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Wednesday, August 31, 2005

Ind. Courts - More on Judge Pfaff removal

Updating yesterday's ILB entry re Elkhart Superior Court Judge Benjamin Pfaff, the Elkhart Truth today has a strong editorial titled "Judge should step aside." Some quotes:

Pfaff's credibility as a Superior Court judge was damaged by the original incident in December 2003, but now it is gone. Although both he and the attorneys for the Indiana Commission on Judicial Qualifications still have time to respond before the Supreme Court makes its final decision, it would be best for this community if Pfaff resigned immediately.

The judges found "Judge Pfaff's behavior .... demonstrated a pattern of improper activity," according to their findings of fact released Monday.

They found he "... did not work within the system in the search and recovery of his missing daughter, electing instead of take matters into this own hands. ..."

"Judge Pfaff ... did not allow law enforcement to do its job."

The judges also pointed out that Pfaff showed no remorse for his misconduct and that he was not truthful about confrontations which occurred on Dec. 8, 2003, and that he lied about the occupants of a home having used drugs that day, "maligning the reputation of the occupants therein."

In addition, he also turned on his ex-wife in a statement. "Judge Pfaff took painstaking efforts in one of his statements to discredit the previous statements made by his ex-wife and make her appear to be lying in some grand scheme to discredit him," the judges said. "The Masters were not impressed with this seemingly underhanded and vengeful attempt to discredit the testimony of his ex-wife," whom they said appeared reluctant to testify against Pfaff.

Vengeful. Underhanded. Not truthful.

Those are not the qualities fitting of a judge. This is disgraceful conduct.

Posted by Marcia Oddi on Wednesday, August 31, 2005
Posted to Indiana Courts

Ind. Law - Public access to police records stymied by Evansville union contract; access to Public Counselor informal opinions

The Evansville Courier& Press has two stories on this public access issue today. The first, by Jimmy Nesbitt, is headlined "Man who sued officer still wants personnel file." Some quotes:

When Dan Hudson sued an Evansville police officer for allegedly holding him against his will, he expected to have access to the officer's disciplinary record. Disciplinary actions taken against city employees are public record. The Evansville Courier & Press requested copies of the records and received 16 pages of records from the Police Merit Commission. The documents showed Officer Brett Worthington was suspended five times between January 2002 and February 2005. The documents included the lengths of each suspension, but did not explain them. The city didn't provide additional records because of its contract with the police union.

"When you file a lawsuit against a police officer ... politics seem to interfere with justice," Hudson said. Hudson, who has fired his lawyer and is representing himself, got the disciplinary records through federal court proceedings. Worthington was suspended for several minor violations, including taking a long lunch break and "wearing an unauthorized uniform while working at a private business," according to a personnel order. None of the suspensions mentioned any use of excessive force. Hudson is still seeking Worthington's personnel file, which he says would include any unresolved complaints of abuse from the public. Hudson said City Attorney David Jones told him he could not release the records without permission from the Fraternal Order of Police.

The second, by Jennifer Whitson, is headlined "Public access to be decided." Some quotes:
INDIANAPOLIS - The city of Evansville's contract with its police officers keeps the public from learning details of disciplinary actions against officers.

The city signed the contract with the Fraternal Order of Police, prohibiting the release of any information from an officer's personnel file without permission from the officer. This would include the details behind why an officer was fired or suspended.

The state's Open Records Law requires the release of such information, according to Steve Key, counsel for government affairs with the Hoosier State Press Association.

"You can't trump state law with a contract provision," Key said. The state's public access counselor now will decide whether the public and the Courier & Press have the right to know why police officers are disciplined.

If the counselor rules that state law obligates the disclosure, a portion of the contract that the city negotiated with the police would be invalidated. The city of Evansville, the Fraternal Order of Police Lodge 73 and the Courier & Press together sent an informal inquiry to Public Access Counselor Karen T. Davis on Monday, asking her to resolve a dispute stemming from the newspaper's request for the disciplinary record of an officer. All parties have agreed to abide by her decision and not sue each other if Davis rules against their position. * * *

The contract, signed by Weinzapfel and approved by the City Council, states that not only will the city not disclose personnel records without an officer's consent, it is obligated to fight any court subpoena for the records.

Davis, who will decide the issue, said state law is clear that the "actual basis" behind any public employee's suspension or dismissal must be released. She said her office had not yet received the informal inquiry. But from a brief description of the facts, she said the law is clear.

"It sounds to me like (the city of Evansville) hasn't turned over the needed information," Davis said.

Police in South Bend, Fort Wayne and Indianapolis all regularly turn over basic details of an officer's discipline, including what behavior triggered the action, according to local media outlets. The Indiana State Police also regularly follows a similar procedure. [emphasis added]

Note that I have highlighted the phrase "informal inquiry." I did this because I have an issue with the Public Access Counselor's office.

The Counselor's website contains the agency's "Advisory Opinions Issued in Response to Formal Complaints (Ind. Code §5-14-5)" going back to 1998. They are even searchable. But the request in the above-story, and in fact the requests posed to the Counselor by most newspapers, and perhaps others, are termed "informal inquiries" and result in the issuance of "informal opinions." These are, by all rights, public documents.

But they are NOT available online. Not even a list of them is available, so that you don't have enough information to ask to see a copy of an informal opinion. The informal opinions are also not listed in the annual reports.

I had some e-mail correspondence with Counselor Davis about this earlier this year. On April 6, 2005, I wrote:

I have a question about the PAC's "informal opinions." I know that you publish your Advisory Opinions online. But you also issue informal opinions, such as the recent one to the NWI Times on the IEDC. My question is - how is the public know to that these informal opinions exist (i.e. do you maintain them, or a list of them, online?) and how can the informal opinions themselves be readily accessed?
Ms. Davis responded:
The public access counselor does not currently maintain a list of our written informal opinions, either on line or in the office. Our written informal opinions are issued in letters and in e-mail. They are all public records, and if identifying information is given, we can pull one and make it available. In the future, I hope to put some of the informal inquiry responses that involve letter responses on the website.
I wrote back:
Thanks for your prompt response, but I am disappointed. This may present the same public access problem I've seen for years with other agencies. For instance, a number of years back the IDEM office of enforcement had thousands of settlement agreements that were public records, but settlements were not announced, meaning you didn't know to ask for one unless you knew the name of the respondent. After many requests from the environmental bar, they started putting out a monthly list (which might be considered an "index"), and then later started making all settlements available in an online database.

Most people are, I think, unaware that you issue written informal opinions. Those that are aware that such opinions exist don't know any specifics (i.e. identifying details) and so are unable to make a request for those that may be of interest, or even may bear on their own situation.

My request would be that the PAC at a minimum publish online a timely and complete index of all your letter/e-mail informal opinions. This would also give a better picture of the number of inquiries you handle.
Ms. Davis responded in April that that was an excellent idea.

Posted by Marcia Oddi on Wednesday, August 31, 2005
Posted to Indiana Law

Ind. Law - Questions prevail during session on living wills

The Louisville Courier Journal's Lesley Stedman Weidenbener reports on yesterday's meeting of the legislature's Probate Code Study Commission. Some quotes:

[Sen. Joe Zakas, R-Granger]said members believe it's time for a review, especially in the wake of the case of Terri Schiavo, a disabled Florida woman who died this year after her husband won a long legal battle to have her feeding tube removed. "It's worthwhile that we take a look at our existing law," Zakas said.

A thorough debate won't take place until the commission's Oct. 6 meeting. But the group started the discussion yesterday by raising a number of questions about living wills, which allow people to direct doctors to either provide or withhold nutrition and hydration in cases involving terminal illness. Among them:

Could a living will be used to direct care if a patient is in a persistent vegetative state, a condition in which the brain has lost significant neurological function?

What takes precedence -- the instructions in a living will signed by a patient or direction from a health-care representative who has been appointed in writing by the patient?

Is a living will needed at all if a patient has appointed a health-care representative?

The commission -- a group that includes lawmakers and lawyers -- didn't get to the answers of those questions yesterday, although members had some initial discussion. * * *

Jeff Kobb, an attorney representing the probate section of the Indiana Bar Association, said most lawyers prefer the appointment of a health-care representative to a living will. And he said the representative should trump the will.

"Life-saving techniques may change, and a patient may want some and not others. A living will always has been and always will be very limited," Kobb said. "It's best to go with a flexible document where you pick someone you know to make decisions for you."

Posted by Marcia Oddi on Wednesday, August 31, 2005
Posted to Indiana Law

Ind. Gov't, - No, the BMV is not a merit agency

The Indianapolis Star today has a story by Mary Beth Schneider on how Joe Silverman has hired 24 past Galyans workers at the Bureau of Motor Vehicles. Some quotes:

Bureau of Motor Vehicles Commissioner Joel Silverman told a panel of Indiana lawmakers Tuesday he has hired 24 former employees of the now-defunct sporting goods retailer he used to run.

Ten of those openings came when Silverman either fired or reassigned state employees.

Silverman defended the hirings before a House-Senate committee investigating his stewardship of the Bureau of Motor Vehicles. * * *

In a computerized presentation, Silverman said 14 of the workers were hired to fill existing vacancies, and that in nine of the 10 other jobs filled, the positions became available when state workers were fired. The 10th was a transfer.

Of those 10, five work in information technology; four are in branch or program management; and one is an administrative assistant to Silverman.

"It's much better to be working with somebody you know has done a good job in the past," Silverman said.

They are better-educated than the employees they replaced, he said, and in most cases are earning lower salaries.

Silverman said that as a group, the 10 make $3,542 less than the people they replaced and have 16 more years of post-secondary education.

In addition, he said, seven took substantial pay cuts to work for state government. One person's pay dropped by $50,000.

Here is the agenda from the August 30th meeting. It was in the Senate Chambers, but I don't know if it was watchable online or not.

Posted by Marcia Oddi on Wednesday, August 31, 2005
Posted to Indiana Government

Tuesday, August 30, 2005

Ind. Courts - Panel calls for Judge Pfaff's removal

The Indianapolis Star website this morning posted an AP story out of Elkhart that reports:

A panel of judges has recommended that the Indiana Supreme Court remove from office an Elkhart County judge who allegedly pointed a handgun at an 18-year-old in 2003 while looking for his runaway teenage daughter.

The state Supreme Court appointed the panel of three judges to hear the disciplinary case against Elkhart Superior Court Judge Benjamin Pfaff.

In a report filed Monday, the panel said Pfaff should be removed from office because of the dishonor he brought upon the Indiana judiciary, the severity of his misconduct and his false statements.

The state commission on judicial qualifications and Pfaff have a chance to file responses to the report with the Supreme Court before it rules on the case, The Truth newspaper reported.

Here is the story from the Elkhart Truth, reported by Justin Leighty.

For earlier ILB postings on Judge Pfaff, see this 8/17/05 entry.

[More] And here is a story by Martin DeAgostino from today's South Bend Tribune.

