Sunday, July 31, 2005
Law - Right to walk along Michigan's Lake Michigan shoreline
In a May 17, 2004 entry, the ILB reported on the controversial Michigan Court of Appeals decision, Glass v. Goeckel (5/13/04), that decided "Michigan property owners who live along the Great Lakes shoreline have exclusive access up to the water's edge".
A Sept. 14, 2004 ILB entry quotes from a Chicago Tribune article that the fight over access to the Great Lakes is playing out in Micgigan and Ohio courts. A selection:
While the public's right to the waters of the Great Lakes is unquestioned, beach access varies from state to state.A Feb. 28, 2005 South Bend Tribune story, quoted in this ILB entry, provided more information on the Michigan case, then awaiting decision by the Michigan Supreme Court.
Michigan law was unclear before Glass vs. Goeckel. Some jurisdictions enforced a water's-edge boundary, while open beachcombing was the informal rule in many locales. In Illinois and Wisconsin, the law is the same as what the Michigan court recently ruled: Walkers along private beaches are not trespassing as long as they keep their feet wet. Indiana allows public access up to the ordinary high-water mark of Lake Michigan.
In Ohio, Lake Erie cottage owners are suing the state Department of Natural Resources to end public ownership claims up to the high-water mark, or gain compensation for the state "taking" of beaches.
The Michigan Supreme Court issued its 119-page opinion on Friday, July 29th: Glass v. Goeckel.
Here is a report on the ruling from the Detroit Free Press. Some quotes:
Strolling along a Great Lakes beach is no crime, Michigan's Supreme Court ruled Friday in upholding the time-honored tradition of beach-walking.[Update 8/1/05] The Chicago Tribune has this story today. The lead: "People can stroll along Michigan's 3,200 miles of Great Lakes beaches whether owners of adjacent private property like it or not, the state Supreme Court has ruled."
The court, with five of seven justices fully agreeing, found that "walking the beach ....is inherent in the exercise of traditionally protected public rights."
The decision reverses a state Court of Appeals judgment that walking along the shoreline was trespassing. That ruling had stunned many Michiganders, for whom beach-walking is a long-standing tradition.
Now, its legality is certain. * * *
All seven justices agreed the public had the right to walk the beach. Five ruled the boundary was the ordinary high-water mark, loosely defined as "the point on the bank or the shore up to which the presence and action of the water is so continuous as to leave a distinct mark." Two -- Justices Stephen Markman and Robert Young Jr. -- said the beach-walker's domain should be confined to the area of shoreline commonly referred to as wet sand, which could be feet from the water's edge, depending on wind and wave conditions.
The decision was a comfort to generations of Michiganders who have enjoyed a tacit understanding that it is acceptable to walk Great Lakes shoreline as long as walkers stayed near the water's edge out of respect for waterfront landowners. * * *
The high court decision did not appear to address what activities other than strolling might be permitted along the shoreline strip, although it did state that beach-walking "remains subject to regulation as is any use of the public trust."
Pro beach-walking groups, including environmental organizations, joined Glass in the case, contending the shoreline is Great Lakes bottomland and belongs to Michigan's citizens.
Property-rights groups, some landowners and the state Chamber of Commerce backed the Goeckels, arguing waterfront property-owners' rights extend all the way to the water's edge, including the high-water mark and the wet sand.
Ind. Government - A look at the new state office of rural affairs
Pam Tharp of the Richomd Palladium-Item, has a story today about the new state Office of Rural Affairs. She explains:
When the former Indiana Department of Commerce was divided, two offices -- the Indiana Economic Development Corp. and the Office of Rural Affairs -- were created. The name change, though, emphasizes the opportunities the Daniels administration thinks are waiting for development in the state's rural areas. More than two-thirds, or 67, of Indiana's 92 counties, are considered rural counties.For more information, see the Office of Rural Affiars homepage, and this page showing details of the Office of Rural Affair's areas of service.
"If you can't hit another house from your house with a rock, it's rural," Pearson said.
[Joe] Pearson, former assistant commissioner of agriculture and Grant County farmer, will oversee the office's seven divisions: the Community Development Block Grant Program, High Speed Communications, Strategic Development, Indiana Main Street, Leadership Development, the Indiana Rural Development Council and Grants Management.
Former Randolph County commissioner Greg Beumer of Modoc will head up the Community Development Block Grant Program. Beumer formerly was a grant writer and administrator before joining the Indiana Department of Commerce several years ago.
