Like those in Indiana, programs to computerize courts in several states including Arizona, Missouri and Massachusetts have faltered because of software problems, budget cuts or other troubles.

Members of the automation committee, which includes Supreme Court justices and trial court officials, have backed away from a timeline for launch, which originally was six years.

They expect some answers in the next six months -- the "time out" that project managers have taken for some soul-searching. "This is a very comprehensive reassessment, but it is not starting over," Mathias said.

Meanwhile, the state has stopped paying Computer Associates. The company could lose the Indiana job, officials said, although it has offered to build a whole new software system at its own expense.

Expenses don't stop

In the meantime, the state continues to pay software licensing and other fees to the state's information technology department. That's totaled about $319,000 since 2003.

Crowe Chizek and Co. LLC, a consultant paid $271,000 by the state to assist with the new courts system, will take on a larger management role. The shift likely means that firm will get a higher fee. Crowe Chizek also has collected about $340,000 for helping Marion County courts revamp their work structure in advance of the new system.

With the halt of the project, some have lost jobs. Last month, the automation committee laid off seven of its 19 employees who worked on the case management system. Their duties would have included installing the software for counties and training court workers.

The project's former manager, Kurt Snyder, was directed to other duties within the committee.

Ironically, Snyder is featured in the March issue of Government Technology. The headline: "Kurt Snyder, Indiana Supreme Court -- One of Government Technology's 25 'Doers Dreamers and Drivers'." Some quotes from that story:
Kurt Snyder started with a clean slate when he took over IT operations for the Indiana Supreme Court in 2000. That's because Indiana's judicial branch was in the Dark Ages when it came to technology.

Now, thanks to Snyder, judges statewide have Internet and e-mail access, free computer training should they need it, and a modern case management system. And all judicial employees have access to an online legal research system.

[See also Richmond attorney E. Thomas Kemp's prescient commentary Sunday based on Snyder's award and the court project, in his blog, Kemplog.]

More from the Star story:

The state committee overseeing the project has turned to the woman who started to clean up the scandal-plagued Indiana Bureau of Motor Vehicles, Mary DePrez, to salvage the courts project. * * * Sullivan tapped DePrez, who once worked for his wife at the state's Family and Social Services Administration.

DePrez, a former trial court judge, is no stranger to broken government projects. Last year, she stepped into the top job at the Bureau of Motor Vehicles, where an identity-fraud ring led to guilty pleas from four ex-employees accused of helping illegal immigrants get licenses.

DePrez was out of the job by January, when Republican leadership took over at the Statehouse.

"Because her experience fits so snugly with the vision of our project, we considered ourselves lucky to get her," said Sullivan, who first pitched the case management system in 2001.

Apparently the committee made no effort to advertise for this position. The only position posted on the Judicial Technology and Automation Committee webpage is that of External Relations Liaison - and it was posted in May of 2004.

Sidebars to today's Star story give the names and salaries of the court employees working on the case management system, the committee members (all judges), and this estimate of expenses so far:

Here is an estimate for the amount spent so far, based on figures supplied by the Judicial Technology and Automation Committee:
• Payments to the state Department of Information Technology for licensing and other fees: $319,357
• Daniel Associates Inc.: $562,660
• Deb Arnett, a former clerk of court, for consulting work: $42,800
• Judge John Kellam, a senior judge and part-time Supreme Court employee who has been a "subject matter expert" on the project: $21,614
• Crowe Chizek and Co. LLC, consulting firm: $271,011
• Computer Associates International Inc., software developer: $6.3 million
Total: $7,517,442

Posted by Marcia Oddi on Tuesday, March 08, 2005
Posted to Indiana Courts

Monday, March 07, 2005

Law - Yet another U.S. Supreme Court sentencing ruling

As reported here (and in subsequent entries) today in the Sentencing Law Blog:

As if the post-Blakely, post-Booker sentencing seas were not choppy enough, today the Supreme Court muddied the waters some more by finally issuing its opinion in Shepard v. United States, No. 03-9168, which concerns a judge's authority to find certain prior conviction facts.

Posted by Marcia Oddi on Monday, March 07, 2005
Posted to General Law Related

Ind. Decisions - Court of Appeals posts one today; Tax Court posts one

Kenneth R. Shepherd v. Raymond D. Truex, et al (3/7/05 IndCtApp) [Torts]
Bailey, Judge

* * * Shepherd raises two issues, which we consolidate and restate as whether the trial court erred by granting judgment on the pleadings to Appellees because the allegations in the complaint, when taken as true, support an independent action for fraud upon the court, pursuant to Indiana Trial Rule 60(B), and a cause of action for attorney deceit, pursuant to Indiana Code Section 33-21-1-8. * * *

Here, Shepherd alleges in the complaint at issue that Appellees committed fraud and consented to deceit and collusion, for which they are not immune from liability, by knowingly preparing and submitting the false affidavits to the trial court. However, these allegations, even when taken as true, do not demonstrate that Appellees personally made a false representation with the intent to deceive and for the purpose of inducing Shepherd to act upon such representation, nor do they show that Shepherd, in fact, relied upon such representation to his injury or damage. To the contrary, pursuant to the complaint allegations, Shepherd never relied upon the averments made in the affidavits, i.e., the purported false representations. Rather, throughout his prosecution of the original lawsuit against Truex, Shepherd consistently and repeatedly maintained that the affidavits were fraudulent and that the information contained therein was false. As such, the trial court did not err by concluding that Shepherd’s complaint for attorney deceit failed to state a claim for relief. See, e.g., Anderson, 399 N.E.2d at 403-04.

For the foregoing reasons, we affirm the trial court’s grant of judgment on the pleadings. Affirmed.
FRIEDLANDER, J., and DARDEN, J. concur.

Chadd Barney v. Indiana Dept. of State Revenue (3/4/05 IndTaxCt) [Controlled substance excise tax]
Fisher, J.
Chadd Barney (Barney) appeals the final determination of the Indiana Department of State Revenue (Department) assessing him with controlled substance excise tax (CSET). The issues for the Court to decide are: (1) whether the exclusionary rule bars the use of Barney’s admissions in a tax assessment proceeding; (2) whether those admissions are sufficient evidence that Barney possessed the marijuana upon which the CSET assessment is based; and (3) whether the Department properly allowed for the weight of the marijuana’s packaging when calculating the assessment. * * *

Conclusion. For the aforementioned reasons, the Court AFFIRMS the Department’s final determination assessing Barney with CSET.

Posted by Marcia Oddi on Monday, March 07, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts one today

USA v. KEMPF, JOHN D. (WD Wis.) [4 pp.]

Before BAUER, EASTERBROOK, and WOOD, Circuit Judges.
BAUER, Circuit Judge. John Kempf was indicted by a federal grand jury on one count of unlawful possession of a sawed-off shotgun. After pleading not guilty, Kempf filed a motion to suppress evidence that was seized from his room at a boarding house. The motion was denied by the district court. He then pleaded guilty to the indictment, reserving his right to appeal the suppression issue. Since exigent circumstances justified the initial warrantless entry into Kempf’s room, we affirm.

Posted by Marcia Oddi on Monday, March 07, 2005
Posted to Ind. (7th Cir.) Decisions

Environment - Indiana sues EPA over pollution designations

"State sues EPA over pollution designations: Indiana Attorney General wants 16 counties dropped from list of those violating limits on microscopic air pollutants" is the headline to a story by Tammy Webber posted this afternoon on the Indianapolis Star website. Some quotes:

Indiana Attorney General Steve Carter today filed a lawsuit against the U.S. Environmental Protection Agency, asking that it drop 16 counties from a list of those violating limits on microscopic air pollutants.

In December, the EPA said air in 14 counties and portions of five others violate the new annual federal standard for fine particles. Those particles -- soot, dust and liquid droplets -- are so tiny, they can lodge deep in the lungs and cause breathing and heart problems similar to those faced by people who live with a smoker, research has shown. They are especially dangerous for children, the elderly and people with heart and lung problems.

Carter said new data provided to the EPA by the Indiana Department of Environmental Management show that all but three of those counties now meet the standards. Only Clark, Dubois and Marion County fail to meet the standard, Carter said.

"We don't want (residents) to have the impression their air is unhealthy," state environmental Commissioner Tom Easterly said. And labeling counties as violating the standard will hurt economic development.

State environmental officials said the EPA has agreed to look at the new data as it decides whether to reclassify the counties, but today was the deadline for filing a lawsuit.

[Update 3/8/05] Here is the updated story as it appears in today's Star.

Posted by Marcia Oddi on Monday, March 07, 2005
Posted to Environment | Indiana economic development

Ind. Law - More on "Lawyers' groups oppose judicial proposal"

Updating the Saturday ILB entry, "Lawyers' groups oppose judicial proposal," I've been able to obtain a copy of the Senate rollcall vote on SJR 1, the proposal to make major changes to the Indiana Constitution regarding the way appellate judges are selected and retained in Indiana.

You may wish to compare the rollcall with the lists of members of the Indiana Senate: Democrats; Republicans.

Posted by Marcia Oddi on Monday, March 07, 2005
Posted to Indiana Courts | Indiana Law

Sunday, March 06, 2005

Ind. Decisions - Many turns in anticipated retrial of former Indiana State Trooper David Camm

Last August the Indiana Court of Appeals reversed David Camm's three convictions for murder. Part of the opinion, as set out in this August 10, 2004 ILB entry (2nd case in list), sttaed:

We need not address any more issues in this case in detail. However, we do trust that some of the claimed instances of prosecutorial misconduct were unintentional and will not be repeated in any retrial, such as (1) questioning the defense blood spatter expert as to why his opinion conflicted with five other experts, when only two experts had testified for the State; (2) asking Camm why he did not think domestic violence was "a big deal" when there was no evidence that Camm had ever battered Kim; and (3) representing that a certain witness would be called later and could be questioned directly by defense counsel, then failing in fact to call that witness and protesting when defense counsel sought to do so.

Conclusion. Camm was unfairly prejudiced by the introduction of extensive evidence and argument regarding his poor character, where the evidence regarding his philandering was not reasonably related to any proper purpose under Indiana Evidence Rule 404(b), including proof of motive. We reverse his three convictions for murder. Reversed.
CRONE, J., and BAKER, J., concur.

The Indiana Supeme Court denied transfer. The Nov. 15th Louisville Courier Journal reported:
Floyd County, Ind., Prosecutor Keith Henderson announced this afternoon that he planned to re-file charges against former state trooper David Camm in the September 2000 murders of his wife and two children.
The CBS show, 48-Hours, featured the case on January 22nd.

The Louisville Courier Journal reports today "Ex-con arrested in Camm slayings: Former trooper's future uncertain." Some quotes from the story by Grace Schneiderand Ben Zion Hershberg:

The triple-murder case against former Indiana State Trooper David Camm took a dramatic turn yesterday when police said a second man had been charged with killing Camm's wife and two children.

But it was still unclear how the arrest would affect the case against Camm, who is facing a retrial later this year in the September 2000 slayings.

At a press conference yesterday, Floyd County Prosecutor Keith Henderson said Indiana State Police had arrested and charged Charles D. Boney, 35, of Louisville -- a convicted felon -- in the murders.

Investigators said earlier in the week that a gray sweat shirt, found at the murder scene in the garage of the Camm home in Georgetown, Ind., had been linked to Boney through DNA evidence.

Henderson had said last Monday that there was no evidence Boney was involved in the murders, though he added that investigators continued to interview him as a witness.

During the week, however, investigators checked unidentified fingerprints found at the murder scene against Boney's prints.

Henderson would only say yesterday that additional scientific evidence, delivered Friday morning, led authorities to question Boney again.

Shortly before midnight Friday, they charged him with three counts of murder, possession of a firearm by a felony offender and being a habitual felon.

Boney will have an initial hearing in Floyd Circuit Court tomorrow morning or Tuesday. That's when authorities are expected to release more details about their case against him. * * *

Camm's lawyer, Katharine Liell of Bloomington, said she was pleased by the arrest because the defense has pushed repeatedly for more analysis of the fingerprints and DNA material.

Liell, Henderson and Lockhart are prohibited from discussing the case because of a gag order issued by Warrick Superior Court Judge Robert Aylsworth. Each tried yesterday to focus comments specifically on Boney's arrest and to avoid discussing Camm and his pending trial.

Liell did say that the defense team stands ready to provide assistance in uncovering information about Boney.

Camm, 40, has spent four years behind bars and was convicted in March 2002 of fatally shooting his wife, Kimberly, 36, and two children -- Bradley, 7, and Jill, 5. The murder weapon has never been found.

He was sentenced to 195 years in prison. Last August, however, the Indiana Court of Appeals overturned the conviction on grounds that testimony from a dozen women that Camm propositioned or had affairs with them unfairly biased the jury.

The state Supreme Court declined to review that decision, and Henderson refiled the murder charges against Camm in November. The case was moved to Warrick County because of the publicity it had generated locally.

In January Aylsworth set a $20,000 cash bond for Camm, which was posted by Lockhart, with whom Camm since has been living.

The Camm family has repeatedly maintained his innocence, and they've spent thousands of dollars pushing appeals to free him and clear his name.

Private investigator. The family recently enlisted private investigator Gary Dunn to examine the case. Lockhart said yesterday, with Dunn at his side, that the investigator's work has been "second to none" in identifying evidence that would have resulted in Boney's arrest long ago.

"The information off the sweat shirt was available long ago," Lockhart said.

Police and prosecutors have said, however, that they still believe Camm is guilty of the murders -- and nothing was said yesterday to indicate that they've changed their minds.

[Update 3/7/05] For more, read today's story in the Louisville Courier Journal.

Posted by Marcia Oddi on Sunday, March 06, 2005
Posted to Ind. App.Ct. Decisions

Saturday, March 05, 2005

Environment - Several national stories today

A lengthy front-page story in the NY Times today is headlined "Efforts to Hide Sensitive Data Pit 9/11 Concerns Against Safety." Some quotes:

They are just pieces of cardboard, and they cover less than a square foot on the side of railroad tank car. But behind them lies a post-9/11 competition between public safety and national security.

For decades, emergency-response teams approaching train wrecks have peered at the signs through binoculars to see what dangerous chemicals might be leaking. But federal officials will soon decide on a proposal to remove the placards from all tank cars. Their fear is that terrorists could use them to lock in on targets for highly toxic attacks.