Posted by Marcia Oddi on Tuesday, August 30, 2005
Posted to Indiana Courts

Ind. Decisions - Suspended player seeks to re-enroll at Purdue

"Suspended player seeks to re-enroll at Purdue" is the headline to this story in the Sports Section of today's Indianapolis Star. Some quotes:

The starting lineup for Purdue's football season opener against Akron on Sept. 10 might be determined during a hearing today in a Lafayette, Ind., courtroom.

That's where suspended guard Uche Nwaneri will ask a Tippecanoe County Superior Court judge for a restraining order that would allow him to re-enroll at Purdue and rejoin the team until a trial is held. Nwaneri is not seeking monetary damages.

"We just think he was not fairly treated by the university," said Courtney B. Justice, Nwaneri's attorney. "In constitutional terms, there was denial of equal protection under the law."

Nwaneri, who started all 12 games last season, was suspended for the fall semester by Purdue executive associate dean of students Steve Akers following a July altercation with former teammate Ryan Noblet, who has since transferred to Arkansas.

Akers' decision was upheld last week by the eight-member Campus Appeal Board, which is composed of Purdue students, staff and faculty. * * *

Any disciplinary action should have been handled by coach Joe Tiller, not Akers, Justice said. Tiller has consistently said he supports Nwaneri and he could return to the team if re-instated to school. * * *

Tippecanoe County prosecutor Jerry Bean has not released the incident report while he decides whether to file criminal charges. No arrests were made and no charges had been filed as of Monday night.

The suit alleges that Noblet started the altercation and lunged at Nwaneri when "Uche, in a reasonable attempt to protect himself, struck Noblet, accidentally fracturing his jaw."

The lawsuit stated Nwaneri gave a statement to Purdue police July 15 at its headquarters. The suit alleges he later returned to ask for a police report, but a detective threatened him, accused him of lying and tried to coerce him into a fight.

Akers informed Nwaneri on July 28 that he was suspended for the semester because he was guilty of "battering Ryan Noblet, resulting in serious bodily injury," the suit said.

It also alleges Nwaneri was not allowed to use an attorney to argue his case before the committee. University rules prohibit students from doing so.

"We were gagged," said Justice, who was allowed to attend the hearing. "He was effectively denied the most important civil right of all, which is the right to a lawyer."

The Lafayette Journal & Courier has this story, by Tanya Brown. Some quotes:
Uche Nwaneri has challenged the finality of the Campus Appeals Board at Purdue University, asking a judge to order him reinstated immediately as a student and as starting left guard for the football team.

A preliminary hearing is scheduled for 9 this morning before Judge Don Johnson in Tippecanoe Superior Court 1. * * *

The lawsuit also alleges that Sleeth [Cathy Sleeth, senior assistant to the Office of Admissions and chairwoman of the Campus Appeals Board], in her capacity as chair of the appeals hearing, acted in a biased manner by repeatedly interrupting Nwaneri as he attempted to represent himself and praising Akers' character and decision to suspend Nwaneri.

Justice said Nwaneri was denied due process of law at the appeals hearing, as Sleeth's comments potentially biased the staff, faculty and students hearing the case against him.

Further, Justice said he was not allowed to speak or intercede in the proceedings on behalf of his client, except to whisper advice when possible.

"When your lawyer can't speak, it makes it an ineffective assistance of counsel," Justice said. "We were really shocked at the conduct of the chairman of the appeals board." * * *

The lawsuit also alleges that before the appeal, Nwaneri was detained for questioning at the Purdue University Police Department and that he was "sweated" in a room by a large, white police detective who repeatedly insisted he was lying and told him he would go to trial and to jail.

Lt. Fred Davis, the officer named in the complaint, could not be reached for comment on the allegation.

County prosecutor Jerry Bean said Monday that he still is reviewing the case for possible criminal charges. Bean said police reports and transcripts of recorded police interviews with witnesses in the Nwaneri case are on his desk.

He hopes to make a decision about criminal charges by the end of the week.

Posted by Marcia Oddi on Tuesday, August 30, 2005
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Randolph Courthouse story today not encouraging

Today's story in the Muncie Star-Press by Joy Leiker, titled "Randolph courthouse plans remain in limbo," is not encouraging to those who do not want to see the historic structure demolished. Some quotes:

WINCHESTER - Twelve weeks ago the Randolph County Board of Commissioners voted to tear down the existing courthouse. Six weeks later the county's hired experts identified an old Wal-Mart store as the best choice for temporary courthouse space.

But Randolph County officials have made little progress in developing a plan of what to do next. They haven't taken bids to demolish. They haven't settled on where to conduct business while construction is under way. One thing has stayed right on track, however. The meetings. * * *

Twice a month the format is the same. Representatives from the county's hired architectural and construction firms take the floor and offer new points for the discussion. This week, it was more information about two much-talked-about proposals for a temporary location.

One option is to lease the old Wal-Mart store, 970 E. Washington St., a building that offers more space than what the county needs and puts every county office in one single-story location.

The other option involves a series of buildings in downtown Winchester. Some owners will lease, but at least one insists the county buy the space. Coming up with enough room between all the buildings, and adapting the spaces to meet accessibility and code requirements, are issues in every scenario.

Skip Hanchar, from the James S. Jackson construction company in Fort Wayne, has already told commissioners that the Wal-Mart building has "got it all." But many local residents don't want the county to invest money in a building owned by the mega retailer.

They insist that spending the same money, even more money, in locally-owned buildings on the downtown courthouse square is a better investment. * * *

[Monna] Goforth and others, including Winchester's Mayor Steve Croyle and the town's chamber of commerce, have asked commissioners not to abandon downtown Winchester.

But Allan Heuss, a Union City resident, said he doesn't think the county owes Winchester anything. He said if the county is looking to invest in downtown buildings, he knows of some in Union City that could use some help too.

"I don't think the county has any obligation to renovate downtown Winchester," Heuss said, adding he knows the sentiment will ruffle plenty of feathers.

After the meeting, Heuss said he thinks the commissioners' next step is an obvious one. "You need to decide to move people out of the courthouse, one way or another," he said. "We've got to move."

Posted by Marcia Oddi on Tuesday, August 30, 2005
Posted to Indiana Courts

Ind. Courts - More on Gov. Daniels' commutation of Baird's death sentence

Updating yesterday's ILB entry, there are a number of stories and editorials today on Gov. Daniels' action yesterday.

The Evansville Courier& Press has a Mike Smith AP story here, and an editorial here that concludes: "We commend Daniels for having the courage to do what he believed to be right."

The Fort Wayne Journal Gazette has a comprehensive story here by Niki Kelly, and an editorial here. Some quotes:

Hoosiers have become accustomed to Gov. Mitch Daniels making politically bold decisions, but his action Monday was the most important yet: He commuted the sentence of a mentally ill killer from death to life in prison without parole.

Daniels’ move to commute Arthur Baird’s death sentence was surprising for the conservative Republican governor, particularly considering that neither the state parole board nor the Indiana Supreme Court was willing to stop Baird’s scheduled execution on Wednesday. * * *

Daniels’ statement explaining his decision made it difficult to determine how much of a role Baird’s mental illness played in the governor’s decision. On the one hand, Daniels noted that “Indiana Supreme Court Justice Ted Boehm recently wrote that Mr. Baird is ‘insane in the ordinary sense of the word.’ It is difficult to find reasons not to agree.” But on the other hand, he added: “However, I reach today’s decision without substituting my judgment for others on the ambiguous issue of Mr. Baird’s degree of insanity.”

Instead, Daniels based his decision on the fact that most members of the victims’ family and members of the jury believe life without parole is a more appropriate sentence, one not available to jurors until 1994, after Baird was convicted and sentenced.

Daniels’ decision highlights severe problems in a faulty death penalty process, not the least of which was the willingness of Indiana’s highest court and parole board to execute an obviously mentally ill man. While this page would have preferred that Daniels emphatically denounce executing mentally ill criminals, he still reached the right decision. And he should be commended.

Leslie Stedman Weidenbener of the Louisville Courier Journal has this story today. Some quotes:
With his decision, Daniels rejected a recommendation from the Indiana Parole Board that he should deny Baird's request for clemency. The board voted 3-1, despite opinions from three psychiatrists that Baird is mentally ill.

The board's chairman, Raymond Rizzo, has said he believed Baird was pretending to be mentally ill. Another member has said Baird had "played an elaborate game of deceit."

The Indiana Supreme Court ruled 3-2 last week that Baird was competent to be executed.

But Dr. Philip Coons, a professor emeritus of psychiatry at Indiana University School of Medicine, examined Baird for the defense and testified that Baird is delusional and did not believe he killed his family.

Coons said yesterday that he is "delighted" by the governor's decision to commute Baird's sentence. He said the General Assembly should follow with a law prohibiting the death sentence for people who are mentally ill.

Already, Coons said, the U.S. Supreme Court has forbidden the death penalty for people with mental retardation and for anyone younger than 18.

"Basically they've done that because children and teenagers and the mentally retarded don't have the cognitive ability to have good judgment, to make good choices," Coons said. "The same is true of the severely mentally ill."

But although Daniels mentioned Coons' [sic.] mental status in his written statement, he did not use it to justify his decision.

"Courts recognized Mr. Baird as suffering from mental illness at the time he committed the murders, and Indiana Supreme Court Justice Ted Boehm recently wrote that Mr. Baird is 'insane in the ordinary sense of the word.' It is difficult to find reasons not to agree," Daniels wrote.

"However," he continued, "I reached today's decision without substituting my judgment for others on the ambiguous issue of Mr. Baird's degree of insanity. To me, it suffices to note that, had the sentence of life without parole been available in 1987, the jury and the state would have imposed it with the support of the victims' families."

This is the second time in just over a year that an Indiana governor has commuted a death sentence.

Last summer, then-Gov. Joe Kernan commuted the death sentence of Darnell Williams of Gary seven days before he was to be executed for the 1986 murders of a Lake County couple.

Kernan's action followed a unanimous recommendation from the Indiana Parole Board that the governor grant Williams' request for life without parole.

Kernan said then that a number of factors led to his decision, including Williams' low IQ and the fact that the man with whom he committed the crime will not be executed.

The Williams case was the first time an Indiana governor had a commuted a death sentence in 48 years, a period that included a short moratorium on the death penalty.

In the last week of his term, Kernan also commuted the sentence of Michael Daniels, who was convicted in 1979 of killing a man who was shoveling snow in Indianapolis. Kernan cited Daniels' diminished mental capacity.

The Indianapolis Star has a story by Kevin Corcoran. Some quotes:
House Speaker Brian Bosma, R-Indianapolis, said whether mentally ill killers should be executed is a "quickly evolving" area of law that deserves the legislature's attention.