Law - Ruling Sets Off Tug of War Over Private Property
SANTA CRUZ, Calif. - More than a month after the Supreme Court ruled that governments could take one person's property and give it to another in the name of public interest, the decision has set off a storm of legislative action and protest, as states have moved to protect homes and businesses from the expanded reach of eminent domain. * * *In a story published 7/12/05, the New London Connecticut paper, The Day, published a story (no longer available online) that began:
Far from clarifying government's ability to take private property, the 5-to-4 Supreme Court decision has set up a summer of scrutiny over a power that has been regularly used but little-discussed for decades.
"The intense reaction - this backlash - has caught a lot of people off guard," said Larry Morandi, who tracks land use developments for the National Conference of State Legislatures. * * *
The Fifth Amendment allows the taking of land for "public use" with "just compensation," and governments have long used the practice to build roads and schools and to allow utilities to run service lines. In its June 23 ruling regarding efforts by the City of New London, Conn., to condemn homes in an old part of town to make way for a private development, the Supreme Court said public use could mean something that brings a public benefit - like jobs or increased tax revenue.
But at the same time, the court invited states to tailor their own laws. While only one state, Delaware, has changed its law, most states are likely to have a proposed change by next year, Mr. Morandi said.
"The initial outcry after the court case was: Nobody's house is safe, we've got to do something now," he said. "But as more states take a look at this they will respond in some form, but they won't want to take away a valuable tool."
Hartford — State legislators declared a moratorium Monday on the use of eminent domain in Connecticut, saying no municipality — including New London — should go forward with any plans until they have revised the law to protect the rights of private homeowners.The Fort Wayne News Sentinel ran an editorial 6/28/05 (no longer available online) including these quotes:
“The New London case has forced our hand,” House Speaker James A. Amman, D-Milford, said at a press conference at the Legislative Office Building. “What we need is a law that considers economic development and offers homeowners some peace of mind. This legislature will act on eminent domain,the towns heading down this path should take note, and they should hold off on any plans.”
And while stopping short of saying they would prevent the city of New London from taking the homes of those people still living in the Fort Trumbull neighborhood, they did suggest it was a possibility.
“The legal case is over,” said Rep. Michael P. Lawlor, D-East Haven, co-chairman of the legislature's Judiciary Committee, “but towns in our state exist by virtue of state law; they don't have any independent powers, so theoretically we could tell them to stop if that's what we wanted to do. And I think since they're spending state money to do it, theoretically that's possible.
“The existence of the city of New London itself is at sufferance of the state government under our constitution, so yeah, that's theoretically possible.”
Gov. M. Jodi Rell issued a statement saying she supported the moratorium and urging the legislature to act without delay.
“This issue is the 21st-century equivalent of the Boston Tea Party: the government taking away the rights and liberties of property owners without giving them a voice,” Rell said. “But this time it is not a monarch wearing robes in England we are fighting; it is five robed justices at the Supreme Court in Washington.
“Home ownership is often referred to as ‘the American Dream.' Our homes are the places where we raise our families and build our lives. When government intrudes on our homes, it must have a defensible reason. In the New London case, the reason was not defensible.”
Thomas Londregan, the attorney for New London, was baffled that the state would disavow the use of eminent domain after it took the lead role in planning and funding the redevelopment of the Fort Trumbull neighborhood.
Londregan said the city, in fact, wanted to declare the neighborhood blighted before condemning the houses there. Although courts have said for half a century that governments can use eminent domain to clear blight, Londregan said the state insisted that New London take the houses for economic development. The city's reliance on the economic development statute spawned the case, Kelo v. New London, that the U.S. Supreme Court decided last month.
“The executive branch told New London it would only give the money for the project under the economic development statute, not the blight statute. Had the executive branch and the legislature allowed the city to proceed under the blight statute, there would be no issue of eminent domain today,” Londregan said. “The actions of the governor are mystifying.”
Lawmakers cautioned Monday that it was too early to determine what action the General Assembly might take.
“What's clear is that we cannot undo the Supreme Court case. It's also clear that we can change eminent domain going forward. I guess there would be some question of can we go and undo eminent domain procedures and takings that have already occurred or that are under way at the present? That, I imagine, would require a little more research,” said Senate President Pro Tem Donald E. Williams Jr., D-Brooklyn.
“We've got to figure that out,” Lawlor added. “We have to decide whether or not that's the right thing to do.”