The idea has sparked an outcry from firefighters and rail workers, who say removing the signs could endanger their lives. They say federal officials seem more focused on guarding against a terrorist attack than on the daily threat of accidents. * * *

The dispute illustrates a growing push to mask sensitive data about the nation's industrial base from the prying eyes of potential terrorists. In the tug of war over tank cars and other industrial information, critics question whether the move toward secrecy is overwhelming safety concerns and even chilling debates over how to eliminate the vulnerabilities.

People who live near chemical and nuclear plants, dams and oil and gas pipelines complain that it has become harder to find out about disaster plans and environmental hazards, and some have sued for more information. Engineering reports have been stripped from government Web sites, and several agencies are creating new controls on sensitive information that go far beyond the wide-ranging classification system built in the cold war.

A number of stories today report on President Bush's nomination of Stephen L. Johnson as EPA administrator. The Times story includes these quotes:

It is rare for an agency official to rise to the top, and Mr. Johnson was praised by an array of industry representatives, state officials and environmentalists as someone who was open to argument and who understood the scientific basis for decisions.

Mr. Johnson is expected to be easily confirmed by the Senate. But even supporters who had worked with him at the agency questioned how much influence or independence he would have in a job that proved difficult even for a high-profile former Republican governor, Christie Whitman, Mr. Bush's first appointee to head the agency. In a recent book, Mrs. Whitman made it clear that she was under constant pressure from the White House on issues like pollution controls on utilities.

"It would be hard to imagine a better choice coming from this administration," said Bradley Campbell, the commissioner of the New Jersey Department of Environmental Protection and a former colleague of Mr. Johnson at the environmental agency during the Clinton administration.

"But," Mr. Campbell added, "I expect that he'll be on a very short leash, with the real decisions being made at the Office of Management and Budget and the White House."

Mr. Johnson, a biologist and pathologist versed in both science and in the culture of the 35-year-old agency, was selected over better-known but more ideological candidates like James L. Connaughton, the chairman of the White House Council on Environmental Quality.

Mr. Johnson takes command of the agency at a ticklish moment for several of the administration's environmental initiatives.

The Washington Post writes:
Johnson's agency is facing tough budget challenges and sustained accusations that its scientific mission has been undercut by political pressures. Former EPA administrator Christine Todd Whitman cited such interference in her decision to quit, and a recent inspector general's report suggested that political operatives stampeded agency scientists into a plan for regulating mercury pollution that is biased toward industry interests. * * *

In a break from Washington's usual climate of hostility over environmental issues, Johnson's appointment drew praise from groups as diverse as CropLife America, which represents the pesticide industry; the Electric Reliability Coordinating Council, which represents utilities; and environmental advocacy groups such as the National Environmental Trust and the League of Conservation Voters.

Sen. James M. Jeffords (I-Vt.) said he hopes the appointment "will help repair and restore the credibility of the Bush administration's environmental record with the American public, Congress and the world." Sen. James M. Inhofe (R-Okla.), chairman of the Senate committee debating Clear Skies, who has clashed with Jeffords, also welcomed the appointment and said he looks forward to working with Johnson. Both senators, along with Sen. Thomas R. Carper (D-Del.), have been in tough negotiations over the Bush proposal.

Johnson is likely to find himself in this crossfire immediately. Carper said he congratulated Johnson on his nomination yesterday -- and demanded to know why the EPA had been slow to provide data that would allow comparisons between the Bush plan and alternatives. Carper said he does not think agreement on the initiative will be possible by Wednesday, when the committee, after numerous postponements, hopes to take action on the bill. * * *

Many Washington insiders had expected James L. Connaughton, chairman of the White House Council on Environmental Quality, to take the job, and Johnson's appointment came as a surprise. But Frank O'Donnell, president of the environmental group Clean Air Watch, predicted that Connaughton might still decide policy.

"The real story is that on major issues, the decisions are going to be made directly by the White House," O'Donnell said. Johnson's appointment "is another sign that the EPA is, in effect, being downgraded to put a career guy there instead of a former governor," he said.

Posted by Marcia Oddi on Saturday, March 05, 2005
Posted to Environment

Ind. Law - More on Bosma's options in the event of a walkout

I've received another suggestion re how Speaker Bosma might handle another walkout of House Democrats -- one that, so far as I know, has never been tried. I've appended it to the end of the Wednesday, March 2 entry that discussed this question: "The quorum count required in the Indiana House is set by rule, and the house is not helpless in the face of a walkout. Why did Bosma act like it was out of his hands?" Access it here.

Posted by Marcia Oddi on Saturday, March 05, 2005
Posted to Indiana Law

Ind. Gov't. - Daniels to appoint woman to head state health department

At least, that is what it says today two-thirds of the way through this story in today's Madison Courier:

Ralph Armand, administrator of the Jefferson County Health Department, asked when a new state health commissioner will be appointed because he’s “beginning to see a slowdown in communication between the two departments.” Daniels said that next week he will announce the appointment of a female doctor to head the state agency.

Posted by Marcia Oddi on Saturday, March 05, 2005
Posted to Indiana Government

Ind. Courts - Federal Judge John D. Tinder featured in "Underneath Their Robes"

Not to be missed! Federal Judge John D. Tinder is featured in Underneath Their Robes. Access the feature directly here. Judge Tinder gives such lengthy and informative responses that only the answers to the first 10 questions in the interview were posted yesterday, the rest is to follow "next week."

Posted by Marcia Oddi on Saturday, March 05, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Lawyers' groups oppose judicial proposal

Prohibiting same-sex marriage is not the only proposal to amend the Indiana Constitution being seriously considered during this session. Kevin Corcoran of the Indianapolis Star writes today about SJR 1, which passed the Senate March 1 on a roll call vote of 33 to 16. Some quotes from the story:

The leaders of state and local bar associations are opposing a proposed constitutional change that would give the Indiana Senate, now dominated by Republicans, power to decide who serves on the state's appellate courts. The bar association officials said Friday they oppose the proposal because it would eliminate the public's right to vote to retain those jurists.

The Indiana Senate approved the change in Senate Joint Resolution 1 on Tuesday by a 33-16 vote, sending the measure to the House for further debate. A separately elected General Assembly must approve the referendum legislation in 2007 or 2008 before it could appear on a general election ballot.

The legislation, proposed by state Sen. R. Michael Young, R-Indianapolis, would create a seven-member commission to nominate judges to the Indiana Tax Court, Indiana Court of Appeals and Indiana Supreme Court. The governor would appoint each judge from among three nominees, subject to confirmation by a majority of the Senate.

After 10 years on the bench, judges would come before the Senate for retention votes. A judge could be removed from the bench by a vote of 30 or more of the 50 senators. Republicans now control the Senate, 33-17.

The proposed change also would create a procedure for impeaching judges. The legislation would let judges already on the bench complete their terms and subject them to the new confirmation requirement if they want to stay on. Currently, appellate judges are subject to "yes/no" retention votes at least every 10 years after their initial appointments by the governor. * * *

During debate Tuesday, Young said he had proposed the measure because the current system of appointing and retaining appellate judges doesn't work. No appellate judge has been removed from the bench by voters since the system began in 1972, Young said. And few constituents know enough about the judges' rulings to make informed decisions at the ballot box, Young told senators.

My thoughts. First, it is unlikely that any appellate judge will fail a retention vote, or even come close, unless the judge has done something to get the attention (read "incur the wrath") of the voters. After all, they were appointed in the first place via a rigorous selection process.
  • Examples of public conduct that could get the voters' and the media's attention: Bribery. Drunken driving. Spousal abuse. Abuse of one's position.
  • Or the judge's opinions may endanger his retention. I can think of few issues that might cause this result but, unfortunately, writing an opinion in favor of same-sex marriage in Indiana might be one. A "Committee to Unseat Judge X" might be formed in such a case when the judge came up for retention. Look at Massachusetts and the outcry against their "unelected judges."
  • Or a bar association might become unhappy enough with, for instance, the quality of a specific judge's opinions, that they would come out against his retention. This seems unlikely at the appellate level. I also have the impression that the judiciary polices itself to prevent such embarrassments.
Second, I do agree with Senator Young that "few constituents know enough about the judges' rulings to make informed decisions at the ballot box." But that is because the bar associations, the media, and groups like the League of Women Voters have fallen down on their job. I have no doubt, as I said above, that if a judge's opinions were to trigger the wrath of an interest group, the voters would get plenty of information about it. But if a judge is simply doing her job - either admirably or adequately - as apparently appellate judges have been doing since they became subject to the retention process, there will be little information or publicity about them.

In last November's election, Judge John T. Sharpnack was up for another 10-year term. In the week before the election, the hits to the Indiana Law Blog tripled. Interested to find out why, I looked at my site's statistics. Almost all the extra hits were the result of search engine inquiries for various variations of the name "Judge Sharpnack"! My interpretation: These were voters who wanted to find out more about the Judge so that they could cast intelligent votes. The ILB would be picked up in their searches because I include the names of all the judges participating in an opinion. (BTW, I can't see the source of a search, only the phrase used that triggered a link from Yahoo, Google, etc. to the ILB.)

As some of you may recall, last month I established a second site, IndianaDecisions.com. Right now it contains the remains of the now outdated ILB. My plan is to use that site to post Indiana appellate decisions in pdf format, something that I tried, and failed, to get done at an official level years ago. The opinions will be accompanied by a subject matter index -- as I have been categorizing decisions all along by terms such as "Torts", "Contracts," etc. They will also be accessible in a number of other ways, including by judge. This means that the next time Judge Sharpnack is up for retention, one will find a linked list of all the opinions he has written, or joined, or dissented from, in chronological order, along with their subject matter and access to their summaries. At least, that is my plan, as there is -- as of now -- no other means of ready, public access to this information.

Posted by Marcia Oddi on Saturday, March 05, 2005
Posted to Indiana Courts | Indiana Law

Ind. Law - Where in the law does it say that?

An AP story published today in the Louisville Courier Journal is headlined: "Partisan tension may block work: By law, state budget must be approved."

Hoping to learn "where in the law does it say that," I quickly scanned the story. Here it is. Paragraph six begins "The only thing lawmakers are required by law to do this session is pass a two-year budget." But it sheds no further light on the matter.

Regular readers may recall these recent ILB entries:

  • "Where does the Indiana Constitution say that?" from Feb. 23rd.

  • "More on 'Where does the Indiana Constitution say that?'" from Feb. 25th (was that really only a week ago?)

  • "'That’s really our only constitutional duty,' Bauer said" from Wed., March 2nd.

Posted by Marcia Oddi on Saturday, March 05, 2005
Posted to Indiana Law

Ind. Law - Board questions need for voter ID

The Fort Wayne Journal Gazette has a story today by Bennjamin Lanka that begins:

The Allen County Election Board on Friday recommended the Indiana General Assembly wait a year before voting on requiring photo identification at polling places so the issue can be further studied. The board members – two Republicans and one Democrat – determined the proposed law left too many questions unanswered and there was no need to rush into a decision.

Andrew Downs, Democratic board member, objected to requiring identifications partly because it did not affect absentee voters.

“Most of the fraud that happens in the state comes from absentees,” he said. “I’m opposed to the legislation because it does not address the problem it says it’s addressing.”

Pam Finlayson, county elections director, said requiring absentees to provide identification would be difficult for voters and almost impossible to administer at the county level. * * *

The board plans to send letters to House members involved with the identification bill, as well as area legislators, Downs said.

The letter will recommend the state create a study committee to investigate the issue over the summer and bring it back up as legislation next year.

Downs said the letter should be sent out next week.

Finlayson said if the House moves forward with the bill, she had two concerns about the Senate bill that were both addressed, she said, by the House bill that died.

She said the first concern was that all voters be notified of the new requirement by the secretary of state.

Her second concern, she said, was with the cost of getting an identification, which she agreed could be similar to a poll tax.

She said she supported the state allowing people to get identification for free if they said they were using it only for voting. She admitted this could lead to some people abusing the system but said it was the only way to ensure no one was disenfranchised.

Posted by Marcia Oddi on Saturday, March 05, 2005
Posted to Indiana Law

Ind. Decisions - Doctor must pay in bullying case

"Doctor must pay in bullying case: Heart surgeon owes a former co-worker $325,000 to cover lost wages, jury says" is the headline to this story today by Eric Martin in the Indianapolis Star. Some quotes:

In a potentially landmark case involving workplace bullying, a jury in Marion Superior Court on Friday ordered St. Francis Hospital's chief heart surgeon, Dr. Daniel H. Raess, to pay a former hospital employee $325,000.

The award to Joseph E. Doescher, 44, stemmed from a Nov. 2, 2001, confrontation between the two men during which Raess was accused of screaming and lunging toward Doescher.

Doescher worked at the hospital as a perfusionist, operating equipment that oxygenates the blood during surgery.

The jury declined to award additional punitive damages against Raess in what one expert said was the first workplace bullying case in history.

In his closing statement, Doescher's attorney Kevin Betz of Betz & Associates, Indianapolis, asked the jury to award his client $324,000 in lost wages and suggested the jury award a greater sum for pain and suffering. * * *

Attorney Scott Bunnell of Hunt Suedhoff Kalamaros in Fort Wayne, one of two firms retained by Raess, said his client would decide next week whether to take further action in the case. As he entered the elevator to leave the City-County Building, Raess turned and said, "We plan a vigorous appeal."

The award represents more than 11/2 year's salary for Raess, who in testimony said he expects to earn $210,000 in 2005 from St. Francis, a Roman Catholic nonprofit hospital in Beech Grove.

This is the first time a workplace bullying case has been heard in the United States, according to Gary Namie, director of the Workplace Bullying & Trauma Institute in Bellingham, Wash. Namie testified on behalf of Doescher.

Posted by Marcia Oddi on Saturday, March 05, 2005
Posted to Ind. Trial Ct. Decisions

Ind. Law - Death Row inmate Darnell Williams' life was saved by a multitude of factors.

"Death Row inmate Darnell Williams' life was saved by a multitude of factors" is the lead to this opinion piece in today's Indianapolis Star by editorial writer James Patterson. More quotes from the beginning of the piece:

Among the critical elements that led to his winning a reprieve this past summer were contributions by students a the Northwestern University Law School, Williams' lawyers and editorials published by The Star.

Compliments aside, the important thing is that Indiana didn't execute a man who may have been innocent.

Williams was facing execution for his role in the murders of a Gary couple when former Gov. Joseph Kernan commuted his sentence to life without parole five days before he was to be put to death this past summer.

"Countdown to an Execution" chronicles the frantic attempts by Juliet Yackel, Williams' chief attorney, to save his life before the scheduled July 9, 2004, execution. The documentary, previewed at the Indiana University Law School on Monday, premieres at 8 p.m. [on Wed.] March 16 on "American Justice" on A&E.