"This wasn't even an issue 20 years ago. You didn't even think about it," Bosma said. "Today, we look at people with mental health issues differently." * * *

Baird's is only the third case in which an Indiana governor has commuted a death sentence in nearly 50 years. Former Gov. Joe Kernan commuted two sentences during his 16 months in office. Baird would have been the fifth inmate executed since Daniels took office in January. * * *

Daniels' staff said he carefully reviewed evidence and listened to oral reports in his Statehouse office before making his decision. He watched videotape of Baird's interview before the Parole Board, focusing on Baird's statements about how God would turn back the hands of time to before the murders occurred. Daniels read -- and reread -- Baird's initial statements to police, as well as incoherent messages Baird had written.

"To some extent, that provided a window into Mr. Baird's mind at the time of the crime," said Steve Schultz, the governor's chief counsel. "It seems pretty clear the crimes wouldn't have occurred but for Mr. Baird's insanity."

In his statement, Daniels cited "unusual, probably unique" circumstances for calling off the execution. Daniels noted life in prison was not an option for jurors in Montgomery County to consider when Baird was sentenced to death; the option is available as an alternative in capital punishment cases now.

"The unanimous sentiment expressed by family members at the time of the trial and years later demonstrates that they believed life without parole was the most appropriate penalty for Mr. Baird," Daniels stated in his decision. "All members of the jury whose views are known also indicate that, had life without parole been an alternative available to them, they would have imposed it instead of the death penalty."

Because of his severe mental illness, Baird had rejected a term of years at the time of his trial that essentially would have kept him in prison for life, Daniels also noted.

"Courts recognized Mr. Baird as suffering from mental illness at the time he committed the murders, and Indiana Supreme Court Justice Ted Boehm recently wrote that Mr. Baird is 'insane in the ordinary sense of the word.' It is difficult to find reasons not to agree," Daniels stated. "However, I reached today's decision without substituting my judgment for others on the ambiguous issue of Mr. Baird's degree of insanity. To me, it suffices to note that, had the sentence of life without parole been available in 1987, the jury and the State would have imposed it with the support of the victims' families."

The Star has an editorial that begins: "Sparing Arthur Baird's life has broad justification even if the governor went for the narrow."

Posted by Marcia Oddi on Tuesday, August 30, 2005
Posted to Indiana Courts

Ind. Law - Indy law firm reportedly threatens suit if county passes hospital ban

"Lawyers threaten suit if county passes hospital ban: Porter hospital execs have asked county for moratorium on healthcare facilities," is the headline to an interesting story today by Matthew Van Dusen in the Munster (NW Indiana) Times. Some quotes:

An Indianapolis law firm has threatened to bring a lawsuit against Porter County if the commissioners pass a moratorium on new specialty hospitals, county officials said Monday.

County Attorney Gwenn Rinkenberger said she spoke to a lawyer from Sommer Barnard Attorneys, PC, in July, after the Porter hospital Board of Trustees proposed the moratorium that would prevent for two years the building of surgical centers or other specialty healthcare facilities.

The lawyer believed that the commissioners had already passed the ordinance and he wanted to review it.

Rinkenberger said she "was definitely given the impression that they would review it and challenge it if it was similar to the one passed in Morgan County."

The threat of a lawsuit makes it unlikely that Rinkenberger will recommend to the commissioners that they pursue the ordinance.

Morgan, Clark and Floyd counties in Southern Indiana have passed similar ordinances that protect public hospitals like Porter from specialty healthcare groups that siphon off profitable services such as imaging, and leave hospitals to perform unprofitable but necessary services.

All three counties have been sued by private hospitals in the U.S. District Court of Southern Indiana.

Dave Bromund, a Sommer Barnard lawyer who is representing the Sisters of St. Francis Health Services, Inc., in its suit against Morgan County, was not immediately available for comment.

Rinkenberger said Sommer Barnard would have to find a client to represent in a suit against the county, but she believes the firm would follow through on its threat.

Posted by Marcia Oddi on Tuesday, August 30, 2005
Posted to Indiana Law

Law - More on Kentucky Governor and that state's merit hiring laws

The ILB has had several entries on the recent controversy in Kentucky, where the Governor and Attorney General are of different parties and the Governor has been charged by the AG with violating the state's merit laws. Our coverage began with the legal issues and risks involved in the use of e-mail - see the initial Aug. 14, 2005 ILB entry.

The story in Kentucky has since evolved far beyond that. Enter "Fletcher" in the search box to access the entries. Yesterday the Louisville Courier Journal reported that Gov. Fletcher was set to appear before a grand jury. Some quotes:

FRANKFORT, Ky. -- When Gov. Ernie Fletcher launched his run for governor, he campaigned on pledges to "clean up the mess in Frankfort" and fight "waste, fraud and abuse."

Now, his administration stands accused of replacing the old Democratic disarray with a fresh mess of Republican making.

Tomorrow, Fletcher is scheduled to appear before a special grand jury investigating whether his administration illegally used politics in making personnel decisions, including the hiring and firing of state workers.

Today's Louisville Courier Journal story is headlined: "Fletcher pardons nine in state hiring inquiry." Some quotes:
FRANKFORT, Ky. -- Gov. Ernie Fletcher used the power of his office yesterday to pardon nine current or former members of his administration who were indicted in an investigation of alleged illegal hiring.

Fletcher also said he would not pardon himself or testify today during his appearance before the grand jury, which is investigating whether state jobs were filled on the basis of politics, not merit.

"I cannot allow state government to continue to be consumed by this game of political 'gotcha' paralyzing our ability to serve you, the people of Kentucky," he said.

The pardon Fletcher signed covers officials indicted so far and "any and all persons who have committed, or may be accused of committing, any offense up to and including the date hereof, relating in any way to the current merit system investigation." * * *

[Attorney General] Stumbo later issued a statement saying the evidence of wrongdoing gathered in the investigation is "overwhelming."

"His administration cannot afford to allow the evidence to come out in court," Stumbo said. "In pardoning these criminal defendants, the governor has slammed the door on the public's right to know what wrongs his administration has committed. He has ensured that the people of Kentucky will never know the truth."

Stumbo said at a news conference after Fletcher's announcement that he may challenge whether the governor can pardon people who are not yet charged.

Posted by Marcia Oddi on Tuesday, August 30, 2005
Posted to General Law Related

Ind. Decisions - More on Alan Matheney v. State of Indiana

The Supreme Court's 8/29/05 order in Alan Matheney v. State of Indiana is now available. Scroll down two for yesterday's now updated ILB entry, which includes a quote from Justice Rucker's concurring opinion. Indianapolis Star has a sidebar to its Baird report today on the Matheney case. Many of you will remember the facts:

Background: The slaying occurred almost two months into then-Gov. Evan Bayh's first term. Matheney broke into Bianco's home, caught her as she tried to run away and struck her in the head so hard with a shotgun that the weapon broke. He was convicted by a Lake County jury and sentenced to death.

Reaction: Bianco's murder made national news and prompted Bayh, now a U.S. senator testing the waters for a presidential run, to scrap furloughs and deny nearly all requests for clemency during his eight years in office. The furlough program was later reinstated with restrictions that would have prevented Matheney's temporary release.

Mental illness? The courts in Matheney's case rejected arguments that mentally ill killers should enjoy the same protection from execution in Indiana as mentally retarded killers. Matheney's defense attorneys raised the insanity defense at trial, but two court-appointed psychiatrists testified Matheney was not insane.

The Louisville Courier Journal has this AP story by Mke Smith.

Posted by Marcia Oddi on Tuesday, August 30, 2005
Posted to Ind. Sup.Ct. Decisions

Monday, August 29, 2005

Law - Access to Abortion Pared at State Level

"Access to Abortion Pared at State Level" is the headline to a lengthy front-page story today in the Washington Post. Some quotes:

This year's state legislative season draws to a close having produced a near-record number of laws imposing new restrictions on a woman's access to abortion or contraception.

Since January, governors have signed several dozen antiabortion measures ranging from parental consent requirements to an outright ban looming in South Dakota. Not since 1999, when a wave of laws banning late-term abortions swept the legislatures, have states imposed so many and so varied a menu of regulations on reproductive health care.

Three states have passed bills requiring that women seeking an abortion be warned that the fetus will feel pain, despite inconclusive scientific data on the question. West Virginia and Florida approved legislation recognizing a pre-viable fetus, or embryo, as an independent victim of homicide. And in Missouri, Gov. Matt Blunt (R) has summoned lawmakers into special session Sept. 6 to consider three antiabortion proposals. * * *

[G]rass-roots activists have been changing the legal landscape one state at a time. In most cases, the antiabortion forces have prevailed, adding restrictions on when and where women can get contraceptive services and abortions, and how physicians provide them.

Antiabortion activists say they have pursued a two-pronged approach that aimed to reduce the number of abortions immediately through new restrictions and build a foundation of lower court cases designed to get the high court to eventually reverse the landmark 1973 Roe v. Wade decision making the procedure legal.

On the other side, a handful of states have approved provisions that make it easier for women to get emergency contraception, known as the "morning after" pill. However, two Republican governors, Mitt Romney of Massachusetts and George E. Pataki of New York, vetoed such bills.

Locally, Maryland Gov. Robert L. Ehrlich Jr. (R) has signed legislation that makes a "viable fetus" a distinct victim of a crime such as murder or manslaughter. Virginia did not enact any laws related to abortion. * * *

South Dakota has been among the most active states, passing five new laws, including a "trigger" law that would impose an immediate abortion ban after any Supreme Court ruling overturning Roe v. Wade. * * *

For the small and dwindling number of physicians providing abortions, it has been frustrating to encounter new regulations dictating non-medical requirements such as the width of doorways and the size of hallways, said Steven Emmert, executive director of the National Coalition of Abortion Providers.

"Those opposed to abortion are finding new and different ways to increase the roadblocks and the hoops [that] providers and patients have to jump through," Emmert said.

Missouri, for example, has set aside $1 million to encourage low-income pregnant women to carry a pregnancy to full term and potentially give the infant up for adoption.

"A theme we're seeing this session is for legislatures to go back and put on more restrictions," said Katherine Grainger, legislative counsel at the Center for Reproductive Rights. "They passed all these laws, and now they're saying, 'Let's see what else we can get.' "

Lawmakers in several states toughened existing laws affecting girls younger than 18 who seek an abortion. Today, 35 states require parental involvement of some type, according to a tally by Stateline.org, an online public policy journal funded by the Pew Charitable Trusts.

Posted by Marcia Oddi on Monday, August 29, 2005
Posted to General Law Related

Ind. Courts - Governor spares one; Supreme Court sets execution date for another [Updated 8/30]

At 12:40 PM the Indianapolis Star posted this story on its website that begins:

Gov. Mitch Daniels today commuted the sentence of convicted killer Arthur P. Baird II to life without the possibility of parole.

Baird was just hours away from eating his last meal in the Indiana State Prison at Michigan City when his attorney, Sarah L. Nagy, received the word.

Baird was scheduled to be executed by lethal injection early Wednesday for killing his parents in 1985.

“The case of Arthur Baird would justify the death penalty based upon the nature of his crimes, the unchallenged certainty that he committed them, and the care and completeness of the legal process in imposing that sentence and in consistently upholding it over the years since those crimes occurred,” Daniels said in a written clemency statement issued shortly after noon.