It’s not quite that bad in Indiana. Officials are reluctant to use eminent domain and have frequently gone out of their way to avoid it. As Rob Young, president of the Fort Wayne-Allen County Economic Development Alliance, puts it, “The use of eminent domain needs to be a last resort.” It’s something needed in the economic-development toolbox, but “it should be used with all due care and as infrequently as possible.” Other development officials echo those sentiments.
And Hoosier property owners do have one thing going for them that Connecticut residents do not – a state requirement that condemned property actually be blighted. That’s not a guarantee against government overreaching, though. It’s hard to argue, for example, that Southtown Mall wasn’t blighted when it came into the city’s eminent-domain sights. But what about Belmont Beverage downtown, taken for a Grand Wayne-affiliated hotel that now might not even be built there?
“Their criteria for blight and mine are different,” says owner Thomas F. Druley. He says there has been talk of guidelines so that government “can’t just take what they want willy-nilly. But I don’t see that happening.” Furthermore, the “fair value” that’s supposed to be given for taken property is determined by the very people who take the property. They choose an appraiser who will lowball the property’s value, “and who am I going to get to get a better appraisal? These people don’t want to risk offending the city and never getting work from them again.”
State Rep. Dave Wolkins, R-Winona Lake, shares both Druley’s outrage and assessment of the “blighted” requirement in Indiana. “The law is so broad,” he believes, “that blight is whatever anybody wants to say it is.” Wolkins, at least, is in a position to do something about his outrage. He will be on an interim study committee, established by his bill in the last session of the General Assembly, to look into all aspects of eminent domain. He first tried to get eminent domain prohibited for private development (which eight states now do – Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington). That failed, so he tried to at least make things better for those whose property is taken – giving them, for example, 150 percent of the property’s appraised value. That failed, too, so he settled for the study committee.
Wolkins says he’s changed his mind about banning all economic-development condemnations (“I can see some cases where it might be needed”), and that’s surely right. If used sparingly and judiciously, it is a valuable revitalization mechanism. But he will push for better compensation and thinks tightening up the definition of blight is a must.
Ind. Government - Controversy in Town of Roseland
The South Bend Tribune Saturday carried this story by Nancy J. Sulok on efforts of the Concerned Citizens of Roseland to oust a couple who constitute the majority of the towen council. Some quotes:
ROSELAND -- Attorney Peter Agostino outlined several potential lawsuits Friday night that could be filed against Town Councilman David Snyder and perhaps his wife, Dorothy Snyder.
He spoke at the Clay Township Democratic Club at a meeting of the Concerned Citizens of Roseland. About 100 town residents and business owners attended.
Many town residents are unhappy with the Snyders, who constitute a majority of the three-member Town Council. Residents have complained that the Snyders are misusing and abusing their authority by issuing citations for alleged violations of town codes.
Agostino specified three issues that may be grounds for legal action:
 Free speech claims that are protected by the U.S. and Indiana Constitutions.
Lawsuits are being prepared, Agostino said, against David Snyder for his issuing of citations to residents and businessmen who have displayed anti-Snyder signs on property. Such signs are protected speech, the attorney said. * * *
 The removal of Charley Shields as Town Council president.
The council held a special meeting on July 20 to elect Dorothy Snyder as the president.Peter Agostino said the town ordinances do not allow for a midyear election, but stipulate that elections must be held in January.
Furthermore, he said, state law allows anyone who feels he has been usurped from office illegally to seek a legal remedy through the courts. Frank Agostino is preparing to file suit on those grounds on behalf of Shields, Peter said.
 A recall action.
Agostino said it is only partially true that Indiana does not have a recall procedure for elected officials. Both the Indiana Constitution and the Bill of Rights of the U.S. Constitution, he said, can be interpreted to allow for a recall.
The First Amendment of the U.S. Constitution, Peter Agostino said, allows citizens "to petition the government for a redress of grievances."
Article 1, Section 2 of the state constitution, he continued, gives citizens "an unalienable and indefeasible right to alter or reform their government in such manner as they may think proper." * * *
In addition to the three actions listed above, Agostino told the gathering of other legal actions that might be possible
Indiana law - When is a river "navigable"?
Frank Gray of the Fort Wayne Journal Gazette has a fascinating piece today on this question. Some quotes:
Practically no one in Mongo knows when or why it happened, but somewhere along the line the Pigeon River that flows past the town was listed as a non-navigable waterway.I checked the statutes and, sure enough, right there in the DNR laws is IC 14-29-1, which begins:
That doesn’t make a lot of sense to people like Larry Akree. He’s been renting canoes and kayaks to birdwatchers and others on the river for 25 years. If the river were non-navigable, people wouldn’t be able to use it for canoeing. It’s a lot more navigable than the Fawn River, which is classified as navigable, he says.