More from the end of the piece:
The courts, which systematically rebuffed Williams' appeals at least 13 times, were of no help. His only hope was to manage an unlikely reprieve from Kernan, who took over when O'Bannon died. On June 29, the Indiana Parole Board voted 5-0 to recommend clemency. Five days later, Kernan obliged.

"But for (The Star) putting the injustices in this case squarely in the public eye, repeatedly, Darnell Williams would have been quietly executed in 2003, with a typical statement from the governor about how many courts had reviewed his conviction and sentence and how they had determined that DNA testing would be inconsequential," Sites said.

A Hoosier governor hadn't granted clemency in a death penalty case since 1956. Before Williams, the parole board had never done it.

Posted by Marcia Oddi on Saturday, March 05, 2005
Posted to Indiana Law

Friday, March 04, 2005

Ind. Decisions - Update on "Must read" series on tax fraud case before Judge Young

A Feb. 17 ILB entry quoted from Maureen Hayden's stories in the Evansville Courier& Press about a bargain struck by the U.S. Attorney with an accountant charged with embezzling $370,000 in tax payments from Evansville business owner Dennis Owens. The defendant-accountant would not have to repay any of the money, but Owens, the businessman/victim, would remain liable to the IRS. More today:

A federal judge decided Thursday that nearly 3½ years in prison wasn't enough time for an accountant who admitted he stole $390,000 from an Evansville businessman. Saying he was obligated to protect the public from what he called a "conniving" thief, U.S. District Judge Richard Young sentenced the defendant, Michael G. Titzer, 53, to a term of 13½ years in a federal prison, on charges of tax and bank fraud.

A federal prosecutor's deal would have allowed Titzer to serve 41 months in prison and keep a $170,000 house paid for with stolen money. The sentence departed dramatically from what U.S. Attorney Susan Brooks' had recommended for Titzer, who admitted in court that he'd stolen almost $790,000 from family, friends and a former employer over the last two decades, while working as an accountant. Even Titzer conceded the prosecutor's recommended sentence wasn't tough enough. * * *

Titzer appeared surprised by the sentence. Moments earlier he promised never to commit another crime and had heard Assistant U.S. Attorney Todd Shellenbarger make a case for sending him to prison for only 41 months, a term that falls within the federal sentencing guidelines. * * *

The money stolen by Titzer was supposed to pay the federal employee withholding taxes from Owens' road construction business, TD&O. Since it never got paid, the Internal Revenue Service told Owens he's still liable for it. The IRS is now demanding Owens pay the $370,000 again, plus the penalties, fines and interest that have been accruing. At last count, it totalled more than $1 million. Owens wasn't in court Thursday for the sentencing, but his attorney David Robinson was. "Mr. Owens couldn't be here today," Robinson told Young. "He's out working to earn money to pay his taxes."

Posted by Marcia Oddi on Friday, March 04, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals posts two today

George F. Sanders v. State of Indiana (3/4/05 IndCtApp) [Criminal Law & Procedure]
Robb, Judge

A jury found George Sanders guilty of two counts of child molesting, one count as a Class A felony and one count as a Class C felony. The trial court merged the convictions and sentenced Sanders to thirty years in the Indiana Department of Correction. Sanders now appeals. We reverse.

Issues. Sanders raises two issues for our review, which we restate as the following: [1] Whether the trial court properly admitted into evidence a letter written by Sanders to the trial court; and [2] Whether the trial court properly excluded evidence proffered by Sanders of the alleged victim’s mental history. * * *

Conclusion. Although we hold that the trial court did not abuse its discretion in excluding evidence of J.R.’s mental history, we reverse Sanders’s convictions because the trial court abused its discretion in admitting into evidence the redacted version of a letter written by Sanders to the trial court. Reversed.
RILEY, J., and CRONE, J., concur

Steven C. Fuerst v. Review Board and Grand Victoria Casino (3/4/05 IndCtApp) [Workers' Compensation]
Darden, Judge
Steven C. Fuerst appeals the decision by the Review Board of the Indiana Department of Workforce Development that denied his application for unemployment compensation benefits. We affirm. * * *

As indicated in FACTS, the evidence supported the findings that the relative positions of the three men, the repeated unusual hand movements, and the improper removal of cards from the table were facts which should have been observed by Fuerst, as the dealer, and which should have led him to take some investigatory action. Absent appropriate action by Fuerst on behalf of Grand Victoria, the players won money that they would not have won otherwise. Further, the evidence indicated that the dealer was required to count the cards after every fifth hand and that Fuerst failed to observe this rule that existed for the protection of Grand Victoria. The evidence supports the findings of fact, and the findings of fact support the reasonable conclusion that Fuerst breached his duty to Grand Victoria. Moreover, we find the Board's conclusion that the discharge of Fuerst was for just cause to be a correct interpretation and application of the law. See Perfection Bakeries, 783 N.E.2d at 739. Affirmed.
MAY, J., and BARNES, J., concur.

Posted by Marcia Oddi on Friday, March 04, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending March 4, 2005

Here is the Indiana Supreme Court's transfer list for the week ending March 4, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column. No cases were granted transfer.

Posted by Marcia Oddi on Friday, March 04, 2005
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit posts two today

USA v. Martin, Leland D. (SD Ind., Sarah Evans Barker, Judge [4 pp.]

Before FLAUM, Chief Judge, and EASTERBROOK and WOOD, Circuit Judges.
EASTERBROOK, Circuit Judge. State and federal agents got wind of the possibility that Leland Martin had acquired guns and dynamite in preparation for robbing a bank. They arrested him on a warrant for an unrelated offense; once the agents appeared with warrant in hand, both Martin and his wife consented to a search of their home, where the agents found a gun and ammunition. * * * Martin has no complaint about the sentence. But he does contend that the judge should have suppressed the damning evidence. Consents are invalid, he insists, because the officers should not have been in his home to request them. Although the warrant was valid when issued, Martin says, it was stale when executed. * * *

Probable cause for a warrant is not necessarily enough. After all, the fourth amendment requires searches and seizures to be “reasonable.” Passage of time could affect reasonableness, especially for search warrants that authorize the police to hunt for items that are portable (or consumable). An arrest might be thought unreasonable after the statute of limitations for the offense has lapsed. * * * Delay in executing an arrest warrant also increases the likelihood that the suspect has turned himself in or been arrested on another charge during the interim. A misdemeanor charge might be cleared, and the penalty exacted, before the warrant had been executed, and such an arrest could be thought unreasonable. Police guarded against that risk, however, by checking to see whether the charge remained unresolved. It was, so Martin was still a fugitive at the time of his arrest. See United States v. Towne, 870 F.2d 880, 884 (1st Cir. 1989). The warrant was constitutionally valid and its execution reasonable, so the consents were untainted. AFFIRMED

Torry, Nancy E. v. Northrop Grumman (ND Ill.) [6 pp.]

Before POSNER, MANION, and WOOD, Circuit Judges.
POSNER, Circuit Judge. * * * Despite wasting our time with a bad argument, Northrop Grumman is entitled to prevail on this appeal. The plaintiff’s claim of discrimination has no merit. She was laid off in a RIF, and she does not question the bona fides of the RIF. Her argument is that she should have been allowed to bump junior employees and thus retain her job. She relies heavily on a handbook distributed to all of the defendant’s employees that creates bumping rights without need to apply for the job one wants to be bumped into. But the handbook contains an express disclaimer of the applicability of these bumping rights to hourly workers at the particular plant at which she worked. She made no application—which also scotches her claim that a younger white worker was given a discriminatory preference over her by being offered another job when he was bumped; he had applied for the job. AFFIRMED.

Posted by Marcia Oddi on Friday, March 04, 2005
Posted to Ind. (7th Cir.) Decisions

Law - Not just Indiana: Texas tries to ban municipalities from providing internet access

"Wireless networks don't click with some: Telecom bill would ban free Internet access like that in model East End program" was the headline to a story yesterday in the Houston Chronicle. Some quotes:

Rep. Phil King, R-Weatherford, has filed a massive telecommunications bill in Austin this session that, in part, bans Texas cities from participating in wireless information networks. * * *

SBC Communications, which has more DSL customers in the nation than any other provider, said cities should be allowed to offer wireless Internet access in public places, such as parks and libraries. But they should not directly compete with private enterprises by providing services to residents and businesses, said company spokesman Gene Acuña. * * *

Houston, which also is considering ideas such as putting Internet antennas on parking meters, is not alone in exploring wireless Internet. Philadelphia has said it will offer free, citywide access. Los Angeles and San Francisco also are studying how to do the same thing. In Texas, small towns such as Linden and Granbury have experimented with wireless networks, as have larger cities such as Austin and Corpus Christi.

The catalyst has been an explosion of innovations in technology — from antennas to modem-like devices — that allow personal computers to capture signals from the air. This has driven down costs.

Telecommunications companies have taken notice as cities, nonprofit organizations and startup companies have begun using these technologies to offer free or steeply reduced Internet access, said Bill Gurley, a Silicon Valley-based venture capitalist with Benchmark Capital who closely follows the issue.

Legislators in a dozen states, including Texas, have filed bills to remove competition for telecommunications companies, he said. Most are pending, but an Indiana effort failed, while a similar law in Pennsylvania passed, although it omitted Philadelphia because of that city's existing efforts.

Posted by Marcia Oddi on Friday, March 04, 2005
Posted to General Law Related

Environment - Stories today

The Gary Post-Tribune reports today: "Lowell farm abandons screen waste operation." Some quotes:

Nearly two weeks after Nathan Sanko was asked to account for the more than 140,000 tons of waste he is hauling from Chicago, he has voluntarily withdrawn his composting permit and has ceased all land applications on his farm fields near Lowell.

According to Bruce Palin, deputy assistant commissioner for the Indiana Department of Environmental Management, Sanko was applying both compost and so-called screen waste to two of his five farm fields.

Screen waste is the remnant of waste from Chicago’s Blue Bag recycling program after it has been sifted through screens.

In addition, Sanko voluntarily agreed to stop applying the screen waste to the other three fields, where he had been applying only the screen waste.

Sanko’s attorney, Daniel McInerny, said in a letter to IDEM, “These measures go beyond those requested by IDEM and reflect our good faith efforts to cooperate with IDEM in this matter.” * * *

Palin said Sanko will still be allowed to haul the waste from Chicago. He will likely dispose of it in local landfills, he said.

"Bush Picks Stephen Johnson to Head EPA: Acting Administrator Would Be First Career Employee to Lead the Agency" is the headline this morning on the Washington Post website. According to the story:
President Bush today nominated Stephen L. Johnson, the acting administrator of the Environmental Protection Agency, to take over the helm of the agency and promote his administration's goal of rewriting the nation's air pollution laws.

In a ceremony in the Roosevelt Room of the White House, Bush said that if Johnson is confirmed by the Senate, he would be the first career EPA employee and first professional scientist to head the agency. Johnson, 53, a native of Washington, D.C., has worked at the EPA for 24 years and previously served as assistant administrator of the Office of Prevention, Pesticides and Toxic Substances, among other posts.

Johnson "knows the EPA from the ground up and has a passion for its mission: to protect the health of our citizens and to guarantee the quality of our air, water and land for generations to come," Bush said. He called Johnson "an innovative problem-solver with good judgment and complete integrity" and said he would use his scientific background "to set clear, rational standards for environmental equality and to place sound, scientific analysis at the heart of all decisions."

Posted by Marcia Oddi on Friday, March 04, 2005
Posted to Environment

Ind. Law - Part II. What might the Senate (and/or the House) do about the "dead" bills?

Options in the House.

In House Committee. The committee could insert "related matters" into a Senate bill. House Rule 80 would apply:

Germane. No motion or proposition on a subject not germane to that under consideration shall be admitted under color of an amendment.
Speaker Bosma stated early in the session that he would be applying this rule more strictly than had been the case in the past.

The House Committee could "strip" the Senate bill and substitute different subject matter via a motion to "Strike everything after the enacting clause and insert in lieu thereof the following ...". This would require written consent of the Senate author and co-author and the House sponsor and co-sponsor.

On Second Reading. Either of the above actions also could be attempted on second reading. However, the "bill pending" rule might be brought into play at second reading. (I'm told this is not as much an issue in House committee.)

118. Substituting another bill. No bill may be amended by annexing to it or incorporating with it any other bill pending before the House.
Senate Responses to House amendments to Senate bill. After the House passes a Senate Bill with House changes, the bill returns to the Senate. The Senate may concur in the House revisions, or the bill may go to conference committee, where efforts are made to reach an accord. It is here that the Senate germaneness rule would come into play:
50. No motion to amend, committee action, concurrence or conference committee action which seeks under color of amendment to substitute or insert subject matter not germane to that of the bill or resolution under consideration shall be in order. However, this rule does not apply to House bills raising revenue and relating to other taxation matters.
We will talk about Conference Committee Reports in more detail later on in the session. Suffice it to say for now, this language would allow/require the Senate to refuse to concur with House changes to a Senate bill that are not "germane" to the bill as it passed the Senate.

Senate President Pro Tem Bob Garton reiterated in a press availability Wednesday that he has applied the germaneness rule strictly for over 20 years. However, he also said “we don’t vary on our germaneness rules for speakers, for governors, lt. governors.... we vary with the caucus. If the caucus tells me I am wrong.... and the caucus so far has, I think, backed me up on every single judgement call.”

“I represent the caucus in interpreting those standards ... to date the caucus has told me – and they can confirm – we want a strict interpretation of the constitution.”

Options in the Senate.

In Senate Committee.
The Senate Committee could insert "germane" matter into a House bill. Asked whether a Senate committee could hear daylight savings time and other bills, Senator Garton said Wednesday: “I have never made a germaneness call to block a vote. I never have and never intend to do so. And I will not use the germane rule for that purpose.”

So what does "germane" mean? As I understand it, it is not a strict test, but a flexible one.

Using the daylight savings time (DST) proposal as an example:

HB 1034, as introduced and as passed out of House committee, had one section. The bill simply repealed IC 1-1-8.1.

On second reading in the House, the bill was amended to add two new sections to to the bill, concerning Title 8 (highways) of the Indiana Code. The new provisions require the Indiana department of transportation to erect and maintain where appropriate signage indicating a change in the time zone line in each direction on a tollway and on the state highway system.

This addition apparently did not run afoul of the House's Rule 80 germaneness test -- provisions about highway signage could properly be added to a bill repealing daylight saving time because the additions simply expanded the concept of the original matter.