“Nonetheless, given certain unusual, probably unique circumstances in this case, a different outcome seems more just.”

Governor Daniels' clemency statement does not appear to be available online at this time.

"Court rejects pleas, sets execution date" is th headline to this AP story, posted on the Indianapolis Star site at 12:16 PM. Some quotes:

The Indiana Supreme Court ordered today that a man convicted of beating his former wife to death in 1989 while he was out of prison on a brief furlough be executed Sept. 28. * * *

[Alan] Matheney was convicted of forcing his way into Lisa Bianco’s home in Mishawaka a few hours after his release on an eight-hour pass from a prison. As their two daughters fled in terror, Matheney chased Bianco into the street and beat her outside a neighbor’s home with an unloaded .410-guage shotgun.

The state’s prison furlough program was suspended after Bianco’s death and later reinstated with tightened restrictions that would have prevented Matheney’s release.

The Supreme Court's order does not appear to be available online at this time. Here is what is available from the Court's docket:
8/29/05 ISSUED THE ENCLOSED ORDER:
8/29/05 MATHENEY HAS NOT MET HIS BURDEN OF ESTABLISHING A REASON-
ABLE POSSIBILITY THAT HE IS ENTITLED TO POST-CONVICTION RELIEF.
ACCORDINGLY, WE DECLINE TO AUTHORIZE THE FILING OF A SUCCESSIVE
PETITION FOR POST-CONVICTION RELIEF. A DATE FOR EXECUTION OF
THE DEATH SENTENCE WILL BE SET BY SEPARATE ORDER.
BECAUSE MATHENEY HAS ALREADY RECEIVED EXTENSIVE JUDICIAL
REVIEW OF HIS DEATH SENTENCE AND THERE IS PENDING BEFORE US THE
STATE'S MOTION REQUESTING THAT A DATE BE SET FOR EXECUTION OF
THE DEATH SENTENCE, ANY REQUEST FOR REHEARING MUST BE PROMPT.
REHEARING SHOULD NOT BE SOUGHT IF MATHENEY INTENDS MERELY TO
RAISE THE SAME ARGUMENTS WE HAVE ALREADY ADDRESSED. IF HE DOES
PETITION FOR REHEARING, HOWEVER, THE PETITION MUST BE PHYSICALLY
FILED WITH THE CLERK NO LATER THAN (FIVE DAYS AFTER THIS ORDER),
2005. THE STATE'S RESPONSE MUST BE PHYSICALLY FILED WITH THE
CLERK NO LATER THAN (FIVE DAYS AFTER THAT), 2005. TO MINIMIZE
ANY DELAY IN THE SERVICE AND RECEIPT OF PAPERS, THE ATTORNEYS
ARE ORDERED TO CERTIFY IN PAPERS PRESENTED FOR FILING THAT
COPIES HAVE BEEN SENT BY FAX OR ELECTRONIC MAIL TO OPPOSING
COUNSEL AND TO THE DIVISION OF SUPREME COURT ADMINISTRATION
(FAX NUMBER 317/232-8372).
RANDALL T. SHEPARD, CHIEF JUSTICE
SHEPARD, C.J., AND DICKSON, SULLIVAN AND BOEHM, JJ., CONCUR.
RUCKER, J., CONCURS WITH SEPARATE OPINION. KM
8/29/05 ****** ABOVE ENTRY MAILED ******
8/29/05 ******** STATE'S RESPONSE TO REHEARING MUST BE FILED WITHIN
FIVE DAYS FROM DATE REHEARING IS FILED ******************** KM
8/29/05 ISSUED THE ENCLOSED ORDER:
8/29/05 MATHENEY HAS THUS COMPLETED THE REVIEW OF THE CONVICTIONS
AND SENTENCE TO WHICH HE IS ENTITLED AS A MATTER OF RIGHT, AND
THE STATE HAS FILED A MOTION TO SET A DATE FOR EXECUTION OF THE
SENTENCE. THERE BEING NO STAY OF EXECUTION NOW IN EFFECT, IT
IS ORDERED THAT THE EXECUTION OF THE DEATH SENTENCE IMPOSED ON
ALAN MATHENEY BE CARRIED OUT SEPTEMBER 28, 2005, BEFORE THE HOUR
OF SUNRISE. THIS ORDER SHALL CONSITUTE THE WARRANT FOR
EXECUTION DESCRIBED IN INDIANA CODE 35-50-6-2 & 3, AND THE
SUPERINTENDENT/WARDEN OF THE INDIANA STATE PRISON IS DIRECTED
TO CARRY OUT THE EXECUTION IN ACCORDANCE WITH INDIANA LAW.
RANDALL T. SHEPARD, CHIEF JUSTICE
SHEPARD, C.J., AND DICKSON, SULLIVAN, BOEHM AND RUCKER, JJ.,
CONCUR. KM
8/29/05 ****** ABOVE ENTRY MAILED ******

[Update 8/30/05] The Court's 8/29/05 order in Alan Matheney v. State of Indiana is now available. Justice Rucker writes in his concurring opinion:

Rucker, J., concurring. I concur with the majority’s decision to deny Matheney’s request to file a successive petition for post-conviction relief. I continue to believe that a sentence of death is inappropriate for a person suffering a severe mental illness. See Corcoran v. State, 774 N.E.2d 495, 502-03 (Ind. 2002) (Rucker, J., dissenting) (expressing the view that a death sentence for a seriously mentally ill person “violates the Cruel and Unusual Punishment provision of the Indiana Constitution.”). Here however, Matheney presents nothing to this court even remotely demonstrating that he is presently mentally ill or that he is “unaware of the punishment [he is] about to suffer and why [he is] to suffer it.” See Ford v. Wainwright, 477 U.S. 399, 422 (1986) (Powell, J., concurring). Rather, although making oblique references to his present mental state, Matheney premises his claim for relief on the ground that he was mentally ill at the time of the murder. This claim has been decided against Matheney in earlier appeals. I therefore agree that Matheney has failed to establish a reasonable possibility that he is entitled to post-conviction relief.

Posted by Marcia Oddi on Monday, August 29, 2005
Posted to Indiana Courts

Ind. Courts - "Virtual Tours" of Indiana's Courthouses

A press release from the Indiana Supreme Court today announces:

“VIRTUAL TOURS” OF INDIANA’S COURTHOUSES PREMIERES WITH FOUR COURTHOUSES

An extensive project that is designed to showcase the beauty and history of Indiana’s courthouses and to help people find their way through an unfamiliar building through online “virtual tours” is now underway, Chief Justice Randall T. Shepard announced today.

Eventually, the project will try to include virtual tours of each courthouse in Indiana’s 92 counties, all of which are historically significant, and many of which are aesthetically and architecturally significant.

As of today, virtual tours of the courthouses in Brown, Hancock, Johnson and Randolph County, can be viewed online.

Each page includes a 360° virtual tour created with interactive imaging, a still photo gallery, the courthouse hours and address with a link that provides a map and driving directions, and information about handicap accessibility and parking. In addition, the Historic Landmarks Foundation of Indiana has provided historical information about each courthouse. For many courthouses, vintage postcards have been located and are also posted on the page.

Chief Justice Shepard predicted the virtual tours would be useful for many people. “We had two goals for this project. Our first was historic preservation and education but we also wanted to offer this as a service to litigants so they can familiarize themselves and their children with the courthouse before going to court,” he said.

Photography by William Wolfred at more than a dozen other courthouses has been completed and is in the process of being converted to virtual tours.

Here is the link to the main tour page, Virtual Courthouse Tours. And here are links to the four counties completed so far: Brown, Hancock, Johnson and Randolph County. From the Randolph County page:
The current Randolph County courthouse was built between 1875-77 in the Second Empire style, with a Mansard roof and clock tower that were removed in the early 1950s. J.C. Johnson, a Fremont, Ohio, carpenter who taught himself architecture, designed not only the Randolph county courthouse, but the courthouse in neighboring Adams County as well. Johnson's building is the third courthouse commissioned by Randolph county taxpayers. The first courthouse, built in 1828, was abandoned by the county for a newer building on the north side of the square in the 1850s. The courthouse square was built in the Shelbyville plan.

Earlier this year, the Randolph County Commission voted to wreak havoc on the Winchester Courthouse Square Historic District by voting to tear down the 128-year-old county courthouse. If the Randolph County Courthouse falls, it will be the first loss in Indiana since the Cass County Courthouse was leveled nearly 30 years ago. Historic Landmarks Foundation of Indiana, as well as preservationist around the state, including Chief Justice Randall Shepard, have been outspoken in their opposition to the commission's decision.

Among those working to save the courthouse, none can trump the Winchester Bridge Club ladies for audacity. To call attention to the cause, the club members have posed—showing all their cards, so to speak, but holding strategically placed models of the courthouse—for a fundraising calendar . Even before the calendar has been published, the ladies have more than accomplished their mission of drawing local and even national attention to the courthouse.

Posted by Marcia Oddi on Monday, August 29, 2005
Posted to Indiana Courts

Ind. Gov't. - IU embarks on image makeover

"IU embarks on image makeover" is the headline to a story today, by Staaci Hupp, in the Indianapolis Star City-State section.

Recall that there was/were a flurry of stories earlier this month (see this ILB entry from Aug. 8) on IU's President Adam Herbert and how he "takes too long to make decisions, keeps a low profile and spends too much time on sports." Contrasts with Purdue's president are inevitable. Some quotes:

"The university seems to be floundering with no leadership, no direction," said John Kimberling, a retired Los Angeles lawyer and an IU graduate who has given more than $5 million to the law school. "I have doubts about writing any more big checks for Indiana University until I know what their specific plans are for the future."

It doesn't help IU that its intrastate rival's star seems to be rising. Purdue University has a popular president with a polished sales pitch, and potential students have shown unprecedented interest in the school.

Even some IU loyalists say Purdue has edged out the Bloomington school as the state's premier research university. * * *

Today, image is critical as government entitlement programs gobble up state tax dollars to provide such things as health care for the poor, researchers say, leaving public universities to look elsewhere for extra financial support.

That has pushed universities to shed their ivory-tower image in favor of aggressive marketing strategies as they compete for students and research grants.

Some schools have committees that specifically think of strategies to drive up their rankings in national publications such as U.S. News and World Report. Others have bought keywords on Internet staples such as Google so their school's name is more likely to pop up in a word search.

"This is old hat for a lot of businesses, but for universities it's a big departure from what they've done in the past," said Jason MacDonald, a Boise (Idaho) State University marketing professor.

Purdue President Martin Jischke had publicity in mind as soon as he arrived in West Lafayette five years ago from Iowa State University. He authorized about $500,000 a year for work on television commercials, billboards and newspaper advertisements in Indianapolis alone -- many featuring him personally promoting the Boilermakers.

In his first year, Jischke oversaw the birth of Purdue's "brand," or one standard design for the university's name. And Jischke pops up everywhere, from small-town manufacturing plants and Rotary Club luncheons to the Indiana Black Expo, where he pitches one common theme: Purdue is an important economic partner for the state.