The classification wouldn’t seem to make a lot of difference. Practically no rivers in Indiana are used for transportation or commerce, so whether the river is regarded as navigable or not would be irrelevant, right?
It does make a difference, though, some LaGrange County residents say, and if they can get the river reclassified navigable, it will pave the way for many changes, and help eliminate friction between residents in Mongo and the Department of Natural Resources, friction that has been producing heat for years.
A few years ago, for example, frustration over use of a swimming hole on the river, a spot practically in the center of town where people had been swimming for more than 100 years, boiled over when the DNR posted no-swimming signs and threatened to ticket people who ignored them. The DNR explained that swimming was banned because the state could be liable if there were an accident.
A few years ago, the state approved a nuisance goose hunt, aimed at thinning out the geese that congregate in a wildlife preserve that runs along the river. The hunt lasts a couple of weeks starting Sept. 1, and during that period, the river is declared off limits to anyone but hunters.
The hunt has been going on for several years now, and it takes place right on top of the last holiday weekend of the summer, when people are having their last fling and Mongo is having festivals. It irritates residents that while they are banned from the river, practically no hunters use it for hunting purposes.
We asked the DNR about the difference between navigable and non-navigable waterways. What we found is that the entire issue is very complicated and few even in the DNR are familiar with it. The distinction goes back to 1816, when the state was founded, and just because a body is listed as navigable doesn’t mean it really is navigable, and just because it’s listed as non-navigable doesn’t necessarily mean that’s true.
Recently, though, residents ran across a law, passed in 1995, that they believe will bring an end to the friction between the town and the DNR once and for all. Declare the river navigable. The law says the commissioners of any county can declare a body of water navigable if at least 24 freeholders in the vicinity of a stream petition them to do so. * * *
[County commissioner] Bachman, however, says the proposal that the commissioners declare the waterway navigable isn’t necessarily that simple. Does the county then assume responsibility for the river when this happens, and if so, will the county have to spend money maintaining it? Bachman isn’t sure.
To [Angelo Pettiti, who lives about a mile from the Pigeon], it isn’t that complicated. “You don’t have to be a legal beagle to look at this law. It’s very plain English,” Pettiti says. The county assumes no responsibility it doesn’t want, and if the river needs to be maintained, there are people who already do that, who’ve been doing it for 25 years.
“This is an IC (Indiana code) regulation that they have to accept. They have no choice.”
Meanwhile, DNR officials aren’t sure it will make any difference.
Declaring a river navigable doesn’t change state regulations concerning a body of water.
Sec. 1. The board of county commissioners of each county may declare any stream or watercourse in the county navigable on the petition of at least twenty-four (24) freeholders of the county residing in the vicinity of the stream.
As added by P.L.1-1995, SEC.22.
Environment - Head of Improving Kids' Environment moves on
Indianapolis attorney Tom Neltner, head of Improving Kids' Environment, is taking a job in D.C., according to this story by Tammy Weber in the Saturday Indianapolis Star. Some quotes:
On Monday, Neltner, arguably one of Indiana's most respected environmental health champions, begins a new job as director of training and education at the National Center for Healthy Housing in Washington. He will translate new research on such issues as lead and mold into training programs and guidance for government agencies, industries and others.
Improving Kids' Environment, meanwhile, will continue its work under new Executive Director Janet McCabe, an air-quality expert who spent 12 years at the Indiana Department of Environmental Management, most recently as assistant commissioner of air quality, until being displaced by the Daniels administration in January. * * *
McCabe -- also a lawyer -- has been co-executive director at Improving Kids' Environment since June. She said she planned to continue the group's current work but might shift the focus to air pollution.
She is especially interested in how pollution from fine particles -- microscopic bits of soot and chemicals that can lodge deep in the lungs and lead to heart and breathing problems -- affects children's health. A big culprit is diesel emissions, and she hopes to help school districts and municipalities create programs to reduce pollution from diesel vehicles.
"This really seemed like an opportunity to use my expertise and try to continue to do some good things to improve the environment and public health."
Ind. Gov't. - Salaries of state agency heads examined
Niki Kelly of the Fort Wayne Journal Gazette has an interesting story today on the salaries of "some of Gov. Mitch Daniels key state agency leaders." A quote:
A comparison of key state agency leaders and officials in Daniels’ administration with their counterparts under Gov. Joe Kernan in 2004 show the new guard is earning marginally more a year.The story includes this list:
The difference can sometimes be attributed to a pay raise that went to all state employees in January, although Daniels’ chief of staff Harry Gonso said some adjustments were made in special cases.