Now, in a Senate Committee, say there is a bill relating to an economic development matter. Say a Senator moves to insert the DST bill content, or part of it, into the economic development bill. Could it be successfully argued that the additions simply expanded the concept of the original economic development matter and so did not run afoul of Senate Rule 50 - which says in effect that no committee action shall be in order which seeks to insert subject matter (here time) not germane to the bill under consideration (here economic development)?

Quoting again from Senator Garton's statements Wednesday: [Re would he allow the Senate to hear DST and other bills?] "[A]s long as it is germane and as long the committee chair doesn’t object."

In General.

Unlike the U.S Congress, where precedents are recorded and codified, the application of House and Senate rules may vary by session, or by leader. In the end, if there is a controversy, it is the majority that prevails -- see, for example, Senate Rule 11 re appeal of a ruling of the chair.

The House and Senate, within the constraints of the Constitution, make their own rules and procedures. The Indiana Supreme Court has said time and again that it will not look beyond the Enrolled Act in a challenge to legislation -- it will not look at whether or not the General Assembly followed its own internal procedural rules, to do so, according to the Court's opinions, would be to violate the separation of powers.

On the other hand, unlike some, I do not equate the General Assembly's internal procedural rules regarding germaneness with the Indiana Constitution's requirement that an act "shall be confined to one subject and matter properly connected therewith." In my opinion, Art. 4, Sec. 19 is a substantive requirement. In applying this requirement, the Court needs only to examine the face of the Enrolled Act and decide whether it is limited to one subject.

In recent times, the Court has not followed this view; it has instead viewed Art. 4, Sec. 19 as an internal procedural limitation on the General Assembly, from which it will keep "hands off." The result has been "budget" bills which, as a result of last-minute compromises, may contain everything else various interests have been unsuccessful in getting passed through individual bills. The Governor, faced with signing such an amalgamation, may call for the line-item veto. But the answer, as I have posited before, is application by the Courts of the substantive requirements of the existing constitutional provision.

[Please do not hesitate to comment - and be sure to tell me if I can use your name.]

Posted by Marcia Oddi on Friday, March 04, 2005
Posted to Indiana Law

Thursday, March 03, 2005

Ind. Decisions - Tongue stud case makes the paper

Yesterday's Supreme Court decision in Brenna Guy v. State of Indiana (3/2/05 IndSCt) - access the ILB entry here - is the subject of a story this afternoon on the Indianapolis Star website. Headlined "Breath test stands despite tongue-stud," the story by Kevin Corcoran begins:

The stainless steel stud that pierced Brenna Guy's tongue during a drunken-driving stop in 2001 won't derail the criminal case against her, the Indiana Supreme Court has ruled.

Guy was wearing the mouth jewelry when an Indianapolis Police Department officer pulled her over suspecting she was drunk. She had been driving on the wrong side of the street in Downtown Indianapolis and had failed three field sobriety tests.

The officer noticed Guy was wearing the tongue stud, but didn't make her take it out before administering a blood-alcohol test.

Guy appealed, citing a state law and regulations that declare no "foreign substance" can be put in a person's mouth during the 20 minutes before a breath test is administered.

The Supreme Court ruled against Guy because she did not "put" the tongue stud in her mouth in the 20 minutes before the test. The rules were written to discourage people from putting things in their mouths -- such as chewing tobacco or cigarettes -- that could affect the outcome of an alcohol breath test.

Posted by Marcia Oddi on Thursday, March 03, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Part I. What might the Senate (and/or the House) do about the "dead" bills?

Today's papers have a lot of stories and editorials about Tuesday's activity, or lack thereof, in the Indiana House. The Evansville Courier& Press' Jennifer Whitson begins her story:

The day after 131 bills died because House Democrats walked out on the legislative session, Republican Gov. Mitch Daniels compared their actions to terrorists and Republicans made no effort to smooth over the rift.
Niki Kelly of the Fort Wayne Journal Gazette leads with:
Using terrorist buzzwords, Republican Gov. Mitch Daniels on Wednesday blasted House Democrats for bringing the session to a halt Tuesday with an “11th-hour car bombing” that resulted in a “casualty list” of 131 bills.
The story also reports:
More than 130 bills on the House calendar Tuesday died after not being voted on by a midnight deadline. Some of the measures included a financing plan for a new Indianapolis Colts stadium, a move to daylight-saving time and other GOP priorities.

Although the bills are dead, the ideas and concepts can be resurrected by adding them to other pieces of legislation. More than 300 bills are still alive after having passed the House and Senate before the meltdown.

It becomes tricky, though, when trying to amend language into Senate bills because Senate leadership has strict germaneness rules, which means new language has to relate closely to the original language in the bill.

“It is so deeply disappointing to see major reform packages on the verge of being approved and then stopped by a silent filibuster,” said Senate President Pro Tem Robert Garton, R-Columbus.

But Garton also warned that his interpretation of the germaneness rules has been the same for 20 years and won’t change for a new speaker or new governor trying to salvage an agenda.

Speaker Brian Bosma, R-Indianapolis, said Wednesday that the Democrats simply don’t understand the meaning of being in the minority.

Kelly's story also includes a statement I have not read elsewhere:
Daniels said he proposed a major concession on the inspector general bill – to place the prosecutorial power with the attorney general. But Democrats said they were unaware of such an offer.

The Evansville Courier& Press says in an editorial:

In fact, some of the 130 legislative proposals that died as a result of Tuesday's boycott will be saved by writing them into bills that passed the Senate before Tuesday's deadline.

But it's a tighter ship these days, and Sen. Pro Tem Robert Garton, R-Columbus, may not be so easy to convince that accommodating measures can be found in the Senate. With Garton at the gate, the challenge will be finding Senate bills on closely related topics. He said in an Associated Press report that one such measure that may not find a suitable home is Gov. Mitch Daniels' proposal to put all of Indiana on daylight-saving time.

Lesley Stedman Weidenbener writes in the Louisville Courier Journal:

Senate President Pro Tem Robert Garton, R-Columbus, said his chamber won't relax its rules that restrict multiple subjects in one piece of legislation. That could prove a challenge as lawmakers look for ways to resurrect bills that died Tuesday night, although some situations will be easier than others.

Language to restrict the sales of cold medicine because it includes an ingredient used to manufacture methamphetamine could be revived in a similar Senate bill.

Language that increases speed limits on rural highways could be amended into a Senate bill that increases interstate speeds.

Targeted tax increases to fund the stadium could be included in the state budget.

What are the relevant Senate Rules? Senate rules 50 and 51 deal with the subject matter of bills:
50. No motion to amend, committee action, concurrence or conference committee action which seeks under color of amendment to substitute or insert subject matter not germane to that of the bill or resolution under consideration shall be in order. However, this rule does not apply to House bills raising revenue and relating to other taxation matters.

51. Any conference committee report not in accordance with Article 4, Section 19 of the Constitution shall not be in order.

[Recall the House Rules cited yesterday near the end of this ILB entry.]

Article 4, Sec. 19 of the Indiana Constitution reads:

An act, except an act for the codification, revision or rearrangement of laws, shall be confined to one subject and matters properly connected therewith.
More coming. Part II of this piece, "What might the Senate (and/or the House) do about the 'dead' bills?" should be posted late today.

Posted by Marcia Oddi on Thursday, March 03, 2005
Posted to Indiana Law

Ind. Decisions - Court of Appeals post one today

Matter of B.R. (3/3/05 IndCtApp) [Juvenile Law]
Najam, Judge

B.R. appeals the juvenile court’s adjudication that he committed the delinquent act of disorderly conduct, a Class B misdemeanor if committed by an adult, and presents the following issues for our review: [1] Whether the juvenile court properly invoked its jurisdiction. [2] Whether there is sufficient evidence to support the delinquency adjudication. We affirm. * * *

Conclusion. The determination of whether a juvenile court retains jurisdiction over a child previously adjudicated a delinquent must be made on a case-by-case basis in accordance with Indiana Code Section 31-30-2-1. In this case, none of B.R.’s previous delinquency adjudications supplied the juvenile court with continuing jurisdiction over him, and the juvenile court erred when it did not strictly comply with the statutory prerequisites for commencing a delinquency proceeding. However, B.R. waived that issue on appeal by failing to make a timely objection to the jurisdictional defect. Additionally, there is sufficient evidence to support the true finding that B.R. committed disorderly conduct. Affirmed.
SULLIVAN, J., concurs.

BARNES, J., concurs in result in part and concurs in part with separate opinion. I concur fully in rejecting B.R.’s challenge to the sufficiency of the evidence supporting his delinquency adjudication. I concur in result only on the jurisdictional issue. As the author of K.S., I am aware that many of my colleagues, including the majority here, do not subscribe to my reasoning in these juvenile jurisdiction cases with respect to the non-waivability of certain errors. However, as a matter of both legality and practicality, I am convinced of the correctness of K.S.’s holding. I would note that the majority here, much like the M.B. panel, has failed to address the long line of cases noted in K.S. supporting the proposition that court approval for the filing of a first delinquency petition is one of several documents that absolutely must be included in the record, and that the failure of the record to disclose such a document is a fatal, non-waivable error. * * *

Posted by Marcia Oddi on Thursday, March 03, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - [Updated] 7th Circuit posts two today

Employers Insur v. Titan Int'l Inc. (CD Ill.) [9 pp.]

Before FLAUM, Chief Judge, and POSNER and SYKES, Circuit Judges.
POSNER, Circuit Judge. The appeal in this diversity suit presents issues of appellate jurisdiction and Illinois contract law in the setting of a dispute over insurance coverage. * * *

USA v. Turner, James M. (CD Ill.) [14 pp.]

Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
BAUER, Circuit Judge. James Turner was indicted for conspiracy to launder money, in violation of 18 U.S.C. § 1956(h), and conducting a monetary transaction with the proceeds of a specified unlawful activity, in violation of 18 U.S.C. §§ 1957(a) and 2. After a jury trial, Turner was found guilty of the conspiracy charge. His appeal includes issues related to his conviction, sentence, and various evidentiary rulings. * * *

Subsequent to the briefing and oral argument in this case, the Supreme Court ruled that the Sixth Amendment is violated when a sentence that has been enhanced under the Guidelines based on the sentencing judge’s determination of a fact (other than a prior conviction) results in a sentence that exceeds the maximum authorized by the facts established by a guilty plea or a jury verdict. United States v. Booker, No. 04-104 (U.S. Jan. 12, 2005). The Court also held that the Guidelines are no longer mandatory, but advisory in every case. Id.

In this case, Turner’s sentence was enhanced by the judge’s findings that he obstructed justice, that the money laundering was sophisticated, and that he was accountable for the entire amount of money laundered in the conspiracy. These enhancements exceeded the maximum authorized by the facts established by the jury’s verdict. The judge treated the Guidelines as mandatory and sentenced Turner accordingly.

Turner’s sentence is vacated and remanded for resentencing because of the error in imposing his sentence based upon the total amount of laundered money. Upon remand, the court should resentence in light of the principles set out in Booker. The other issues raised by Appellant are without substantive merit and will not be discussed.
AFFIRMED in part, REVERSED and REMANDED in part

Posted by Marcia Oddi on Thursday, March 03, 2005
Posted to Ind. (7th Cir.) Decisions

Environment - IDEM Reorganization

IDEM has a chart on its website, dated 3/1/05, of its reorganization. In addition, I'm told:

Matt Klein (Assistant Commissioner for Compliance & Enforcement) formerly of Kroger Gardis & Regas, LLP starts on Monday. Scott Nally, (Assistant Commissioner, External Affairs) formerly with Perdue Farms started this week and Sandra Flum (Director, Intergovernmental Relations & Media & Communication Services) started last week.

Posted by Marcia Oddi on Thursday, March 03, 2005
Posted to Environment

Environment - Stories today on farm land and farm air emissions

Farmland Preservation. "Indiana remains slow to protect its farmland: As development swallows up ever more acreage, some critics wonder when the state's priorities will shift." Thatis the headline to a major story today, reported by Jason Thomas of the Indianapolis Star. Some quotes:

As Indiana's farmland gives way to development -- the state lost almost 466,000 acres of farmland from 1997 to 2002 -- efforts to preserve Hoosier soil through federal grants and state legislation have been ineffective. With no barrier to paving over farmland, critics worry whether the state is doing enough to save the land.

In fact, since 2002, officials gave back more than $2.4 million in federal money meant to preserve farmland because they couldn't spend it.

Indiana still has $250,000 available from the program, but, so far, no one wants the money. The program provides matching funds to governmental agencies or nonprofit organizations to keep farmland in productive use.

The payoff for preservation is clear in other states.

Almost 700 miles away, in Voorhees, N.J., Alvin Stafford sits inside a more than 2-century-old farmhouse on land his family has owned since colonial times.

Through a state- and locally sponsored preservation program, the Stafford farm will remain protected from development.

"The main reason to do it: It's been in the family for a couple hundred years," Stafford, 61, said. "We wanted to keep it that way."

In Indiana, a chance to bolster preservation efforts may surface as the transition of power at the Statehouse leads to an overhaul of the state's agriculture policy. So far, however, there has been little sign of a dramatic change.

Meanwhile, other states plow millions of dollars each year into preserving farmland and open space. * * *

The only avenue available in Indiana is the Farm and Ranch Land Protection Program, operated by the USDA. The program buys development rights -- or easements -- and restricts protected farmland from being used for residential or commercial development, although farming can continue. The USDA provides up to 50 percent of the fair market value of the easement. * * *

The General Assembly considered House Bill 1654, which would have created a farmland preservation program. The bill would have put a portion of the county development income tax toward farmland preservation -- similar to measures in New Jersey and Ohio. But the bill died two weeks ago in committee because of the state's budget crisis and the ample supply of farmland. * * *

During the 1990s, Indiana took steps to protect farmland from development. Gov. Frank O'Bannon created the Hoosier Farmland Preservation Task Force in 1997, and its lone recommendation -- to create the Indiana Land Resources Council, which helped local planning agencies craft land use policies -- was enacted two years later.

But Gov. Mitch Daniels dissolved the council about a month ago because the state didn't have the money to run it.

"It was a good start," said Jane Jankowski, Daniels' press secretary, "but what we want to do is create a mechanism that is more cost-efficient and effective, realizing that land use is the number one issue facing farmers in rural communities."

Eric Damian Kelly, professor and acting chairman of the Department of Urban Planning at Ball State University, is a founding member of the council. Having just drafted a growth policy recommendation, Kelly expected to meet with the new administration, but a planned January meeting never happened.