Purdue officials say the efforts have paid off in fundraising, sponsored research and student interest, which -- in the form of undergraduate applications -- has climbed 44 percent in the past decade.

"There isn't any question that Dr. Jischke has had a tremendous amount of influence in the state because of his ability to communicate his vision for the university," said Joseph Bennett, Purdue's vice president for university relations. * * *

Some university supporters say Herbert has been too low-profile for such a high-profile job and is slow to make key decisions.

"It's a university without a leader," said S. Sue Aramian, an IU Foundation board member and former Steak n Shake executive from New York. "Who else can you fault besides the board of trustees or the president -- or both?"

Aramian was so alarmed after a year came and went without a new business school dean that she called the governor's office to complain. IU tapped professor and administrator Daniel Smith as the business school's leader last month, but the quest for a permanent Bloomington chancellor has lasted more than two years.

Herbert said the slow searches reflect the university's bid for top-notch applicants. As for his public persona, he said it took a back seat to a string of internal problems he inherited, including a financially troubled athletic department.

[Re "the slow searches reflect the university's bid for top-notch applicants," when the searches run on for years, one recalls the adage "the perfect is the enemy of the good."] Check out the entire Star story, it is quite lengthy and includes some tables and, in the online version, an interesting photo.

Posted by Marcia Oddi on Monday, August 29, 2005
Posted to Indiana Government

Environment - A $17.1 million upgrade at Muncie's Water Pollution Control Facility; Great Lakes initiative; Tondu power plant

CSOs. The Muncie Star-Press reports today, in a story by Rick Yencer:

MUNCIE - A $17.1 million upgrade at Muncie's Water Pollution Control Facility could translate into a 19.8-percent rate hike for Muncie sewage utility customers.

"It is mandatory," said Phil Tevis, chairman of a citizens advisory group that recently signed off on the project.

Tevis was referring to federal clean water laws that require local communities to maintain wastewater treatment capacity while also reducing combined sewer overflows into the river.

The Muncie Sanitary District, which has raised sewage rates twice since 2000, is looking for another rate hike in 2006 to cover the WPCF project, which involves replacing older pumps, filters and grit removal equipment, while repairing buildings constructed with the original plant in 1938.

"We are ensuring we can take the flow that we are taking now and increasing the quality of water coming out of the plant," said Barb Smith, WPCF superintendent.

While the work will reduce some CSO flow, it won't be significant enough to meet clean water rules, Smith said. Another project will help eliminate CSOs and further increase plant capacity.

John Johnson, vice president of White River Watchers, said CSOs that dump raw sewage into the river had to be addressed.

"It effects us more because we are downstream," Johnson said about his Madison County-based group.

Johnson recalled how e-coli levels in White River near Yorktown spiked a few years ago. The environmental group organizes river cleanups throughout East Central Indiana.

Tevis said the sanitary district had been pro-active in separating combined storm and sanitary sewers and were ahead of many other communities that had done nothing.

Initial plans to build lagoons near the plant to handle excess overflow were scrapped, Tevis said, for improvements to better handle sewage inflow.

Great Lakes. "EPA urged to improve Great Lakes water" is the headline to this AP story published Sunday in the Fort Wayne Journal Gazette Some quotes:
DETROIT – The U.S. Environmental Protection agency must work harder to ensure stringent water quality standards are fully implemented across the Great Lakes region, according to a report released Friday.

The U.S. Government Accountability Office, Congress’ investigative arm, said while some progress has been made in reducing Great Lakes pollution, more needs to be done to enforce the standards set forth in the Great Lakes Initiative.

The initiative, a set of water quality criteria issued by the EPA, is designed to control toxic materials and protect wildlife and human health. The eight Great Lakes states – Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin – are responsible for implementing the criteria.

The GAO report found the initiative’s potential to improve Great Lakes water quality is limited because it focuses on point sources of pollution created by industry, which are regulated, rather than non-point sources such as urban and agricultural runoff.

The initiative also is limited because it allows the use of flexible implementation procedures, which lets facilities discharge pollutants at levels higher than those set by the initiative’s water quality standards, the GAO said.

See this ILB entry from last Friday on the GAO report.

Tondu power plant. The South Bend Tribune published an opinion piece yesterday on "the Tondu Corp. coal gasification plant proposed for New Carlisle," by Notre Dame professor Kristin Shrader-Frechette. A quote from the lengthy piece:

Industry-reported data from the U.S. Toxics Release Inventory show that more cancer-causing chemicals are released in our area than anywhere in the United States. Scientists reporting T.R.I. data to the International Air Quality Board call our area the U.S. "Cancer Alley." This narrow corridor includes Michigan's southern border and runs east toward Cleveland. It receives one-third of all U.S. toxic chemicals.

Just the Michiana route, from Chicago to Elkhart, is home to 10 of the Great Lakes' Top 12 toxic polluters. T.R.I. data show that each year the United States releases eight pounds of toxins for every American. Indiana residents average almost three times that amount. St. Joseph County receives even more.

Could using Tondu's gasification technology, touted as "new" and "clean coal," help us? Yes, it might. The problem is that, despite gasification's benefits, it may not be clean enough for "Cancer Alley." Its costs and experimental nature may make using it -- here and now -- premature. In fact, high costs and pollution stalled gasification in the 1940s. Until then, it produced most gas for U.S. residential and commercial use. Classified by the U.S. Centers for Disease Control as "public-health hazards," old coal gasification plants are now monitored as hazardous-waste sites.

Posted by Marcia Oddi on Monday, August 29, 2005
Posted to Environment

Ind. Law - Town of Greenville looks at zoning changes; historic Ernie Pyle home in Dana is demolished

Ben Zion Hershberg writes today in the Louisville Courier Journal, in a story headlined "Greenville plans to safeguard its rural heritage," that:

In response to rapid growth in northwestern Floyd County, the town of Greenville is developing a planning and zoning policy aimed at preserving its rural character.

The comprehensive land-use plan, which was approved by the town's plan commission last month, states that one of its top priorities is to "promote and protect the … historic, small-town atmosphere of Geenville," which has about 600 residents.

The plan, as well as the zoning ordinance being developed to accompany it, would encourage the preservation of historic structures and would require new construction to fit the town's character.

It also would extend Greenville's planning and zoning jurisdiction a half-mile beyond town boundaries, as allowed by state law. Development on larger lots would be encouraged in that area, as well as the retention of farms and open space where suitable. * * *

"I think any time a town decides to look at planning and zoning, that's a good thing," said Don Lopp, Floyd County's planner. It's evidence, he said, that town officials want to guide development in an orderly and thoughtful way.

Lopp said it's unusual, though not unprecedented, for a town of Greenville's size to have sophisticated planning and zoning procedures.

Georgetown, the other town in Floyd County, also has its own planning and zoning system. Georgetown's attempt to create a fringe area died two years ago after a lengthy legal battle.

Lopp said he has not reviewed Greenville's comprehensive plan and can't say whether he thinks county government should give Greenville authority over a fringe area.

Paul Riggs, president of the Floyd County Plan Commission, said he is concerned about the issue. The fringe area currently is under county jurisdiction. * * *

Major goals established in the Greenville comprehensive plan include:

Promoting development that won't hurt the environment.

Encouraging a variety of housing types and sizes compatible with the community.

Allowing creative design, including the use of so-called Planned Unit Developments that allow builders considerable flexibility under the close review of town planning agencies.

Encouraging parks and recreational opportunities in the town.

Preserving Greenville's residential character by keeping commercial development separate from housing and by applying for the listing of suitable areas on the National Register of Historic Places to help preserve them.

Meanwhile, the Evansville Courier& Press reports today: "Pyle's boyhood home razed." Some quotes:
The western Indiana farmhouse where World War II correspondent Ernie Pyle grew up has been demolished, shocking preservationists who've worked for years to keep Pyle's legacy alive.

The home's demolition in mid-August came after the family that owned it had offered the house to the Ernie Pyle museum in Dana, the state - or anyone who would take it.

"All we asked was that they move the house from where it stood, because we could not afford to fix it up, and vandals were breaking into it," owner Gene Goforth said by phone from his Huntsville, Texas, home.

"It became a liability issue with us."

Here is more from an AP story in the Chicago Tribune:
The hilltop farmhouse outside of Dana, about 20 miles north of Terre Haute, was where Pyle lived from roughly age 2 to 18.

"It's the place where he grew up and wrote about so many times when he recounted his childhood," said Evelyn Hobson, retired curator of the Ernie Pyle State Historic Site in Dana.

Laura Minzes, a deputy director at the [Indiana] Department of Natural Resources, said money was the primary reason the state passed on the opportunity to acquire the farmhouse.

"Moving the house would have eliminated its eligibility for any sort of National Register nomination," she said.

Even more from the Indiana Daily Student (IU's School of Journalism is housed in Ernie Pyle Hall):
"It's the place where he grew up and wrote about so many times when he recounted his childhood," said Evelyn Hobson, retired curator of the Ernie Pyle State Historic Site in Dana.

Goforth, whose family owned the farm across the road from the Pyle farm, said he has fond memories of visiting with Pyle's parents and Pyle himself when he returned home from his journalistic sojourns.

Charity Pollard, acting site manager for the Ernie Pyle State Historic Site in Dana, said she was disappointed that efforts to fail the home failed.

"I went to my bosses and my people, and there were no answers," she said. "The state is surplusing properties right now instead of acquiring them."

Laura Minzes, deputy director of historic site structures and real estate for the [Indiana] Department of Natural Resources' division of museums and historic sites, said money was the primary reason the state passed on the opportunity to acquire the farmhouse.

"Moving the house would have eliminated its eligibility for any sort of National Register nomination," she said.

The existing historic site in Dana consists of a house that is believed to be the one in which Pyle was born. It was located elsewhere and moved to the site and therefore, isn't on the National Register of Historic Places, either.

Two Quonset huts donated by the U.S. Army contain Pyle exhibits and memorabilia and serve as a visitor's center.

Posted by Marcia Oddi on Monday, August 29, 2005
Posted to Indiana Government | Indiana Law

Sunday, August 28, 2005

Ind. Law - Appointment of child advocates in Indiana

"Federal court ruling could affect Indiana" is the headline to a story today in the Indianapolis Star. The story, by Tim Evans:

Indiana's new law requiring the appointment of advocates to represent all children in abuse and neglect cases may not go far enough toward protecting their legal rights.

A federal judge in Georgia ruled earlier this year that "foster children have both a statutory and constitutional right to counsel."

Judge Marvin H. Shoob found Georgia's child welfare program was neglecting children in its care by not providing them with attorneys.

Child-rights advocates hail the decision as an important step toward establishing the right to counsel for all children in America.

"This is a landmark decision that says every child, at every stage of the child welfare experience, is entitled to independent, adequate and effective counsel," said Ira Lustbader, associate director of Children's Rights, the advocacy group that represented children in the Georgia case.