“Given the fact that we were inheriting a bankrupt balance sheet, we had instructions not to exceed the previous administration’s salaries. That was the the governing call,” he said. “We did grant some relief in a couple of instances.”
• Paul Whitesell, Indiana State Police superintendent – $117,815(Notice that there are no women on the list.)
• David Adams, Public Employees’ Retirement Fund executive director – $118,750
• Harry Gonso, Gov. Daniels’ chief of staff – $108,082
• Ernest Yelton, Indiana Gaming Commission executive director – $111,852
• Mitch Roob, Family and Social Services Administration secretary – $108,000
• Chuck Schalliol, Office of Management and Budget director – $110,000
• David Donahue, Department of Correction commissioner – $102,000
• Joel Silverman, Bureau of Motor Vehicles commissioner – $100,000
• Kyle Hupfer, Department of Natural Resources director – $96,330
• Thomas Easterly, Department of Enviromental Management commissioner – $96,000
• Thomas Sharp, Department of Transportation commissioner – $96,000
Evansville settling John Blair lawsuit
Maureen Hayden of the Evansville Courier& Press reports here today that:
The city of Evansville has apparently reached a settlement with a local political activist who sued the city after he was arrested outside a 2002 political fundraiser featuring Vice President Dick Cheney.For earlier ILB entries on this dispute, see 3/18/05 (Federal Judge McKinney rules for environmental activist); 3/19/05 (More on "Federal Judge McKinney rules for environmental activist"); and 4/11/05 (City to contest 'no protest zone' ruling).
The financial agreement comes on the heels of federal court rulings that found city police violated protester John Blair's right to free speech when they arrested him after he entered a "no-protest zone." The zone was set up by Secret Service agents during Cheney's visit to Evansville to raise money for Republican Rep. John Hostettler. The rulings said Blair was entitled to monetary damages for his wrongful arrest.
Just how much money he'll get is unknown. The agreement is confidential and the city's insurance carrier at the time of the arrest is expected to pay the settlement costs. According to court records, the confidential agreement between the city and Blair was reached in late June, about a month after city officials publicly vowed not to settle the case. * * *
In his court ruling in the case in March, U.S. District Judge Larry J. McKinney found it was the size, not the existence of a no-protest zone that was the problem. McKinney found the no-protest zone mandated by the Secret Service was unreasonably large, went far beyond what was required to provide protection for Cheney, and appeared to be designed with the intent of keeping protesters from being heard or seen by Cheney during his visit to Evansville. Blair was arrested and charged with disorderly conduct when he ntered the no-protest zone and silently stood across the street from The Centre holding a sign that read "Cheney, 19th Century Energy Man." The charges against Blair were later dropped.
Blair and the Indiana Civil Liberties Union alleged police violated Blair's First Amendment rights by ordering him out of the zone and then arresting him when he questioned their right to do so. A federal appeals court upheld McKinney's ruling in May.
Federal Judge Larry McKinney's 35-page ruling in Blair v. City of Evansville (3/17/05) is available here.
According to the 7th Circuit site re City of Evansville v. Blair, the City's petition for permission to appeal was denied by Circuit Judges John L.Coffey, Frank H. Easterbrook, Circuit Judge, and Ann C. Williams on 5/11/05.
Saturday, July 30, 2005
Indiana Law Blog featured in Indiana Lawyer
This issue (July 27-August 9, 2005) of the Indiana Lawyer (not available online) has a kind of "dual focus" article by reporter Abigail Johnson, the first part (beginning on page 3) fitting well under the article's headline, "Seminar to address blogging pitfalls." (The seminar took place July 28.) The second part (on page 32) is about yours truly and The Indiana Law Blog; essentially a nice interview that begins: "Marcia Oddi was a blogging pioneer in the Indiana legal community."
Friday, July 29, 2005
Ind. Government - Inspector general investigation of Governor's RV use
Jennifer Whitson of the Evansville Courier& Press reported Wednesday, in a story headed "Probe of Daniels' RV1 use near completion," that:
INDIANAPOLIS - The Indiana inspector general's office has moved quickly to investigate Gov. Mitch Daniels' use of RV1 at a political fundraiser and may wrap up the probe soon.Ms. Whitson's first story on the RV use was published 7/20/05, folllowed by this 7/22/05 story headed "Daniels' RV hits hornet's nest" and this 7/24/05 story headlined "Daniels calls RV1 gripe a 'cheap shot'".