"I thought we were going to make progress," Kelly said, adding that he has not turned in his resignation from the council. "Maybe we still will."

Earlier ILB entries on farmland preservation include: 12/21/04; 12/16/04 (links to excellent, still available, Chesterton Tribune piece); 11/18/04; and particularly 4/8/04.

Farm Air Emissions. "Purdue engineer to lead farm air pollution study" is the heading to a brief story today in the Star:

A Purdue University agricultural engineer will lead a national study of air pollution emitted from huge livestock and poultry farms -- the first step toward possibly establishing emissions standards for such farms.

Al Heber, a professor of agricultural and biological engineering, will lead the two-year, $9 million U.S. Environmental Protection Agency study.

It will look at dust, ammonia, hydrogen sulfide and other pollutants released from farms that sometimes house tens of thousands of animals.

Such emissions have become a contentious issue in Indiana and elsewhere as farms -- and the amounts of waste they produce -- become increasingly larger.

The first step is obtaining good baseline data on emissions, "or we run the risk of having regulations shaped by untimely political and societal pressures without essential facts," Heber said Wednesday in a written statement.

More information may be found in this Newswire story:
Heber will be the lead researcher for the two-year air study required by the Animal Feeding Operation Consent Agreement, published Jan. 31 [sic.] in the Federal Register. Study protocols were developed jointly with scientists from the EPA, U.S. Department of Agriculture, numerous universities and others. Contract terms for the study are now being reviewed.

Part of the difficulty with livestock air emissions is that limited data exist to help farmers or regulatory agencies determine which kinds and sizes of operations and types of management practices might produce emissions exceeding legal limits, Heber said.

"Without good baseline data on emissions, we run the risk of having regulations shaped by untimely political and societal pressures without essential facts," he said. "The issues surrounding agricultural air emissions are complex and affect many different stakeholders. We need to discover how science can help develop fair and accurate air quality regulations."

To conduct the study, Heber will recruit scientists from additional universities and deploy monitoring teams with fully equipped mobile labs. They will collect data at selected farms continuously over a 24-month period on particulate matter emissions, ammonia, hydrogen sulfide and volatile organic compounds. Outdoor manure storage facilities also will be monitored.

The mobile labs are trailers outfitted with gas analyzers, pollutant detectors, weather stations and other equipment, which record data on air samples drawn from various locations inside and outside livestock facilities. Data also will be collected on animal size and number, nutrient content of their diet and manure, climate, and routine farm operations that might affect air emissions.

"What's unique about this study is that it will provide continuous, long-term measurements of emissions coming from barns, plus periodic measurements of lagoons and other manure storage facilities," Heber said.

Mobile labs and manure storage monitoring will be established at egg, swine, dairy, broiler hen and turkey facilities, and separate data sets will be developed for each species. EPA officials will use the data to help develop air emissions standards for the livestock industry.

"The EPA will be able to see how emissions change with time of day and season in combination with other factors and incorporate that information into the regulations the agency develops," he said. "Studying emissions from existing commercial facilities is the best way to gather data that will, in the long term, address air quality and other environmental concerns."

Heber has led several studies of practices to control odor, gas and dust emissions from livestock barns and waste storage facilities. He runs one of the only odor labs in the United States and directs Purdue's Agricultural Air Quality Laboratory.

As part of the project, Heber will create and maintain a Web site with information to let the public know how the study is progressing. Odor abatement will not be part of the national study.

Here is Dr. Heber's website. And here is more ILB information on the January 21, 2005 EPA Federal Register announcement, referenced above.

Posted by Marcia Oddi on Thursday, March 03, 2005
Posted to Environment

Ind. Go't. - More on Trump withdrawl from French Lick casino scene

Those who had been looking forward to Donald Trump's apprentices being sent to French Lick to bottle and market "pluto water" for the newest Trump casino are bound to be disappointed this morning.

"Trump bails out of casino plan for French Lick" is the headline to Michele McNeil's story today in the Indianapolis Star. Some quotes:

On Wednesday, six months after awarding Indiana's 11th casino to Trump Hotels & Casino Resorts, state gambling regulators announced they must find another company to build the French Lick casino. Trump did not meet a state-imposed deadline.

"I'm going to do everything I can to make sure your dream comes true," Ernest Yelton, the new executive director of the Indiana Gaming Commission, told residents at a meeting in French Lick on Wednesday.

And Yelton assured the audience -- many wearing orange shirts promoting the casino -- that they would get one. "There has never been any hint that this boat will move from Orange County," he said. * * *

Yelton said the Gaming Commission could decide to reopen the bidding process or narrow it to the groups that lost last year. Two companies that lost to Trump say they're still interested in building the casino. * * *

Negotiations between the state and Trump began to unravel Feb. 17, when gambling regulators delivered a list of demands to the company. The state wanted complete details on how the project would be funded and a strict timeline for approval.

Yelton, with the blessing of Gov. Mitch Daniels, hired a bankruptcy lawyer and casino expert to help review the deal and craft the list of demands. Trump told gaming officials Monday it couldn't meet the demands and needed more time. Yelton wouldn't extend the deadline. * * *

In July, the Gaming Commission voted 4-2 to award the project to Trump, which had the most ambitious proposal. Trump's casino company proposed a bigger facility with more gambling revenue than the two competing bids.

The commission awarded the project to Trump even though the company was involved in a financial reorganization as it tried to get out from under $1.8 billion in debt. In addition, Trump provided no specifics as to how it would pay for the project.

Much of the commission that approved the Trump bid is gone; four of the seven seats are open.

Less than a month after the project was awarded, the company said its ability to follow through on the project was "uncertain," according to filings with the Securities and Exchange Commission.

Compounding problems for Trump was an April decision of the Indiana Tax Court -- one later upheld by the Indiana Supreme Court -- ordering the state's 10 riverboats to pay back taxes owed. The issue involved whether riverboats could deduct wagering taxes from their income tax bills. Trump, which operates a riverboat in Gary, owes an estimated $20.9 million.

In a disclosure statement filed last month with the New Jersey bankruptcy court, Trump acknowledged it had an offer from an unidentified party to buy the Gary riverboat and was considering the offer.

Grace Schneider of the Louisville Courier Journal has some additional information:
FRENCH LICK, Ind. -- Citing grave financial concerns, Indiana's top gambling regulator announced yesterday that the state has dropped negotiations with billionaire Donald Trump's company to build and operate a casino in Orange County.

Ernest Yelton, executive director of the Indiana Gaming Commission, assured casino supporters that the state will move quickly to find another operator. While it's not clear whether the bidding process will be reopened, he said an alternate developer could be selected in the next few months. "You have my promise, and my guarantee, that the state will move expeditiously," he said.

Yelton told about 80 area residents, casino representatives and members of the local panel overseeing the project that the gaming commission gave Trump executives a list of demands and deadlines late last week. That was done after experts enlisted by the state uncovered troubling financial information in the bankruptcy proposal Trump Hotels and Casino Resorts Inc. filed in New Jersey. * * *

The Trump company was selected over two other investment groups. But the project has faced a string of setbacks ever since. Its attempts to refinance $1.8 billion in debt unraveled last fall, leading the company to file for bankruptcy in November.

Gov. Mitch Daniels, meanwhile, was so concerned about the company's viability that he asked the gaming commission to postpone awarding a contract to Trump until he took office in January. The governor also asked Yelton, whom he appointed in early January, to take a hard look at Trump's proposal.

Yesterday, Yelton cited the work of Purdue University finance professor Charlene Sullivan and Michael Hile, an Indianapolis bankruptcy lawyer, for helping the commission ferret out some critical information.

The most troubling was Trump's intention to use its casino properties, including the Orange County project, as collateral for a multimillion-dollar loan -- money that would be used primarily to refurbish the company's flagship Trump Taj Mahal casino in Atlantic City, N.J.

Posted by Marcia Oddi on Thursday, March 03, 2005
Posted to Indiana Government

Wednesday, March 02, 2005

Ind. Law - Still more on "So, how 'dead' are these bills, really?"

I received this question from a reader this afternoon:

The quorum count required in the Indiana House is set by rule, and the house is not helpless in the face of a walkout. Why did Bosma act like it was out of his hands?
The reader points to the following House rules:
3. Quorum. Two-thirds of the members of the House constitute a quorum to do business. (Constitution, Article 4, Section 11.)

4. Power of Less Than a Quorum to Compel Attendance. Seven (7) members with the Speaker or Speaker Pro Tempore, or eight (8) members in the absence of the Speaker and Speaker Pro Tempore, one member of the majority of whom they shall elect acting Speaker, may call the House to order, compel the attendance of absent members, make an order for their fine and censure and adjourn from day to day until a quorum is in attendance.

I'd also add to that list:
77. Absence of Quorum. When less than a quorum is present no motion may be entertained, except to adjourn or compel the attendance of members.
I consulted with a wise observer of many General Assemblies for an answer. First, of course, the "quorum count required in the Indiana House is [indeed] set by rule," but that rule echoes the Constitution, and the Constitution cannot be altered by House rule.

Second, yes, Speaker Bosma could have sent the doorkeepers or even the State Police out to attempt to round up the absent members. Readers may most recently recall that happening in Texas, where Democrats who did not want to see new redistricting legisation enacted fled once to Oklahoma and once to Louisiana, if I recall correctly. And U.S. Rep. Tom DeLay received some national heat for using the FAA to track down airplanes carrying the fleeing lawmakers.

But much the same has happened in Indiana. Longtime readers of this ILB may recall the following entry from May 16, 2003:

And Indiana has its own recent history, as recounted in this AP [report telling about] two Indiana stories, the reapportionment walkout of 1995, and the notorious 1925 walkout:
Perhaps Indiana's most storied party bolt took place in 1925 when Senate Republicans tried to alter the congressional districts. Thirteen Senate Democrats broke a quorum by boarding a bus and traveling to Dayton, Ohio. A 14th got there by hitchhiking. "For the next two days, U.S. 40 between Indianapolis and Dayton was jammed with process servers and Republican politicos trying to coax, cajole or coerce the fugitives back to their seats," Justin Walsh wrote in the book, The Centennial History of the Indiana General Assembly. Back in the Senate, Republicans draped the seats of the Democrats in black crepe paper. They also read a telegram purportedly from Ohio's lieutenant governor responding to a proposal to exchange five Ohio Republicans for the Indiana Democrats.
I too have consulted The Centennial History at pp. 347-348 and find there is a bit more to be told about the 1925 "bolting":
The Indianapolis newspapers enjoyed field days from February 25 through 27 [1925] serving a steady diet that included dignified statements from Dayton [Ohio] by Senator Cravens regarding the rights of a legislative majority and a heart-rending account of Senate "widows" left behind in Indianapolis. * * * In the meantime, Klan Grand Dragon D.C. Stephenson did go to Dayton to break the deadlock. Stephenson stood to lose his entire agenda in the General Assembly if Democrats did not return so the session could finish its work.
My wise observer opined: "I would not want to be quoted, but I think by letting his members vent some steam on the floor and remaining a little restrained himself, the Speaker at least kept the D’s in Indianapolis." The observer continued:
Since the advent of single-member districts, the split in the House has been quite close every term. 55 members would be a big majority in current terms. The old days of 70-member majorities are over, at least for now. Certainly, the Republicans can pass anything they want but they only have 1 extra vote (52 members, 51 votes required for passage). What if one R has a heart attack as Ulmer did last year? What if 1 member feels he or she can’t support the caucus on an issue? On a bill like daylight saving time, for example, some of the western-most of the Republicans might endanger their seats by voting for it, the majority has to maintain some relationship with the rank and file Democrats. Holding them virtual prisoners doesn’t seem to be the way to accomplish that.

The new members seemed to be particularly puzzled by the events and were probably more likely to push for use of the police. Most of the veterans know denying a quorum is the only weapon the D’s have. In prior years, the R’s could rely upon the Senate to kill most things they abhorred. With the governor’s office gone and the Senate D’s completely ineffective, the House D’s are the only ones who can make a stand.

I always think of John Gregg saying the state police would have to chase him through the cornfields. There’s a vision for you!

I had planned to write a little about the Senate tonight too, but that may wait now until tomorrow.

===============================================================================

[Update 3/5/05] I received a note from a reader yesterday proposing another opinion for Speaker Bosma, should there be another walkout:

Good coverage on the issue. In addition to sending out the State Police, which would be pretty heavy handed, the rule says the majority "may ... make an order for their fine and censure..." It seems that the speaker could have announced at noon that there would be a vote at 4:30 upon an order of fine and censure. Set the fine at the equivalent of the day's wages ($131 did I see in the Star) plus the days per diem for those not in attendance from 5 to midnight.

An amount for the fine that is appropriate to the problem, not so heavy handed as to lose the political posturing needed for public support. Yet the fine is small enough that if either party wants to use this tactic again, it does not foreclose the prospect. Then the fallout for their exercise of principle is borne by the one exercising their principles. (Stephen L Carter in his book "Integrity" suggests that is the proper way to test whether a choice is one of integrity.)

Posted by Marcia Oddi on Wednesday, March 02, 2005
Posted to Indiana Law

Ind. Decisions - Oral arguments this month

The Supreme Court is hearing oral arguments tomorrow (Mar 3, 2005 9:00 AM - 9:40 AM EST) in the case of IDEM v. West, et al. The Marion Superior Court affirmed a decision of the State Employees' Appeals Commission finding IDEM employees had been discriminated against on basis of age. The Court of Appeals affirmed, holding there was sufficient evidence supporting the finding and the Commission acted within its authority in ordering creation of new jobs for employees if necessary. Indiana Dept. of Envtl. Mgmt. v. West, 812 N.E.2d 1099 (Ind. Ct. App. 2004), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for Appellant; Frances Barrow of Indianapolis, IN. Attorney for Appellee; Melinda O'Dell of Mooresville, IN.

Posted by Marcia Oddi on Wednesday, March 02, 2005
Posted to Ind. Sup.Ct. Decisions

Ind Decisions - State Supreme Court to hear Armstrong case arguments

According to this story in the Princeton Daily Clarion, the Indiana Supreme Court has granted transfer in the case of Michael Armstrong v. State of Indiana, where the issue was, according to this ILB entry from 11/24/04: When a passenger jumped from defendant Armstrong's moving vehicle and was injured as a result, was Armstrong involved in an accident for purposes of IC 9-26-1-1, triggering the duties under that statute? Some quotes from today' story:

PRINCETON-The office of Gibson County Prosecutor Robert Krieg announced Tuesday that the Indiana Supreme Court has agreed to hear oral arguments April 7 in the case of Michael Armstrong.