While that case focused on the Georgia system, Lustbader said the decision could set a legal precedent and be cited in similar cases across the country.

Indiana's new law, which took effect July 1, requires only that an "advocate" be appointed to represent such children.

In most Indiana counties, those advocates are trained volunteers rather than attorneys. And not all Hoosier children who should have advocates are getting them because of a shortage of money and people to provide the services.

If Indiana were forced to switch to attorney-only representation, the state's cost for serving all children could increase nearly fourfold, to $35 million a year based on a fee of $50 an hour.

The federal decision, out of the ND of Georgia, is class action lawsuit, Kenny A. v. Perdue. I have been unable to find it online [update- see end of this entry], but here are some quotes from a NY Times story from Feb. 9, 2005:
ATLANTA - A federal judge here said on Tuesday that abused and neglected children have a constitutional right to legal representation, a ruling that lawyers who represent such children said was an important first step in establishing that right nationally.

The ruling, by Judge Marvin H. Shoob of Federal District Court, came in a class-action lawsuit filed by a national organization against Georgia's child welfare agency, claiming that it is itself neglectful of children.

The organization, Children's Rights, also sued Fulton and DeKalb Counties, which together encompass the Atlanta metropolitan area. It accused them of failing to provide adequate legal counsel to children, saying court-appointed lawyers in Fulton County had an average caseload of more than 400 children, or four times the recommended number. DeKalb County lawyers have an average caseload of more than 180, the organization said.

Judge Shoob refused the counties' motion to dismiss the case, writing, "Foster children have both a statutory and a constitutional right to counsel."

If an appellate court agrees with Judge Shoob, thereby creating case law, "it would be one of the biggest steps toward justice for children that we could make," said Marvin Ventrell, the president and chief executive of the National Association of Counsel for Children, who appeared as an expert witness for the plaintiffs.

While the Supreme Court has ruled that indigent parents must be assigned lawyers when the state seeks to terminate their parental rights, only about half of all states require that courts appoint lawyers for abused children, according to a survey conducted in 2003-4 by First Star, a nonprofit organization in Washington for abused and neglected children. In Georgia, children in the welfare system are assigned lawyers only in cases where the state is seeking to terminate their parents' rights.

"While there is a right to counsel in delinquency cases, ironically, abused and neglected children don't have that right," Mr. Ventrell said.

Lawyers for Fulton County declined to comment on the case, and a lawyer for DeKalb County said he had referred questions to someone else in his office. That person did not return the call.

Ira Lustbader, the associate director of Children's Rights, said the organization could find no previous federal ruling that children have the right to a lawyer in child welfare cases. Mr. Lustbader said legal counsel was especially important in a system like Georgia's, which he said failed to provide all foster children with basic medical care or protect them from being abused by foster parents.

A longer Star story by Evans today is titled "9,000 youths in state lack an advocate: Law to combat abuse, neglect didn't include necessary money." That pretty much says it. The piece begins:
More than 9,000 Indiana children, who under state law should have court-appointed advocates to oversee their abuse and neglect cases, are going unrepresented.

Failure to provide advocates can result in those children receiving less personal attention and fewer services in the state's care, while also delaying resolution of their cases.

Those unrepresented children account for about half of the youths who should have advocates under the new law that took effect July 1.

"This is creating a crisis across the state," said Cindy Booth, who runs a not-for-profit program that provides volunteer advocates for children in Marion County courts.

"Without advocates, these kids are often unmonitored and don't have anyone to speak up for them."

The advocate requirement was included in sweeping changes made this year in the state's child welfare system, but lawmakers did not provide money to pay for the advocates.

More from the story:
James W. Payne, head of the state's Department of Child Services, said he and lawmakers were aware there would be a funding shortfall and that it was not possible to implement the full program immediately.

Indiana was the last state to pass such a law, and Payne said it was important to send a signal that the state was serious about child-welfare reform. Other states struggling to meet similar requirements have not experienced repercussions for failing to immediately serve all children who need advocates, he said.

"We knew we would have to go back and work on that," Payne said of the funding. "But we had to start somewhere. The first step was to get the requirement in place."

The state recently received a $50,000 grant to look for solutions. * * *

The new requirement was approved by the General Assembly this year as part of Senate Bill 529, which created the Department of Child Services and addressed several other child-services issues. The average cost of serving one child is about $500 -- or about $9 million for an estimated 18,000 children.

"The law is a good thing that needed to happen, and it is the right thing to do for children," said Leslie Rogers Dunn, a state Supreme Court official who oversees volunteer programs that serve children in 61 of Indiana's 92 counties.

"Now we have to develop a plan to make that happen. Even if we had the money, we couldn't make it happen tomorrow."

There is much more in this lengthy article.

[More] This site, ChildWelfare.net from the Emory School of Law, has the 2/8/05 federal court opinion in Kenny A. v. Perdue, as well as the proposed settlement agreement from 7/5/05, and much more material. Locate the information under "What's New."

[Still More] For another Indiana lawyer's (Richmond) first-hand take on this subject, see this entry from E. Thomas Kemp's Kemplog.

Posted by Marcia Oddi on Sunday, August 28, 2005
Posted to Indiana Law

Environment - Stories today on ethanol agri-park

Two more stories in the Muncie Star-Press today about building an agricultural park near Muncie to house an ethanol refinery/brewery, both by Seth Slabaugh.

"Proposed ethanol plant has 'excellent chance'"
is the headline to this story. The very long article begins:

WINCHESTER - Farmers, bankers, businessmen, contractors, lawyers and others have formed a limited liability corporation that intends to invest in the nationwide ethanol boom.

Indiana Ethanol LLC is planning to build an $80-million to $130-million ethanol plant in Randolph County or a nearby county. The facility would directly employ 36 to 45 people and produce 50 million to 100 million gallons of ethanol a year.

Proponents say the project would make E 85 (an alternative fuel blend of 85 percent ethanol and 15 percent gasoline) available to local motorists, boost the price of corn in this region, help reduce dependence on foreign oil, aid the environment, and provide local residents an investment opportunity.

However, opposition has surfaced at one of the sites being considered for the ethanol plant - the rural Delaware County community of Shideler, where many residents say they don't want a large industrial facility in their back yard.

The second story today is titled "Are ethanol plants more like a brewery or more like a chemical plant?" Some quotes:
MUNCIE - A trade association for the ethanol industry, a bio-energy expert at Purdue University, and others are disputing a Ball State University professor's assertion that ethanol plants are dangerous and dreadful.

During a meeting of opponents of the proposed Shideler agricultural bio-enterprise park last week, associate chemistry professor Jim Rybarczyk compared ethanol plants to chemical plants, chemical refineries and power plants. * * *

Michael Ladisch, distinguished professor and director of the Laboratory of Renewable Resources Engineering at Purdue, called Rybarczyk's statements puzzling and misleading.

Ladisch said ethanol plants were not chemical refineries or chemical plants.

"They don't use chemicals, they use corn, yeast, and enzymes," Ladisch said.

Besides fuel, ethanol plants produce animal feed and corn syrup used in soda pop, which Ladisch noted were not toxic.

Ladisch has visited ethanol plants numerous times during the past 20 years.

"I have no problem setting foot in them," he said. "The ones I've worked with have all been tightly run and covered by very stringent environmental regulations, especially in Indiana."

The Purdue professor said he thought of chemical refineries as places that make things like building blocks for plastics, components for paint, polymers, and so forth.

"I don't think it's accurate to call ethanol plants dangerous, but I'm not sure I'd want a summer cottage next door to one, just because they are so large," Ladisch said. "They're not much different than a grain elevator. They have trucks coming in and out all day and all night, so maybe you wouldn't want to live next door to one. But they don't site ethanol plants next door to houses anyway."

Thad Godish, an industrial hygienist at Ball State University, said it would be more accurate to call ethanol plants "alcohol plants" than chemical plants.

"Basically, you make ethanol the same way you make beer and wine," Godish said. "You ferment the raw material, corn grain, to get alcohol. The worst I've heard about an ethanol plant is you can smell it. I would not be afraid of an alcohol plant. If I was afraid of it, I'd quit drinking wine."

But like Ladisch, Godish said he wouldn't want to live next door to an ethanol plant. * * *

"Ethanol is a toxic and hazardous chemical that will be produced by this chemical refinery in very large quantities," he said. "Other hazardous materials such as sulfuric acid are used in the ethanol production and refining processes."

He added: "And this is most definitely a chemical refinery, virtually identical to an oil one. The only differences are the beginning raw material and what the end product is. And both processes involve significant hazardous emissions."

The hazards of storing and transporting ethanol were demonstrated recently near Indianapolis, where a tanker exploded, creating one of the most challenging HAZMAT responses in recent memory, Rybarczyk said.

See this entry from 8/23/05 (last item) about rezoning for an 800-acre agricultural park "being proposed in hopes of attracting an ethanol or soy biodiesel production facility or other agricultural enterprise" near Shideler, and this entry from 8/25/05 (2nd item) where "A Ball State University scientist is comparing the proposed Shideler agricultural bio-enterprise park to a power plant that he and other remonstrators stopped from being built near DeSoto several years ago."

Posted by Marcia Oddi on Sunday, August 28, 2005
Posted to Environment | Indiana economic development

Saturday, August 27, 2005

Law -C-Span's America & The Courts profiles John Roberts

C-SPAN's American and the Courts this evening had three excellent interviews from people who know John Roberts well:

ON AMERICA & THE COURTS
Profile of Judge John Roberts
This week's America and the Courts looks at the life and career of Supreme Court nominee John Roberts. C-SPAN has interviewed his former high school teacher David Kirkby, Harvard Law School friend and former Washington roommate Richard Lazarus, and Hogan and Hartson law firm colleague Patricia Brannan.
It is not posted online for viewing yet, but should be tomorrow. Check here.

[More] Watch it via C-SPAN at 9:02 Indianapolis time (EST) Sunday morning.

Posted by Marcia Oddi on Saturday, August 27, 2005
Posted to General Law Related

Ind. Gov't. - Fort Wayne Journal Gazette editorial on BMV ID "rules"

An editorial in the Fort Wayne Journal Gazette today begins:

By invalidating the BMV’s identification requirements to get a driver’s license or state ID card, the Indiana Court of Appeals upheld the belief that state agencies can’t leap over laws designed to protect the people.

The bureau’s intentions may have been good in demanding more documents three years ago. Identity fraud was and is an issue. But the BMV’s method for enacting the rule was clearly wrong. There’s a lengthy, formal process the bureau didn’t go through, a procedure that needs to include public hearings.

The BMV hasn’t yet acted on the court’s decision and reversed the new rules, which require applicants to produce several documents sets. The attorney general’s office, which is representing the BMV, has until Sept. 12 to ask for a rehearing or transfer the case to the Indiana Supreme Court. Given the tone of the appellate court’s unanimous decision published Aug. 12, the BMV should take its medicine and start formalizing its rules through the procedures demanded of it by law.

See also this ILB entry from yesterday, titled "What are the BMV's plans re its void ID rules?"