Maurice "Bud" Allcron, the investigator assigned to the complaint, said the probe has been ongoing since the publication of a July 20 Courier & Press article that mentioned the presence of RV1 at a Vincennes, Ind., fund-raiser for freshman Republican Rep. Troy Woodruff. Allcron said he was working to finish the investigation Tuesday.
Access the minimal Indiana inspector general website here.
Ind. Decisions - Court nixes hospital stay for juveniles
"Court nixes hospital stay" is the headline today to a brief AP story carried in the Indianapolis Star:
A St. Joseph County court overstepped its bounds when it ordered Larue D. Carter Memorial Hospital in Indianapolis, a state mental hospital, to accept three juveniles in need of psychiatric care, the Indiana Court of Appeals has ruled.The decision was IN THE MATTERS OF R.L.H., A.D., and C.L.B., each child alleged to be a delinquent child, dated 7/26/05. Judge Crone wrote the opinion, Judge Darden concurred, and Judge Mathias concurred with opinion, which I quote here in full:
And one member of the three-judge panel found that state resources were "woefully inadequate" to help troubled youths.
The appeal by the Indiana Family and Social Services Administration's Department of Mental Health and Addiction stemmed from three cases in St. Joseph County Probate Court, which also handles juvenile proceedings.
The three young people -- ages 10, 12 and 16 -- underwent repeated short-term stays in private mental health centers and juvenile detention after they were adjudged delinquent for offenses that would be felonies if committed by adults, according to court records.
I write to emphasize the understandable exasperation every trial judge feels when confronted with a wait of several months to admit a juvenile in desperate need of psychiatric services to Larue D. Carter Hospital. Insult is added to this injury when, at the end of that wait, a Carter representative informs the court that no bed is yet available.The Court of Appeals decision distinguishes last year's ruling by the Indiana Supreme Court, In the Matter of K.G., D.G. D.C.B. and J.J.S. (5/20/04 IndSCt) (discussed in this ILB 6/2/04 entry, headed "Recent Indiana Supreme Court ruling has child welfare officials scrambling"), which reversed a ruling of then-Marion County juvenile court judge James W. Payne (now heading the new Indiana Department of Child Services -- see ILB entries on the appointment, from early December, 2004, here and here).
The trial judge’s experience in this case is repeated on an almost daily basis in a courtroom somewhere in Indiana. It is an extremely sad reminder of the real, human cost of prioritization of limited budget resources.
Larue D. Carter Hospital is one of only three state hospitals able to meet the psychiatric needs of children less than 13 years of age and adolescents aged 13 to 18, whose families cannot afford private hospitalization. The other two state hospitals are the Richmond State Hospital and the Evansville Psychiatric Children’s Center. Carter has 42 beds available to children and adolescents. Richmond has 20 beds, available only to male adolescents. Evansville has 28 beds available only to children. Between these three hospitals, only 90 beds are available to serve the uninsured and indigent psychiatric needs of the more than 1,000,000 juveniles in Indiana. It doesn’t require higher math or an expert’s training to know that these resources are woefully inadequate to the task.
So, the trial judge in this case did what Indiana’s trial judges are often called upon to do: attempt to meet critical human needs by stretching resources, cajoling providers and making referrals to less-than-optimal, temporary alternatives, all while they wait for a bed to open for a hurting child. Against this background, the trial judge’s actions were understandable but not within his jurisdiction.
Ind. Decisions - Transfer list for week ending July 29, 2005
Here is the Indiana Supreme Court's transfer list for the week ending July 29, 2005.
For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column
Attorney general Carter appoints state's first solicitor general
According to this story today by Kevin Rader on the WTHR 13 website, Attorney General Steve Carter has created a new office of solicitor general and named attorney Thomas Fisher as the first to fill that position. A quote:
Indianapolis, July 28 - Indiana Attorney General Steve Carter made an announcement Thursday. "Today we come here to recognize that official, Thomas Fisher, as the state's first solicitor general."I was unable to find information about this appointment on the AG's somewhat limited website, but did find the press release quoted in full here at the Inside Indiana Business site. Some quotes:
As such Fisher will handle constitutional challenges as well as other cases of vital interest to state government.