Krieg made a request Dec. 1, 2004 to Indiana Attorney General Steve Carter that his office petition the state's highest court to hear arguments in the case, after the Indiana Court of Appeals reversed a Gibson County Superior Court's decision on an interlocutory appeal filed by Armstrong's attorney.

Armstrong was charged with leaving the scene of an accident involving death, in connection with the May 2003 death of Craig Mobley.

Mobley was a passenger in a vehicle driven by Armstrong, from which Armstrong claims Mobley jumped after he accused Mobley of burglarizing his home. Armstrong left the scene but returned an hour later in a different vehicle.

According to autopsy reports, Mobley's injuries were consistent with a fall from the vehicle. * * *

The appellate court agreed with Penrod's opinion that a vehicle did not need to strike an object or a person for the law to apply. But in its reversal of Penrod's decision it said that its interpretation of the law could not be applied to Armstrong because a person must have fair notice that their actions may be deemed criminal before they act.

After the appellate's court decision Nov. 23, 2004 to reverse [Gibson County Superior Judge Earl Penrod's] ruling, Krieg decided to seek a Supreme Court hearing on the question. * * *

The court agreed to hear the arguments at 9:45 a.m. April 7 and notified Arnaez of its decision, according to the prosecutor's office.

Posted by Marcia Oddi on Wednesday, March 02, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Gov. Daniels' reaction to walkout that "killed" more than 130 bills

The Indianapolis Star website is also reporting this afternoon Governor Daniels' reaction to yesterday's House action. Access it here. A sample:

Gov. Mitch Daniels spared no criticism of House Democrats today for staging a walkout that killed more than 130 bills, including some elements of Daniels's legislative package.

"Indiana's drive for growth and reform was car bombed yesterday by the Indiana House minority," Daniels said today during a Statehouse news conference. "Any pretense notwithstanding, it is clear that this cynical action was planned from the start of the session."

Daniels, a Republican, asserted he had made compromises with Democrats, but was continually frustrated.

Daniels assigned blame to Minority Leader B. Patrick Bauer.

"If you want to know why Indiana's economy fell behind, why state government is broke, broken, and awash in scandal, just look at Mr. Bauer."

Posted by Marcia Oddi on Wednesday, March 02, 2005
Posted to Indiana Government

Ind. Gov't. - Governor makes appointments to board of Indiana Economic Development Corp.

The Indianapolis Star is reporting on its website this afternoon:

Business executives from small and large companies around the state will fill the board of directors of the newly created Indiana Economic Development Corp., Gov. Mitch Daniels announced today.

The list includes:

Former Lt. Gov. John Mutz, who was once president of PSI Energy, a utility in Indianapolis.

Bill Mays, the president of Mays Chemical Co. in Indianapolis.

Cathy Langham, president and owner of Langham, a freight management firm in Indianapolis.

Tim Solso, CEO of Cummins Inc., an engine maker in Columbus;

John Hillenbrand, a board member of Batesville's Hillenbrand Industries, which owns casket-making businesses.

Bob Koch, CEO of Evansville's Koch Enterprises, whose companies make die castings, sealants, adhesives and paint finishing systems.

Sally Rushmore Byrn, CEO of SSCI Inc., a West Lafayette firm that provides research and analytical services to the pharmaceutical industry.

Bruce White, CEO of White Lodging Services, a hotel firm in Merrillville.

Dane Miller, founder and chief executive of Warsaw's Biomet Inc., a maker of orthopedic implants.

Kip Tom, president of Tom Farms, a Leesburg family business that produces seed corn.

James Marcuccilli, CEO of Star Financial Bank and Star Insurance Agency in Ft. Wayne;

The 12th member of the board will be Daniels. He said the board would first meet March 17 and then quarterly after that, except for an extra meeting to get started.

Posted by Marcia Oddi on Wednesday, March 02, 2005
Posted to Indiana Government

Ind. Law - More on "So, how 'dead' are these bills, really?"

For those interested, I've added more information to the end of this morning's entry, "So, how 'dead' are these bills, really?" Scroll down or go here for access.

Of course, the Senate Rules also figure into any answers. If I receive more thoughts from readers, I may add a second entry, and include Senate information.

Posted by Marcia Oddi on Wednesday, March 02, 2005
Posted to Indiana Law

Ind. Decisions - One today from the Supreme Court

Brenna Guy v. State of Indiana (3/2/05 IndSCt) [Criminal Law & Procedure; Statutory Construction]
Shepard, Chief Justice

The trial court denied Brenna Guy’s motion to suppress the results of her breath test, administered to assess intoxication. This interlocutory appeal presents the question whether a tongue stud inserted in her mouth more than twenty minutes before the test renders the results of the test inadmissible. We conclude that it does not, and affirm. * * *

Guy acknowledges that the tongue stud was not put in her mouth during the twenty minute waiting period, but contends that a correct interpretation of the regulation is that the person must not have had any foreign substance in his or her mouth during the waiting period. * * *

The concern over foreign substances a person’s mouth is the potential for the substances to absorb and retain alcohol in the mouth, which could falsely elevate the breath alcohol concentration. * * * A number of studies have shown, though, that a fifteen to twenty-five minute waiting period during which nothing is placed in a person’s mouth allows sufficient time for any mouth alcohol to dissipate. * * * These studies support the department of toxicology’s decision to require that nothing be “put” in a person’s mouth within twenty minutes of a breath test.

To be sure, the department and the State could be obliged to defend the validity of the regulations should a defendant submit admissible scientific studies or expert testimony to a trial court in support of a motion to suppress. That has not occurred here.

IV. Conclusion. We affirm the trial court’s denial of the motion to suppress.

Dickson, Sullivan, and Rucker, JJ., concur.

Boehm, J., concurs in result, concluding that some substances could retain alcohol even if “put” in the mouth more than twenty minutes before testing, but studs, dentures, etc. are not “foreign” if ordinarily found in the person’s mouth.

Posted by Marcia Oddi on Wednesday, March 02, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit posts two today

Hor, Abdelhadi v. Gonzales, Alberto R. (Bd.Imm.App.) [8 pp.]

Native American Arts v. Waldron Corporation (ND Ill.) [8 pp.]

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges. POSNER, Circuit Judge. The Indian Arts and Crafts Act, 25 U.S.C. §§ 305 et seq., forbids (so far as bears on this case) selling a good “in a manner that falsely suggests it is . . . an Indian product.” § 305e(a). The principal plaintiff, Native American Arts (NAA), is a seller of goods produced by Indians. It brought this suit for damages against a non-Indian manufacturer of Indian-style jewelry that is advertised under such names as “Navajo,” “Crow,” “Southwest Tribes,” and “Zuni Bear” and sold with tags that give facts about the tribe. The ads identify the designer of the jewelry as Trisha Waldron, who is not an Indian. Neither the tags nor the ads contain any disclaimer of authenticity. The case was tried to a jury, the verdict was for the defendants, and the plaintiffs appeal. Although the Indian Arts and Crafts Act dates back to 1935, this is—amazingly—the first reported appellate case under it. Until 1990, the only sanction for violating the false-advertising provision was criminal; and there were no prosecutions—zero. * * * The plaintiffs’ principal argument is that the district judge should not have held unconstitutional, and therefore refused to base an instruction to the jury on, a regulation that provides that “the unqualified use of the term ‘Indian’ or . . . of the name of an Indian tribe . . . in connection with an art or craft product is interpreted to mean . . . that the art or craft product is an Indian product.” 25 C.F.R. § 309.24(a)(2). * * * So there was no error in the instructions. The other arguments made by the plaintiffs either are rendered academic by our ruling on the adequacy of the instructions or lack sufficient merit to warrant discussion. The judgment for the defendant is AFFIRMED.

Posted by Marcia Oddi on Wednesday, March 02, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Law - [Updated] So, how "dead" are these bills, really?

The Indianapolis Star has a comprehensive story today by Kevin Corcoran and Michele McNeil covering yesterday's activities in the General Assembly. The headline: "Dems boycott all day, dooming 132 bills: Stadium funding, time change wither in House; revival of controversial bills will be a tall order."

The story includes a very nice online table of more than a dozen "dead" bills. A quote from the story:

Bringing bills back from the dead is not easy. Some legislation, including daylight-saving time, could be difficult to resurrect. Others, such as a funding plan for the Colts stadium, could be revived and amended into House Bill 1001, the state budget.
Lesley Stedman Weidenbener's story today in the Louisville Courier Journal reports:
Without action last night, bills that would restrict the sale of cold medicines that can be used to make methamphetamine, increase speed limits on rural highways and provide raises to judges were expected to die.

So were bills that seemed to be at the heart of the partisan standoff. House Bill 1002 would give the governor's inspector general, a largely administrative and investigative position now, limited power to prosecute state employees who commit bribery, fraud and other crimes.

House Bill 1439 would require voters to show a valid, government-issued identification card to vote, which Republicans say is necessary to prevent fraud but which Democrats say will depress voting among poor and older Hoosiers.

Minority Leader Pat Bauer, D-South Bend, said those bills are so onerous that Democrats just can't participate in their passage, even by voting against them.

But Rep. Marlin Stutzman, R-Howe, said yesterday that Democrats need to come to the floor to express their opposition.

"There's nothing wrong with disagreeing. That's part of democracy," he said. "There's also nothing wrong with coming and voting against something you disagree (with)."

Although bills that didn't pass by the midnight deadline appear dead, they could be resurrected if the House takes the unusual step of making wholesale changes in its rules. With just a majority vote, Republicans could alter the deadline for bill passage.

Also, the wording of the bills could be amended into legislation on similar subjects.

For example, the proposal to raise taxes on the state's top-earning casinos, on professional athletes' salaries, and on hotels and rental cars in Indianapolis to fund a Colts stadium could be amended into the state budget bill.

Bauer said yesterday that when Republicans walked out last year, about 80 bills died. Roughly half of those were resurrected in other bills, he said.

But House Rules Chairman Matt Whetstone, R-Brownsburg, said the Senate imposes strict rules on such amendments, and he said Republicans plan to be stricter than their Democratic predecessors in the House.

So, how "dead" are these bills, really? Here are some questions I had for starters:
  • When can a "dead" bill be put into a bill from the other house with a similar "subject."

  • Is there some rule about not reviving the subject matter of a bill that died in committee in the first house? [See footnote]

  • Can the contents be "stripped" into a bill that is on a different subject and the title changed?

  • Are there rules about what can be added to a bill in conference?

  • Are there differences between senate and house in any of this?

  • How likely is it that one or another of the houses would suspend the third reading deadline? Has this been done in the past?

  • Doesn't the one-subject provision in the constitution limit how many topics can be added into the budget bill?
I tried the above questions out on one knowledgeable source and received this very prompt response:
The House killed a lot of bill numbers (unless the 3rd reading deadline is suspended) but not any subject matter. The decisively defeated rule (51 or more votes against on third reading) applies to topics put into house bills (including conference reports). It specifically exempts consideration of a senate bill on the same topic. Nothing was defeated so that rule really doesn’t come into play.

One could insert related matters into a Senate bill as it goes through the House. The biggest obstacle there would be the germaneness rule and the fact that it is being interpreted more tightly in the House this year.

One could also strip a Senate bill, but that requires written consent of the author, coauthors, sponsor, and cosponsors. As one of the House D’s discovered, that can be quite an obstacle. He was himself a coauthor of a bill which had been weakened in committee. He wanted to restore the original purpose of the bill, but the other coauthor turned out to be the key factor: she just said no.

There is no House rule or joint rule restricting the topics a conference committee may deal with, but by custom no topic can be inserted unless it has passed at least one house. I don’t think the Senate has a written policy about this, but I don’t know for certain.

____
*I remember this quote reproduced in a Feb. 2, 2004 ILB entry:
So this and every year, [Rep. Chet Dobis, D-Merrillville] files his bill to follow daylight savings time -- and nothing happens. On purpose. "That bill is going nowhere," Dobis said this week. "But if you know the rules of the game, you can play within them." Dobis' solution works because no one else can pass a bill, or amend the daylight savings change into another bill, as long as his bill on the same topic is pending. The blocking strategy works so well, it has forced critics to throw in the towel.
[Update] Re the above, a knowledgeable reader adds:
The question of the bill pending rule is important for second reading amendments because prior precedent has been that bills were still pending even after the deadline for action had passed. In other words, even a dead bill is still pending. Inserting a house bill into a senate bill without any changes could be blocked. But, since committees routinely combine bills on related topics, that would seem to be the most likely place to begin inserting dead house bills. I’m not aware of any rule, including rules of the various committees, which prohibit combining bills in committee.
That comment caused me to review the House Rules. The "bill pending" rule in the House is #118.
118. Substituting Another Bill. No bill may be amended by annexing to it or incorporating with it any other bill pending before the House.
Other House rules of interest (in regard to reviving dead bills) include:
80. Germane. No motion or proposition on a subject not germane to that under consideration shall be admitted under color of an amendment.

119. Substituting Different Subject Matter—House Bill.

119.1 No amendment proposed to a House bill substituting therein a different subject matter may be accepted, unless accompanied by the written consent of its author and coauthors.

119.2 The House shall reject all House bills that have been amended in the Senate by substituting therein the contents of a different bill or a different subject matter without having first received the written consent of its author and coauthors.

120. Substituting Different Subject Matter—Senate Bill. No House amendment proposed to a Senate bill substituting therein the contents of a different bill or a different subject matter may be accepted unless it is accompanied by the written consent of the author, coauthors, sponsor and cosponsors.

What about amending or suspending the rules? That is covered here:
8. Changing the Rules. Any rule may be rescinded, changed or suspended without previous notice, and a motion for such purpose is in order at any time, except after a vote on the question has been ordered. Such a motion has precedence over all other business. The motion must be seconded by a constitutional majority and must be carried by two-thirds vote of the members of the House, except as provided in Rules 147 [deadline for house bills], 148 [deadline for senate bills] , 162 [deadline for consideration of conference committee reports] and 164.2 [see below]. However, the rescission, change or suspension of any rule recommended by the Committee on Rules and Legislative Procedures may be adopted by a constitutional majority of the House.

164.2 [Time on Members’ Desks.] During the first regular session, the budget bill shall be laid over for twenty-four (24) hours after filing. This rule may not be suspended without a two-thirds (2/3) vote of the members of the House.