Posted by Marcia Oddi on Saturday, August 27, 2005
Posted to Indiana Government

Ind. Gov't. - More today on Indiana deer; non-attorney misidentified in several stories

The Fort Wayne Journal Gazette has a story today by Phil Bllom, Outdoors editor, headlined "Deer herd sale subject of indictment: South Bend-area man to admit role." Some quotes:

A South Bend-area man intends to plead guilty Monday in federal court to illegally capturing more than 30 deer near Potato Creek State Park and selling them to a game ranch in Texas.

Paul D. Papczynski, 49, of Lakeville, has been charged with a one-count violation of the federal Lacey Act, which prohibits the interstate commerce of fish and wildlife taken in violation of state law. * * *

Papczynski states in court documents that for years, including 2000, he maintained a herd of white-tailed deer behind fences on property he owns near Lakeville. He also states that he built the herd by taking in injured deer or capturing other deer around Potato Creek, some of which were captured using tranquilizers.

Papczynski also states in the documents that he took eight to 12 adult white-tailed deer and at least 15 white-tailed fawns in 2000 knowing that it violated Indiana law.

Later that year, Papczynski was contacted by James Anderton of Quinlan, Texas, and agreed to sell Anderton some of the deer. He sold the deer to Anderton for at least $4,000, Papczynski said in the documents.

Papczynski states that he knew the deer were required by Indiana law to be tested for tuberculosis before being transported across state lines. He admits in the documents that the deer he sold to Anderton were not tested and further states that just before the deer were being loaded onto a trailer in October 2000 that Anderton shaved hair off the necks of the deer to make it appear they had been properly tested for tuberculosis. * * *

The case is assigned to assistant U.S. District Attorney Donald J. Schmid, who also prosecuted the case against Russell G. Bellar this year in which Bellar pleaded guilty to three counts of an original 38-count federal indictment accusing him of violating federal drug and wildlife laws on his high-fenced deer facility near Peru.

Bellar was sentenced in May to 12 months and one day in prison, two years of supervised release, and ordered to pay more than $570,000 in fines, restitution and other court-related fees.

Schmid said the investigation leading to the charge against Papczynski was “a separate discovery” from the Bellar case. Schmid said there is an ongoing investigation but declined to comment on charges against anyone but Papczynski.

There are about 350 deer or elk farms in Indiana. Of those, 225 have DNR-issued game breeder’s permits to breed and sell white-tailed deer. The remaining farms have elk and other exotic deer species.

About a dozen offer hunting opportunities, but DNR director Kyle Hupfer announced Aug. 12 that killing white-tailed deer inside high-fenced enclosures is not legal under a game breeder’s permit. Hupfer also issued an emergency rule making it illegal to hunt elk, zebra, red deer and other exotic mammals.

Rodney Bruce, who operates a high-fenced shooting facility in southern Indiana, filed a lawsuit in Harrison County on Thursday to overturn Hupfer’s ban.

The Louisville Courier Journal has a story today on the Bruce suit (see also this ILB entry from yesterday). A quote:
Donald Blinzinger, the attorney representing Bruce, said in an interview yesterday that Natural Resources did not have the authority to issue the emergency rule.
However, Mr. Blinzinger, who headed the state department of welfare during the Orr administration, is not an attorney -- the Journal story is in error on this point.

[Update 8/29/05] Another story today in which BoseTreacy lobbyist Don Blinzinger is erroneously identified as an attorney -- this time in the South Bend Tribune:

CORYDON, Ind. (AP) -- The operator of a deer hunting preserve has filed a lawsuit seeking to stop a proposed ban on canned hunts.

The lawsuit, filed Wednesday in Harrison Circuit Court in Corydon, contends that the Indiana Department of Natural Resources exceeded its authority by planning to enforce a ban on deer hunts within enclosures beginning next year. DNR Director Kyle Hupfer announced the move earlier this month.

"It is surprising and incomprehensible that the new director of DNR has out of the clear blue sky issued a pronouncement that they (hunting preserves) are 'illegal,'" Indianapolis attorney Donald Blinzinger, who represents the Indiana Deer and Elk Farmers' Association, said Thursday in announcing the lawsuit.

Posted by Marcia Oddi on Saturday, August 27, 2005
Posted to Environment | Indiana Government | Indiana Law

Friday, August 26, 2005

Environment - Power plant, shooting range

Power plant. A proposed New Carlisle coal gasificiation plant is on the defensive, according to this story in the LaPorte County Herald-Argus. Some quotes:

“It creates a lot of anxiety,” Joe Tondu, president and owner of Tondu Corp., told the approximately 400 people in attendance about the proposed plant. “When people show up and say they’re going to build something, you think the worst can happen.”

And many do. Tondu said the St. Joseph County Council’s approval of a special use permit would allow the company to begin environmental and site studies. The Indiana Department of Environmental Management will ultimately be responsible for approving the final permits.

But even that was open for debate. That permitting process would take about nine months, Tondu officials said.

Steve Ross, St. Joseph County Commission vice president, said IDEM would just be a rubber stamp in the process and unable to police the plant’s long-term environmental impact.

Jim Ford, a managing partner in the company, said in most emissions categories the $1 billion power plant would produce substantially less pollutants than a coal burning plant. The former Allegheny Energy site was chosen because of nearby rail and electric lines. He said the plant would be almost as clean as a natural gas facility.

The technology is so clean, Tondu claimed, a gasification plant in Yokohama, Japan, is across the street from a hospital. “The technology is so clean, you can put them anywhere,” he said.

The proposed plant would use a blend of coal and petroleum coke to create a synthetic gas, according to Tondu officials. While aspects of the gasification technology are in use in other plants, the proposed site would be one of a kind. * * *

Tondu’s presentation and question-and-answer period lasted about two hours, but Tondu officials remained afterwards to address concerns one-on-one.

Allert Brown-Gort, with Michiana Quality of Life, a group lobbying the company for specific environmental impact information, said that even though the meeting was held in New Carlisle, near where the plant would be located, it should have been held at a more central location since emissions from the plant could affect both St. Joseph and Elkhart counties.

“The problem isn’t the technology,” Brown-Gort said. “It seems to be the technology and the way you do business.”

An earlier AP story appeared in yesterday's Indianapolis Star. Some quotes:
NEW CARLISLE, Ind. -- Town officials have declared their opposition to a proposed $1 billion power plant.

But the project's fate could be left up to St. Joseph County officials, not New Carlisle leaders, because the coal gasification plant is planned for just outside the town's boundaries 15 miles west of South Bend.

Town Council President Steve Hora said in a resolution that the community is against the proposal because of "insufficient information" about the Tondu Corp. project.

He said the plant could pollute the area with ash, mercury or other metals. Coal gasification produces a synthetic gas by burning coal slurry and oxygen under high pressure.

Nearly 100 people packed the New Carlisle Town Hall meeting chambers Tuesday and applauded after council members unanimously passed the resolution.

Tondu Corp., a privately held industrial development company based in Houston, is considering purchasing a site near the northern Indiana town where Allegheny Energy Supply once planned to build a $400 million gas-fired power plant.

Shooting Range. This story by Sue Lowe in the South Bend Tribune is headlined "Old range subject of suit: Mishawaka and property owner at loggerheads over cleanup." Some quotes:
MISHAWAKA -- In the 1970s, Jennie Bueche says, somebody from the Mishawaka police department asked whether they could use land behind her Dragoon Trail home for a shooting range.

"He told me they were run out of where they were," she said. "I really didn't want to do it, but I did."

More than two decades later, she's in a legal dispute with the city over that decision. Her attorney has filed a lawsuit asking that the city pay to clean up the property. * * *

She says she never charged the city anything for use of the land.

Brent Inabnit, her attorney, said that in the early 1990s, the city cleaned up the soil with the bullets in it.

In 1995, former mayor Robert C. Beutter signed an agreement that says she would not be liable for anything related to the police department's use of the land.

Inabnit said that in early 2003, after the police department stopped using the range, he sent a letter asking the city to clean up the range again.

At first the response was positive, and Inabnit said Envirocorps was hired to evaluate the property.

They took 40 soil samples, and 36 had lead in them -- 13 with enough lead to exceed state standards, according to Inabnit. He said at least some of the soil would be considered hazardous waste.

Inabnit said he and city representatives had some discussions about the city cleaning up the property. But the city wanted to buy it instead. So in October 2004, Inabnit filed suit asking that the city be ordered to clean up the property.

Mayor Jeff Rea said the city still wants to buy 11 acres of Bueche's property. It's outside the city limits, but a large pit on the land where gravel and dirt were mined in the past would make a good place to put excess dirt left over when city crews install water or sewer lines or do other underground work.

The city doesn't want to buy Bueche's house or yard, just the property behind them. "We don't want to sell," Inabnit said. "We want it fixed."

A recent letter from the Indiana Department of Environmental Management to Bueche said the department "has chosen not to pursue an investigation at this time." Steve McIntire, project manager of the State Cleanup Section, continued, "Numerous studies have shown that lead in the form of spent ammunitions has a low mobility and adverse effects are rare. "However, future reuse of this firing range land is a concern to IDEM," he continued.

McIntire wrote that cleanup strategy will depend on the proposed future use of the property. And he encouraged Bueche and the city "to work together in addressing the lead issues at the site." * * *

While the two sides haggle over Bueche's property, another city police firing range has also been the subject of some controversy. A committee of Mishawaka Common Council members is investigating disposal of materials that contained lead from the city's indoor firing range, which is being refurbished.

Posted by Marcia Oddi on Friday, August 26, 2005
Posted to Environment

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending August 26, 2005

The ILB is pleased to announce that, with the agreement of the Office of the Clerk of the Indiana Courts, the ILB will post each week the Clerk's list of the Disposition of Case by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals that week.

Here is the Court of Appeals NFP List for August 26, 2005. There are 39 cases listed this week.

For other weekly lists of Not for Publication opinions, check "NFP Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, August 26, 2005
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending August 26, 2005

Here is the Indiana Supreme Court's transfer list for the week ending August 26, 2005. Today's list includes two transfer grants, both civil cases.

For other weekly transferlists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, August 26, 2005
Posted to Indiana Transfer Lists

Environment - GAO Report on Great Lakes Initiative released

The Government Accountability Office (GAO) today released the following report: Great Lakes Initiative: EPA Needs to Better Ensure the Complete and Consistent Implementation of Water Quality Standards. GAO-05-829, July 27. Access the full report here; the highlights here. Indiana implementation is discussed specifically at pages 26-27 and 33-34.

Posted by Marcia Oddi on Friday, August 26, 2005
Posted to Environment

Indiana Decisions - Interesting Court of Appeals decision today on waiver of jury trial and applicability of Crawford v. Washington

In John M. Anderson v. State of Indiana (IndCt.App. 8/26/05), Judge Vaidik writes:

Case Summary. John M. Anderson appeals his 1999 conviction following a bench trial for molesting a three-year-old child. Specifically, he contends that he did not knowingly, voluntarily, and intelligently waive his right to a trial by jury. Because the record does not reflect that Anderson affirmatively acted to waive his right to a trial by jury, the waiver is invalid. We therefore vacate Anderson’s conviction and remand this case for a new trial. However, we also address the victim’s out-of-court statements under Crawford v. Washington and Indiana’s Protected Persons Statute because these issues will likely arise on retrial.