Indianapolis - Attorney General Steve Carter has named Special Counsel Thomas M. Fisher to the new position of Solicitor General. The solicitor general will be assigned specific cases of constitutional challenges as well as other cases with issues of vital interest to state government. The solicitor general will also review and make recommendations to the Attorney General on the state's participation in filing or signing amicus curiae, or "friend of the court," briefs.Here is an August 16, 2003 ILB entry (interestingly titled "A Solicitor General for Indiana?") on the "increasingly popular concept of the state solicitor general." It includes quotes from a still available 2003 Tony Mauro article headlined: "Stating Their Case: Lawyers with hopes of on appellate career are increasingly taking jobs as state solicitors." A few quotes from the article:
"Tom has a thoughtful, thorough approach to litigation that has served our state well over the past several years as special counsel," Attorney General Carter said. "The complex nature of constitutional challenges and other cases against the state require a dedicated individual with in-depth knowledge and experience with such challenges. That person is Tom. His excellent record before the Indiana and United States Supreme Courts is invaluable as we continue to seek methods and processes to enhance the state's legal arguments and decision making."
The solicitor general will be responsible for handling cases before the Supreme Court of the United States and will consult with the appellate division of the Attorney General's Office concerning civil appellate case strategy. It is anticipated that this new focus and organizational structure will provide the attorney general with a more comprehensive and coordinated legal policy review. It is also the first of several restructuring initiatives Carter has planned for the office during his second term. * * * Indiana joins 30 other states that have the position of solicitor general.
"Nationally, the position of SG has expanded dramatically. It's a great attraction for young lawyers who want to get out there and actually argue cases." Cruz will be handling as many as three Supreme Court cases in the upcoming term, and arguing one or more.
While notable in itself, the law clerk trend is a telling sign of another important development in the appellate landscape: the increasing number, allure and prestige of state solicitor generalships. Private law firms and the U.S. solicitor general's office are no longer viewed as the only springboards to top-notch appellate experiences. And the states, with increasing clout and legal savvy, are taking advantage of the new talent knocking on their doors.
Fully 29 states now have their own SGs, up from eight only 15 years ago. California recently joined the list with its first SG, Manuel Medeiros.
"Every year we add a few, it seems," says Missouri's SG, James Layton, author of a recent law review article on the rise of state SGs.
States have long had appellate section chiefs who specialized in state and federal appeals, he notes. But by moving to the solicitor general title and model, states are trying to increase the professionalism and quality of the work. "It gives the attorney general a sort of a legal scholar on staff, typically someone who did not work in his or her campaign, someone who might think differently from the other lawyers," Layton says.
Friday, July 22, 2005
Ind. Decisions - Transfer list for week ending July 22, 2005
Here is the Indiana Supreme Court's transfer list for the week ending July 22, 2005. Two-thirds of the cases on the list today were granted transfer.
For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column
Friday, July 15, 2005
Ind. Decisions - Transfer list for week ending July 15, 2005
Here is the Indiana Supreme Court's transfer list for the week ending July 15, 2005. Today's list includes three transfer grants.
For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column
Ind. Decisions: Still More on the Court of Appeals' "not-for-publication" opinions
I was delighted to receive a note on yesterday's "not-for-publication" posting from George T. Patton, Jr., Bose McKinney & Evans LLP, which I reproduce with his permission:
Marcia, In response to your post about not-for-publication opinions, the 2004 Annual Report of the Indiana Court of Appeals shows that 27.1% of decisions last year were published, a figure some distance from what you ventured. Here is a link to the Report and the information is on page 4, along with each individual appellate judge's publication percentage.In my post yesterday (see immediately below), I estimated that "2 out of 5" Court of Appeals opinions are classified as not-for-publication. The court report, as George points out, indicates that more than 7 out of 10 Court of Appeals opinions are classified as not-for-publication.
My own view generally favors web availability of all decisions. Also, I tend to lean toward allowing citation to such decisions knowing that there is usually a published opinion making the same point. The Indiana Court of Appeals cannot foresee at the time of deciding whether to publish how some new wrinkle of law may develop over time out of what seems to be settled law. That said, if the rule changed, I would not plan on spending much time reading such decisions because the Court of Appeals mostly get the publication question right.
Wednesday, July 13, 2005
Ind. Decisions: More on the Court of Appeals' "not-for-publication" opinions
I've written a number of times in the past about this, most recently on April 30th of this year, in one of my last columns, when I included among my "disappointments":
The Unavailability of Court of Appeals Not-for-Publication DecisionsHoward Bashman of How Appealing has been on this issue from the beginning. He has written about the federal system, where the issue is not the unavailability of "unpublished" opinions -- they are available. This issue in the federal system is whether these opinions should be precedential.