Posted by Marcia Oddi on Wednesday, March 02, 2005
Posted to Indiana Law

Ind. Gov't. - [Updated] Trump pulls plug on Indiana casino project

"Trump pulls plug on Indiana casino project" is the headline to a brief story the Indianapolis Star posted on its website a few minutes ago. Quotes:

Trump Hotels & Casino Resorts, Inc. announced today that it has ceased negotiations with the Indiana Gaming Commission to construct and operate a riverboat casino in Orange County, Ind. * * *

Scott C. Butera, the company's President and Chief Operating Officer, commented, in a prepared statement, "The financial prospects for a casino in French Lick have changed since the time we were awarded the project. The tax burdens have become more onerous, and the proposition for additional gaming facilities in Indiana appears eminent."

[Update] Here is an AP report published on the Newsday site:
FRENCH LICK, Ind. -- Donald Trump's casino company has dropped plans to build and operate a casino in southern Indiana, saying the state imposed heavy tax burdens and that there were other plans made for gaming in the state since it won the casino bid.

Ernest Yelton, executive director of the Indiana Gaming Commission, said Wednesday that negotiations had ended with Trump Hotels and Casino Resorts Inc. amid a review that began after Gov. Mitch Daniels took office in January.

Yelton said Trump officials told him Monday that the company had decided against continuing with the project in French Lick, about 40 miles south of Bloomington. He said he had recently given the company conditions to meet in order to continue with the project.

Trump officials cited a recent state tax court decision that the company owed $18 million in back taxes for its casino along Lake Michigan in Gary, and the potential expansion of gambling elsewhere in the state.

"The financial prospects for a casino in French Lick have changed since the time we were awarded the project," company President Scott Butera said in a statement. "The tax burdens have become more onerous, and the proposition for additional gaming facilities in Indiana appears eminent."

Posted by Marcia Oddi on Wednesday, March 02, 2005
Posted to Indiana Government

Law - Fellow jurists won't let fear stand in way of justice

"Fellow jurists won't let fear stand in way of justice" is the headline to this story today in the Chicago Tribune. Some quotes:

In the wake of a colleague's unimaginable loss, judges at U.S. District Court in Chicago on Tuesday continued with the day-to-day matters of jurisprudence. One held closing arguments in a case. Others hunkered in their offices writing decisions or attended meetings with attorneys.

But thoughts of the shocking murder Monday of U.S. District Judge Joan Lefkow's husband and mother were never far from mind, and the dozens of jurists who walk the courthouse halls were forced to reflect on their potentially dangerous roles settling complex and often acrimonious cases. According to federal sources, about a dozen judges from the courthouse requested additional security Tuesday.

"This comes with the territory. You never know where it is going to come from," one judge said Tuesday. "What I am trying to say is there's no way to be safe, there's no 100 percent in the world."

Since 1979, three federal judges have been murdered in the United States. If Monday's slayings are linked to Lefkow's role as a jurist, it would mark the first time relatives of a federal judge have been murdered, according to Marc Farmer, assistant director of the U.S. Marshals Service's judicial security division in Washington. * * *

"I think there is a commitment to justice and our role in that. But there's probably less focus on that than on the immediate sense of loss and concern," U.S. District Judge Rebecca Pallmeyer said.

Lefkow "is a person of such grace and dignity," Pallmeyer said. "It's hard to imagine the pain she is suffering."

Echoing the determination of many of the courthouse's district and magistrate judges not to let the Lefkow tragedy deter them, U.S. District Chief Judge Charles Kocoras said in a statement: "Even as we mourn these senseless deaths, we must maintain our resolve to carry out the work of this court in upholding the rule of law in our country,"

Posted by Marcia Oddi on Wednesday, March 02, 2005
Posted to General Law Related

Ind. Law - “That’s really our only constitutional duty,” Bauer said

Getting a late start today ...

A story today by Jim Stinson of the Gary Post-Tribune gives a good picture of yesterday in the Indiana House. The headline "Dems walk out on final House-bill day." Some quotes:

Dozens of bills that Republicans said were important to Northwest Indiana and the state as a whole faced an uncertain fate as a midnight deadline loomed Tuesday night.

At stake was not only statewide daylight-saving time — a major component of Gov. Mitch Daniels’ agenda — but a property tax “circuit breaker” that would mostly benefit Lake County homeowners.

Democrats cried foul regarding the inspector general bill, which they said would make the position the most powerful of any kind in the United States.

House Bill 1002, the inspector general bill, was one of about 130 bills that faced an immediate death in the House if Democrats stayed away.

The last day for House bills to be finalized began Tuesday morning with a prayer at about 9 a.m. Then Democrats adjourned to caucus, effectively walking out and shutting down legislative business until they returned. More than 12 hours passed. * * *

In a news conference in the afternoon, Minority Leader Pat Bauer, D-South Bend, indicated Democrats would probably not reappear on the floor.

The budget and major economic development projects have been approved by the House, Bauer said, fulfilling major constitutional and political duties, respectively.

“That’s really our only constitutional duty,” Bauer said.

May I ask again - Where in the Constitution does it say that?

Further, the Indiana General Assembly has two houses. Passing a bill in one house only begins the process of lawmaking, it does not mean our elected representatives may pack up their bags and go home. The other house gets a chance to review the bill, reject it, or adopt it, with or without revisions. Then, if there are differences, the two houses may work them out, or not.

Another quote from the story got my attention:

The bill seemed doomed for now. But the state Senate could change their deadline to accept the bills, some leaders said.
Sure. And hell could freeze over.

Posted by Marcia Oddi on Wednesday, March 02, 2005
Posted to Indiana Law

Tuesday, March 01, 2005

Law - Updates on Lefkow murders and today's Supreme Court ruling

The Washington Post this afternoon has a comprehensive story on what is known so far in the murders yesterday of U.S. District Judge Joan H. Lefkow's husband and mother.

Here is an AP story, dateline Chicago, published on the NY Times website this afternoon.

There are several updates on the Chicago Tribune home page.

The Post also has good coverage of today's Supreme Court decision to abolish the death penalty for those who commit crimes before age 18. Access the story by Charles Lane here. The story includes links to the opinion and related documents in Roper v. Simmons. There is also a run-down of Supreme Court death penalty rulings, and a state-by-state breakdown "of the 72 people on death rows who were juveniles when they committed their crimes." Indiana is not listed. Texas has 29.

A NY Times story may be accessed here.

Posted by Marcia Oddi on Tuesday, March 01, 2005
Posted to General Law Related

Ind. Decisions - Court of Appeals posts two today

James A. Altes v. State of Indiana (3/1/05 IndCtApp) [Criminal Law & Procedure]
Riley, Judge

* * * Altes raises four issues on appeal, which we consolidate and restate as the following two issues: Whether the State presented sufficient evidence to sustain Altes’ convictions for child molesting; and Whether the trial court properly sentenced Altes in light of Blakely v. Washington. * * *

Next, Altes 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, Altes 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. * * *

As its main argument, the State maintains that Blakely does not apply to Indiana’s sentencing scheme. In particular, the State alleges that Blakely does not require jury findings under Indiana’s sentencing scheme because a presumptive sentence is merely a guidepost which enables the trial court to impose an appropriate sentence. We are not convinced.

We recently held that because in Indiana the presence of a single aggravating circumstance may lead to an enhanced sentence, i.e., one greater than the presumptive sentence, the presumptive sentence equates to Blakely’s statutory maximum. See Strong v. State, 817 N.E.2d 256, 261 (Ind. Ct. App. 2004); Holden v. State, 815 N.E.2d 1049, 1059 n.6 (Ind. Ct. App. 2004); Berry v. State, 819 N.E.2d 443, 456 (Ind. Ct. App. 2004). Based on this new, established case law, we reject the State’s assertion that the presumptive sentence functions as a sentencing guidepost. Consistent with our prior decisions, we hold that Blakely prohibits our trial courts from imposing a sentence greater than the presumptive based on a factor not admitted by the defendant, or submitted to the jury and proven beyond a reasonable doubt.

* * * Therefore, given the trial court’s assigned importance to the remaining aggravator and balanced against the two mitigators, we refuse to hold that the trial court would have imposed a different sentence. See id. Therefore, we find that the trial court did not err by imposing an enhanced sentence on Count I. Accordingly, we are not in a position to revise Altes’ sentence on appeal.

CONCLUSION. Based on the foregoing, we find that the State presented sufficient evidence to sustain Altes’ convictions for child molesting and that the trial court properly sentenced Altes. Affirmed.
CRONE, J., concurs.

ROBB, J., concurs in part and concurs in result in part with separate opinion. I concur in the majority’s resolution of the sufficiency issue, but respectfully concur only in result as to the sentencing issue.

The majority concludes that “Blakely prohibits our trial courts from imposing a sentence greater than the presumptive based on a factor not admitted by the defendant, or submitted to the jury and proven beyond a reasonable doubt.” SFor the reasons previously set forth in my concurring in result opinion in Abney v. State, No. 25A05-0407-CR-394 (Ind. Ct. App., Feb. 15, 2005), I disagree that Blakely so prohibits Indiana courts from exercising their sentencing discretion. I would not therefore find any of the aggravators improper because of Blakely and would affirm the sentence. If, however, the aggravators were found to be improper for reasons other than Blakely, I would agree with the majority’s conclusion that the multiple victim aggravator is alone sufficient to support Altes’ sentence. I therefore concur in the majority’s result affirming Altes’ sentence.

Donald Riehle v. State of Indiana (3/1/05 IndCtApp) [Criminal Law & Procedure]
Vaidik, Judge
Donald Riehle appeals his convictions for Child Molesting as a Class A felony, Child Molesting as a Class C felony, Conspiracy to Commit Child Molesting as a Class A felony, and Conspiracy to Commit Child Molesting as a Class C felony.

Because the evidence shows that Riehle performed deviate sexual conduct with the nine-year-old victim and that Riehle entered into an agreement with the child’s mother to do so, the evidence is sufficient to support his convictions for Child Molesting as a Class A felony and Conspiracy to Commit Child Molesting as a Class A felony.

Further, the trial court did not abuse its wide discretion in allowing the State to lead the victim during her direct examination given her young age and obvious reluctance to testify about the details of the crimes. In addition, the trial court did not commit fundamental error in admitting an entire tape recording of a conversation between Riehle and an informant into evidence given its relevance to the charged crimes.

Moreover, the continuing crime doctrine does not apply to the facts of this case, and therefore, the State properly charged and convicted Riehle.

Finally, we remand this case for resentencing in light of Blakely v. Washington. * * *

Riehle last contends that his sentence violates Blakely v. Washington, 124 S. Ct. 2531 (2004), reh’g denied. The State responds that Riehle has waived this issue for review by failing to object at the time of sentencing and that even if Riehle did not waive this issue, Blakely does not implicate Indiana’s sentencing scheme. We first observe that because Blakely was decided after Riehle was sentenced in this case, he has not waived this issue for review. See Williams v. State, 818 N.E.2d 970, 975 (Ind. Ct. App. 2004). In addition, we have previously determined that Blakely implicates our sentencing scheme. Strong v. State, 817 N.E.2d 256, 261 (Ind. Ct. App. 2004). * * *

Until our supreme court rules on the issue, however, the application of Apprendi, Blakely, and Booker to Indiana’s sentencing mechanism is still not entirely clear. Booker’s statement that “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,” id. at 750 (emphasis added), could be read to exempt Indiana from the reach of these cases because Indiana’s law does give judges discretion to select a sentence within a range. Unlike the Federal Sentencing Guidelines invalidated by Booker, Indiana does not have mandatory guidelines.

But more relevant to Indiana, Booker makes clear that when an increase in a defendant’s punishment is contingent on the finding of a fact other than a prior conviction that is not reflected in the jury’s verdict or admitted by the defendant, that fact must be found by a jury beyond a reasonable doubt. Id. at 748-49. Under Indiana law, a sentence may not be enhanced beyond the presumptive unless the trial court finds as a fact the presence of a statutory aggravator. Ind. Code § 35-50-2-3 (murder sentence cannot be enhanced beyond presumptive without finding aggravator); § 35-50-2-4 (same for Class A felony); § 35-50-2-5 (same for Class B felony); § 35-50-2-6 (same for Class C felony); § 35-50-2-7 (same for class D felony). Indiana’s sentencing scheme therefore is not discretionary as Booker uses the term. 125 S. Ct. at 750. Because a trial court cannot impose a sentence longer than the presumptive without finding a fact in the form of an aggravator, Booker requires that the aggravator be found by a jury unless it is reflected in the jury’s verdict or admitted by the defendant. * * *

The trial court then ordered three of these sentences to run consecutively,[See footnote] for an aggregate sentence of 108 years. In doing so, the trial court identified five aggravators * * *.

We note that in light of Riehle’s absence of a criminal history, the aggravator that Riehle is in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility does appear to implicate Blakely. Cf. Teeters, 817 N.E.2d at 279 (opining that the “in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility” aggravator does not implicate Blakely when it can be said to be derivative of the defendant’s criminal history). Thus, whether this is a proper aggravator is a jury question. Likewise, pursuant to Blakely, the remaining four aggravators must have been submitted to a jury and proved beyond a reasonable doubt, which was not done here. This then leaves no aggravators and two mitigators. Accordingly, we must remand this case for resentencing.
Affirmed in part and reversed and remanded in part.
CRONE, J., concurs.

RILEY, J., concurs in part and dissents in part with separate opinion. I respectfully dissent from Part V, the majority’s conclusion to remand the case for resentencing in light of Blakely v. Washingon * * * Furthermore, we are convinced that the Supreme Court’s recent opinion in United States v. Booker * * * does not alter the Blakely rule as it now applies in Indiana. * * *

Accordingly, we concluded in Krebs v. State, 816 N.E.2d 469, 475 (Ind. Ct. App. 2004), that it appeared that our trial courts no longer have discretion to sentence a criminal defendant to more than the presumptive sentence unless the defendant waives his right to a jury at sentencing, a jury first determines the existence of aggravating factors, or the defendant has a criminal history. * * *

Unlike the majority, I find that based upon the evidence before this court, the jury properly found the existence of the aggravating factor that Riehle would commit another crime. * * * However, I concur with the majority that the remaining four aggravators are invalid in light of Blakely. Nonetheless, if one or more aggravating circumstances cited by the trial court are found invalid on appeal, we must next decide whether the remaining circumstance or circumstances are sufficient to support the sentence imposed. * * * Even one valid aggravating circumstance is sufficient to support an enhancement of a sentence. When the sentencing court improperly applies an aggravating circumstance but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. * * *

Here, I identified one valid aggravator: the risk of committing a future crime. * * * Therefore, I find that the trial court did not err by imposing an enhanced sentence. Accordingly, I disagree with the result reached by the majority.
_____
We would note for purposes of remand that Blakely is not implicated where a trial court orders consecutive sentences. Cowens v. State, 817 N.E.2d 255, 255 (Ind. Ct. App. 2004).