Two concepts here need to be distinguished: (1) unpublished, and (2) non-precedential.
In the federal court system, "unpublished" no longer means unindexed and generally unavailable to the public. The question remaining in the federal system is whether the rules should be changed to allow these decisions to be cited -- i.e. to have precedential value.
In Indiana, the Court of Appeals panel issuing an opinion may designate it "not-for-publication." Because this large body of decisions is both unindexed and generally unavailable, the question of whether or not a particular NFP decision should have precedential value is pretty much a non-issue -- no one outside the court system and the parties to the case generally knows about it (although paper copies of the opinion are available if one asks for the case by name).
I can only estimate how many of the opinions issued by the Court of Appeals are NFP. I'd venture 2 out of 5. I feel strongly, as I've written several times in the past, that this workproduct of the court should be made available to the public, even if it may not be cited.
I am resisting the temptation to go on at length, but refer those interested to this ILB entry from Feb. 21, 2004. Scroll down to the paragraph that begins: "As reported by Howard Bashman's How Appealing ..." [More: See also this May 19, 2003 ILB entry.]
At the state court level, it turns out that Bashman's home state, Pennsylvania, has a similar situation to that in Indiana. I highly recommend to you Howard Bashman's article, just posted today, but dated June 13th, and titled: "In The Quest For Access To Non–Precedential Decisions, Don't Overlook The Possibility Of A Legislative Solution." The article begins:
The May 23, 2005 issue of Pennsylvania Law Weekly, a sister publication of The Legal Intelligencer, contained a front page article headlined "A Thirst for Case Law: Practitioners favor posting unpublished memorandum decisions on court Web sites." The article noted that while attorneys and law professors generally seem to favor online access to the non–precedential rulings of the Superior Court of Pennsylvania, that Court's judges appear to remain strongly opposed to such access.In Indiana, as noted earlier, opinions designated by the Court of Appeals panel as "not-for-publication" are neither generally available nor citeable. But they are public documents. Why should they not be made available online, along with the other rulings of the Court of Appeals?
Of course, the opinions that the Superior Court of Pennsylvania issues -- whether or not designated as precedential -- are governmental public records that are available for review at the court's headquarters. But at present, as in the past, non–precedential Pennsylvania Superior Court decisions are not readily available for review because the court does not post them on the internet nor are the decisions available on Westlaw or Lexis. By contrast, the Superior Court does make its precedential opinions available on the internet and over Westlaw and Lexis.
The debate over non–precedential appellate rulings involves some difficult questions, chief among them whether appellate courts should be allowed to designate any of their rulings as non–precedential and whether appellate courts act properly in prohibiting citation to non–precedential rulings. By comparison, the issue of public access to non–precedential opinions is much less controversial. [my emphasis]
Indiana Law Blog hijacked!
While doing a google search today, I got a return for "The Indiana Law Blog." However, the link provided was unfamiliar. I clicked and, sure enough, there was the totally current Indiana Law Blog, but within a frame displaying various ads.
Hijacked! And there was no way to access the hijacker. The main domain was to a provider of "anonymous" emails and sites.
All I can say is, the hijacker does not have my authorization, and I consider this use to be theft.
To my readers: Please access the Indiana Law Blog via its domain: indianalawblog.com.
Friday, July 08, 2005
Indiana Law Blog status
FYI: If you haven't checked in for a while, I stopped updating the Indiana Law Blog the first of May. Here is the April 21st, 2005 announcement. For more, including kind words from some long-time readers, see here.
But I will continue to post the Indiana Supreme Court transfer lists each week, generally on Friday afternoons.
I'm writing this on July 1, after two months of not blogging. I miss it, but could not afford to spend the two to three hours a day I was devoting to it. However, the blog was very popular and even now continues to receive many hundreds of hits a week. I would happily revive the Indiana Law Blog, bigger and better, if I found a firm or company to underwrite the effort.
Meanwhile, if you need legal research, writing or publishing, specialized databases, web solutions, or a special project, check with me. Take a look at the last paragraph here for more information.
Finally, look for my new monthly column in the ISBA's Res Gestae, beginning with the September issue.
Ind. Decisions - No transfer list for week ending July 8, 2005
There is no transfer list again this week.
Friday, July 01, 2005
Ind. Decisions - No transfer list for week ending July 1, 2005
There is no transfer list this week.