Posted by Marcia Oddi on Tuesday, March 01, 2005
Posted to Indiana Decisions

Ind. Decisions - 7th Circuit posts four today

Williams, Eulah v. Lampe, John (SD Ill.) [6 pp.]

Eisencorp Inc v. Rocky Mountain Radar (WD Wis.) [10 pp.]

J.W. Peters Inc v. Bridge Structural Iron Workers Union 1 (ND Ill.) [20 pp.]

USA v. Lloyd, Mario (ND Il.) [6 pp.]

Posted by Marcia Oddi on Tuesday, March 01, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Court - Elkhart Superior Court judge Pfaff denies charges

The Elkhart Truth reports today, in a story by Trevor Wendzonka:

INDIANAPOLIS -- In a short reply to charges that could lead to his dismissal from the bench or disbarment, Judge Benjamin Pfaff denied allegations he gave false information to investigators about a confrontation with an 18-year-old man in December 2003.

The Elkhart Superior Court judge filed his response last week to the Indiana Commission on Judicial Qualifications' findings. The Supreme Court now will appoint three "masters" -- retired or current judges -- to conduct a public hearing on the charges of official misconduct.

No timetable for the case has been set. The Truth obtained the judge's response after county offices had closed Monday, and Pfaff's attorney could not be reached for comment.

"Judge Pfaff denies that he falsely represented the facts or circumstances surrounding this incident in such statements (to sheriff's department investigators and the special prosecutor)," according to the response. "... Judge Pfaff did not forcibly grab and restrain Bryan Schiltz, nor did he point a loaded firearm at his head. Judge Pfaff did not threaten Bryan Schiltz that he 'better talk or he's going to die' ... nor did he point a firearm at Schiltz for several minutes, as alleged."

The incident happened in a home along C.R. 9. The judge said he was looking for his then-runaway daughter, who later returned to him, and went to the home on Elkhart's north side to obtain information.

Whitley County's Matt Rentschler, the special prosecutor in the case, declared Pfaff was justified in his actions that night and no criminal charges were sought. More than a year after the incident, though, the state judicial oversight board concluded its interviews and filed charges with the Indiana Supreme Court.

Posted by Marcia Oddi on Tuesday, March 01, 2005
Posted to Indiana Courts

Law - U.S. Supreme Court today rules death penalty for those under 18 unconstitutional

SCOTUSblog.com is reporting here at 10:06 AM:

The Supreme Court ruled 5-4 on Tuesday that the death penalty "is a disproportionate punishment for juveniles," and thus it violates the Eighth Amendment to impose a death sentence on a youthful murderer who committed the crime before age 18. Today, the Court said, "society views juveniles as categorically less culpable than the average criminal."

While conceding that drawing the line against capital punishment at age 18 might be debatable, the Court said: "The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest."

Justice Anthony M. Kennedy announced the decision in Roper v. Simmons (docket 03-633). The case involved a Missourian, Christopher Simmons, who was 17 at the time of a crime that led to a death sentence.

Justice Kennedy's majority opinion in the 5-4 decision begins:
This case requires us to address, for the second time in a decade and a half, whether it is permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime. In Stanford v. Kentucky, 492 U. S. 361 (1989), a divided Court rejected the proposition that the Constitution bars capital punishment for juvenile offenders in this age group. We reconsider the question.
SCOTUSblog.com has links to the opinions of the various justices here.

Better still, Cornell's excellent Legal Information Institute now has posted all the opinions in Roper here.

Posted by Marcia Oddi on Tuesday, March 01, 2005
Posted to General Law Related

Law - U.S. Supreme Court to hear Ten Commandments cases tomorrow

The Evansville Courier& Press has a Scripps Howard News Service
story this morning that reports:

The U.S. Supreme Court will hear arguments Wednesday in a couple of cases that raise questions about whether Ten Commandment displays are an unconstitutional government endorsement of religion.

One of the cases originated in McCreary and Pulaski counties in southeastern Kentucky, where the American Civil Liberties Union sued after county officials posted framed copies of the Ten Commandments in the county courthouses.

The case will have impact on Gibson County, Ind., where a federal district judge ruled earlier this year for the removal of a Ten Commandment monument on the courthouse lawn. That judge's ruling was consistent with an earlier ruling by the 7th Circuit Court of Appeals ordering the removal of a similar monument in Elkhart, Ind. The ruling affected Wisconsin, Illinois and Indiana, which all fall within that circuit. Rep. John Hostettler, R-Ind., in February wrote a letter to President Bush asking Bush to intervene in a court decision and bar the Department of Justice and the U.S. Marshal's Service from enforcing the decision. Hostettler argues that the federal judiciary has no means to enforce its own opinion.

The larger Supreme Court case, however, focuses on the question of whether the Ten Commandments is an integral part of America's legal and cultural history and thus should be displayed on public property, or whether such displays amount to an inappropriate endorsement of a particular religion.

David Savage has a story in the LA Tmes today headed "High Court to Rule on 2 States' Displays of 10 Commandments." The cases are Van Orden vs. Perry and McCreary County, Ky., vs. ACLU. Access information about both cases here on Findlaw.com - scroll down to the March 2nd arguments.

Posted by Marcia Oddi on Tuesday, March 01, 2005
Posted to General Law Related

Ind. Gov't. - Daniels taps Clay sheriff for Indiana DNR post

"Daniels taps Clay sheriff for Indiana DNR post" reported the Terre Haute Tribune-Star yesterday:

Clay County Sheriff Robert Carter is resigning effective March 7 to assume the position of director of law enforcement for the Indiana Department of Natural Resources.

Gov. Mitch Daniels appointed Carter, 38, to the position under a recommendation by DNR Commissioner Kyle Hupfer.

"The governor knows Mr. Carter from the [gubernatorial election] campaign and Sheriff Carter was involved in getting sheriffs statewide organized to get information on public safety issues," said Jane Jankowski, spokeswoman for Daniels. * * *

As Clay County Sheriff, Carter earns $55,500. He will earn $82,000 as the DNR's top cop. He replaces Bruce Clear, appointed in 2001, who retired in December 2004. * * *

Carter is the third elected official from Clay County to be appointed to a state office by Gov. Daniels. Ernest E. Yelton, a former Clay County judge, was appointed director of the Indiana Gaming Commission and David Thomas, former Clay County prosecutor, was appointed Indiana's first inspector general.

Posted by Marcia Oddi on Tuesday, March 01, 2005
Posted to Indiana Government

Ind. Gov't. - Editorials today on legislative ethics and death penalty

The Indianapolis Star has a strong editorial today titled "Time to stop playing games with ethics: Gambling lobbyist ties to two legislators expose the intolerable weakness of ethics laws." The editorial concludes:

* * * Indiana puts no limit on gifts from lobbyists to legislators and for all practical purposes leaves the amounts open to speculation. "More than $100" and "more than $250" are all the elected official has to say. And of course it is left to the legislator himself to decide whether he might be unduly influenced by a freebie, a job, a business deal or -- as in the Frizzell case -- a charitable end run around the reporting laws.

Gov. Mitch Daniels, who has offered a modestly stiffened ethics law for non-legislative state employees, has yet to challenge the legislature's refusal to apply even those changes to itself. The latest revelations about coziness with vested interests cannot go unanswered by him. Daniels must denounce these links to a powerful lobby, and the general mind-set they reflect, if he is to prove true to his pledge to make ethics a top priority. He might even consider putting lobbying patrol on the to-do list of the inspector general whose post he wants to see created.

From the reaction so far to ethics proposals and ethics episodes, the entire GOP leadership, which ran for election on a platform of ridding state government of corruption, seems entirely too easy to please -- and too hopeful the boss, the Indiana taxpayer, is likewise.

The Evansville Courier& Press has an editorial today on the death penalty titled "Grave Decisions." Some quotes:
Indiana Gov. Mitch Daniels is facing an unenviable duty: Eight of 34 inmates on Indiana's death row could be executed this year, his first in office, and he holds the power of clemency. With that power, Daniels has in his hands a responsibility few of us would want. He has the power of last resort, to determine whether any of these inmates will live or die. He can grant clemency right up to the moment of execution. * * *

Daniels has said he believes the death penalty is appropriate in the "most heinous" cases, but his view is not without "reservations and conflicting sentiments." His general counsel, Steve Schulz, said one of the governor's concerns has to do with the guilt or innocence of death-row inmates. As a result, he told [reporter Maureen] Hayden, they are working to put into place a procedure designed to ensure there are no lingering questions of guilt. * * *

In view of Daniels' concerns about safeguarding the innocent, this might be an appropriate time for the new administration to take another look at this and other aspects of capital punishment in Indiana, especially given the high number of possible executions this year.

Posted by Marcia Oddi on Tuesday, March 01, 2005
Posted to Indiana Government

Ind. Law - Dems' threat of boycott, legislation deadline loom

"Dems' threat of boycott, legislation deadline loom: Key state bills could die without a vote by today." That is the headline to this story today in the Indianapolis Star , reported by Michele McNeil. Yesterday was the last day for a bill to pass second reading in its own House. So any bill that has not passed second reading is now dead for the session, presumably.

Today is the last day for a bill to pass third reading in its own house. Many bills remain on third reading. Later today you can view the House and Senate calanders for March 1. Currently they have not yet been updated from last evening.

The Star reports:

Today's agenda includes bills important to Democrats -- particularly measures championed by Mayor Bart Peterson. That includes a plan to merge parts of Indianapolis city and Marion County governments, and the one to help build the new stadium.

There are more bills Democrats don't like. Some they deem as anti-labor. One creates the post of inspector general, a position that reports to the governor and has prosecutor's powers; another would require voters to show a photo ID at the polls. * * *

Today is the deadline for the House and Senate to approve bills before they switch chambers. Bills that fail to pass can be resurrected in the final days of the legislative session, but it becomes more difficult. * * *

[Among the Senate bills up for vote is] Senate Bill 620, which stems from the ongoing problem of aging combined sewer systems. In heavy rains, such systems can allow untreated sewage to flow directly into rivers and streams. This bill would let communities meet lower water-quality standards during such storms.
* * *

One of the most politically difficult votes will likely be on a measure in the House to put Indiana on daylight saving time.

House Bill 1034 is sponsored by Rep. Gerry Torr, R-Carmel, who said he hopes he's got enough votes to pass it.

A sidebar to the Star story lists some other bills eligible for final passage today, including:
• Inspector general: House Bill 1002, sponsored by House Speaker Brian Bosma, R-Indianapolis, would toughen criminal penalties for public corruption and create an inspector general who could conduct criminal investigations into state matters.
• Judicial pay raise: House Bill 1777, sponsored by Rep. Ralph Foley, R-Martinsville, would raise court fees to give judges their first pay raises since 1997. Base pay for Supreme Court justices would increase from $115,000 to $143,195; for Court of Appeals judges from $110,000 to $139,951; and for trial court judges from $90,000 to $121,122.
• Jury duty: House Bill 1174, sponsored by Rep. Carolene Mays, D-Indianapolis, would eliminate automatic exemptions for seniors, veterinarians, Indianapolis Public Schools board members and licensed dentists, while keeping the exemption for state legislators.
• Methamphetamine: House Bill 1223, sponsored by Rep. Eric Koch, R-Bedford, would classify meth precursors ephedrine and pseudoephedrine as controlled substances.
• Phone company regulation: House Bill 1518, sponsored by Rep. Michael Murphy, R-Indianapolis, would prohibit the Indiana Utility Regulatory Commission from regulating basic local phone service after June 30, 2010.

Posted by Marcia Oddi on Tuesday, March 01, 2005
Posted to Indiana Law

Law - [Updated] Illinois Federal Judge's husband, mother found dead

The Chicago Tribune website is reporting this morning:

The federal judge whom white supremacist Matthew Hale attempted to have murdered found her husband and mother lying dead in her house when she returned home Monday night, police said.

Judge Joan H. Lefkow returned to her house in the 5200 block of North Lakewood Avenue after work and found the bodies of her husband, attorney Michael F. Lefkow and her mother, Donna Humphrey, lying in blood in the house, police said.

Detectives, U.S. Marshals and FBI agents rushed to the scene and were investigating the deaths as a "death investigation," police said. Other family members may also have been present when the bodies were discovered, neighbors said. * * *

Hale, the 33-year-old founder of the World Church of the Creator was arrested in January 2003 and charged with soliciting Judge Lefkow's murder a month after she had held him in contempt of court. Based largely on testimony from Hale's "security chief," a jury convicted Hale of soliciting the judge's murder in April 2004.

U.S. District Court Judge James Moody is scheduled to sentence Hale on April 6. Hale is currently being held at the Metropolitan Correctional Center in the South Loop.

Evidence in the case against Hale included an email he sent the security chief, Thomas Evola, asking for Lefkow's home address. The address was posted on a white supremacist web site.

In a recorded conversation played at the trial, Evola, who was an FBI informant, talked with Hale about Lefkow and asked, "We gonna exterminate that rat?"

Hale first came to prominence in 1999 as a white supremacist and head of the World Church of the Creator. Over the Independence Day weekend, former church member Benjamin Smith went on a shooting spree directed at racial minorities, killing two and wounding nine.

These 1999 shootings included one in Bloomington, Indiana where a male Korean-American who was leaving Sunday church services was killed. Earlier, in Skokie, Illinois, Ricky Byrdsong, former Northwestern University baskeball coach, an African-Amercian, was shot and killed. See this July 5, 1999 CNN story.

[Update 11 AM] "Victim, judge `very close'" is the title to this new Tribune story about Michael Lefkow. A quote:

Their lives changed sharply in 2003 when Matthew Hale, the 33-year-old founder of the World Church of the Creator, was charged with soliciting Judge Joan Lefkow's murder a month after she had held him in contempt of court on a separate civil suit.

After Hale's arrest, Lefkow, 61, chose to stay on as the judge over the lawsuit that had so engendered Hale's hatred. Despite the alleged death threats, the judge said removing herself from the case would only pass along Hale's hatred to another judge.

Posted by Marcia Oddi on Tuesday, March 01, 2005
Posted to General Law Related