Posted by Marcia Oddi on Friday, August 26, 2005
Posted to Ind. App.Ct. Decisions

Indiana Decisions - Arthur Baird v. State now available online

Arthur Baird v. State of Indiana (Ind. S.Ct. 8/25/05) (discussed in this ILB entry from yesterday and today), is now available on the Court's website.

Posted by Marcia Oddi on Friday, August 26, 2005
Posted to Ind. Sup.Ct. Decisions

Law - Justice Stevens discusses "the gap that sometimes lies between a judge's desire and duty".

Linda Greenhouse of the NY Times had an interesting front-page story yesterday headlined "Justice Weighs Desire v. Duty (Duty Prevails)". Some quotes:

WASHINGTON, Aug. 24 - It is not every day that a Supreme Court justice calls his own decisions unwise. But with unusual candor, Justice John Paul Stevens did that last week in a speech in which he explored the gap that sometimes lies between a judge's desire and duty.

Addressing a bar association meeting in Las Vegas, Justice Stevens dissected several of the recent term's decisions, including his own majority opinions in two of the term's most prominent cases. The outcomes were "unwise," he said, but "in each I was convinced that the law compelled a result that I would have opposed if I were a legislator."

In one, the eminent domain case that became the term's most controversial decision, he said that his majority opinion that upheld the government's "taking" of private homes for a commercial development in New London, Conn., brought about a result "entirely divorced from my judgment concerning the wisdom of the program" that was under constitutional attack.

His own view, Justice Stevens told the Clark County Bar Association, was that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials." But he said that the planned development fit the definition of "public use" that, in his view, the Constitution permitted for the exercise of eminent domain.

Justice Stevens said he also regretted having to rule in favor of the federal government's ability to enforce its narcotics laws and thus trump California's medical marijuana initiative. "I have no hesitation in telling you that I agree with the policy choice made by the millions of California voters," he said. But given the broader stakes for the power of Congress to regulate commerce, he added, "our duty to uphold the application of the federal statute was pellucidly clear." * * *

While Justice Stevens is the only member of the court to have addressed the issue in a speech, others have used their written opinions to acknowledge the conflict between a judge's policy preferences and decisions the judge may feel forced to render because of legal precedent or judicial philosophy.

In March, for example, Justice Sandra Day O'Connor, whom Judge Roberts would succeed, dissented from the court's opinion that declared unconstitutional the execution of those who commit capital murder before the age of 18.

"Were my office that of a legislator, rather than a judge, then I, too, would be inclined to support legislation setting a minimum age of 18," Justice O'Connor wrote in her dissenting opinion in Roper v. Simmons in the course of explaining why, in her view, the Constitution did not support that outcome.

Posted by Marcia Oddi on Friday, August 26, 2005
Posted to General Law Related

Ind. Gov't. - State Personnel cracks down on employee leave policies

"State workers’ leave time pinched: Limits placed on family medical, funeral, vacation," is the headline to a story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – State personnel officials have cracked down on various policies affecting state employees’ funeral leave, vacation time and Family and Medical Leave Act benefits.

The biggest changes come in family medical leave, a federal act that requires employers to give employees up to 12 weeks of unpaid leave a year for birth, a serious health condition or to take care of an immediate family member with a serious health condition.

Employees retain their jobs and benefits.

Before Gov. Mitch Daniels’ taking over, state employees were eligible for family medical leave as soon as they were hired.

Now Debra Minott, state personnel director, is applying a federal eligibility requirement of 12 months’ employment with at least 1,250 hours worked before an employee can use family medical leave.

In another change, employees will be required to use all their available sick leave concurrently with FMLA. Employees previously had to use only up to 10 of their earned sick days.

Minott said the most traditional type of family leave is when an employee leaves for a set period, perhaps to adopt a child or get chemotherapy or take care of a parent. A second type of family leave is intermittent, such as when an employee has a health condition that has been certified by their doctor as serious and flares up sporadically.

Regarding the latter, she said some employees would call in that morning with a migraine and take an unpaid day without sacrificing a sick day. That made it especially hard, she said, to run 24-hour facilities such as hospitals and prisons.

Minott said the federal government established basic rules for family medical leave but employers are allowed to be more generous. That is what Indiana did until now.

“We had a lot of people taking FMLA in the first year and as this progressed over time there were some abuses,” she said. “We had to rein it in.”

Other changes include tweaks to the paid funeral leave policy, which no longer covers greats, such as a great-grandmother or great-grandson. It also limits steps. For instance, a stepchild would be covered but a stepbrother or stepsister would not be. * * *

Minott understands that some employees don’t like the new changes but said “we are stewards of the state’s resources and we need to use these resources for the benefit of the state.”

Posted by Marcia Oddi on Friday, August 26, 2005
Posted to Indiana Government

Ind. Gov't. - What are the BMV's plans re its void ID rules?

On 8/12/o5 the Indiana Court of Appeals issued its decision in Villegas et al v. Joel Silverman (8/12/05), which concluded: "We hold that the new identification requirements are a rule, and because they were not promulgated in accordance with the ARPA, they are void and without effect."

Last evening I read a writeup of the ruling in the Aug. 24th issue of the Indianapolis Lawyer (not available online). It concluded:

Greg Cook, director of communications for the BMV, said he could not comment on whether the agency was in favor of appealing the opinion or on the legal issues at play.

He did say the identification requirement would remain in place pending the eventual conclusion of the case.

"The process we had in place last week," Cook said, "is still in place."

I thought of this as I was working on the entry below about the DNR deer hunting rule, and reread the Aug. 13th ILB entry on both rules, that concluded:
The BMV does not appear to have been given the legal authority under IC 4-22-2-37.1 to adopt an emergency rule. That means that to correct the deficiencies in its identification requirements that the Court of Appeals cited Friday, the BMV needs to begin a formal rulemaking right away, so that it can have a valid rule in place, possibly by the end of the year. Of course, the BMV might have started this rulemaking process any time within the past three years, particularly as the legality of its ID requirements were under question.

Posted by Marcia Oddi on Friday, August 26, 2005
Posted to Ind. App.Ct. Decisions | Indiana Government

Ind. Gov't. - DNR sued over ban on deer farms

The Fort Wayne Journal Gazette has a story today by Rebecca S. Green headlined "Preserve owner suing over ban". Some quotes:

The owners of an Indiana deer hunting preserve sued the Indiana Department of Natural Resources on Wednesday after the state agency moved to ban such preserves in the future.

According to the lawsuit filed in Harrison Circuit Court, Rodney Bruce of Corydon, has a game breeders’ license and operates Whitetail Bluff 2003.

For the 2005 hunting season, Bruce has booked more than 40 customers with revenues expected to be between $150,000 and $200,000, the lawsuit said. He has also taken verbal commitments for 20 to 30 hunts during 2006.

But this month, DNR director Kyle Hupfer announced that hunting white-tailed deer and other animals behind a fence is illegal, and enforcement would begin in 2006. Hupfer also signed an emergency rule into law making it illegal to hunt exotic mammals, such as elk and zebra, inside fenced enclosures.

In the lawsuit, Bruce argues that the emergency rule should be declared null and void because the DNR lacks the authority and the power to adopt it.

Bruce also argues the rule contradicts Indiana law, and defines white-tailed deer as exotic, making it illegal to hunt them in Indiana, according to the documents.

Donald Blinzinger, who represents the Indiana Deer and Elk Farmers’ Association, issued a statement Thursday announcing the lawsuit.

For background, see this Aug. 13th ILB entry titled: "Ind. Gov't. - The DNR move to enforce fenced hunting ban, contrasted with the BMV ID 'rule'". A quote from that entry:
IC 4-22-2-37.1 allows for temporary emergency rulemakings for several agencies, including DNR [see (a)(2)]. As detailed in the press release, Hupner has used that section to immediately promulgate an emergency exotic mammal rule so that it will be in place while the permanent rulemaking is in process.

Posted by Marcia Oddi on Friday, August 26, 2005
Posted to Environment | Indiana Government

Law - "Illinois medical malpractice law faces challenges"

"Illinois medical malpractice law faces challenges" is the headline to an AP story published in the Evansville Courier& Press today. Some quotes:

Gov. Rod Blagojevich on Thursday signed a new law that attempts to hold down steep medical malpractice costs for doctors by limiting the amount of money people can collect in lawsuits against hospitals and physicians.

But the measure, which passed the Legislature in May after two years of political gridlock, appears headed to court, with trial lawyers, victims' groups and other critics claiming that the caps deny some victims their right to fair compensation in violation of the Illinois Constitution. * * *

The measure caps non-economic damages, such as for pain and suffering, that malpractice victims can win in court - a $500,000 limit when defendants are doctors, a $1 million limit against hospitals. It also gives state regulators more power to review and change malpractice rates, investigate complaints and punish bad doctors. * * *

Supporters say that capping non-economic damages in lawsuits - which about two dozen other states already do - will lower rising malpractice insurance costs that have driven doctors out of Illinois. * * *

[Keith Hebeisen, the Illinois Trial Lawyers Association's president] expects the law's caps provision to be challenged as soon as a case arises involving a catastrophically injured person unfairly affected by the ceiling on damages.

Caps have been struck down as unconstitutional before, including twice by the Illinois Supreme Court.

Posted by Marcia Oddi on Friday, August 26, 2005
Posted to General Law Related

Thursday, August 25, 2005

Ind. Gov't. - More on Indiana textbook fees

The Munster (NW Indiana) Times has a story today on textbook fees and the Nagy v. Evansville-Vanderburgh School Corp case awaiting a state Supreme Court decision. The ILB wrote about both briefly in this entry Monday, titled "Indiana textbook fees, and a possibly relevant pending appeal." Some quotes from today's story by Olivia Clarke:

Forty-one states and the District of Columbia provide free textbooks for all or most of their students -- but not Indiana or Illinois. Both states allow textbook fees to be charged to make up the cost of the books, according to study this year by the Education Commission of the States.

The Indiana Civil Liberties Union is challenging the practice of charging students a fee to pay for school nurses, counselors and alternative education as done in the Evansville-Vanderburgh School Corp.

The case claims the fees violated both the Indiana Constitution's guarantee of a free public school education and due process. The Indiana Supreme Court has yet to rule.

"We are not asking the Indiana Supreme Court to rule on textbook rental fees," although the court may address the issue, said Fran Quigley, ICLU executive director.

"... It's hard to have a state constitution provision which guarantees free public education. And it's hard to reconcile that with the fact that for kids to go to public schools, parents have to produce money." * * *

The issue is not new for lawmakers. For about 20 years the topic of free textbooks has popped up in the state legislature, said State Rep. Joe Micon, D-West Lafayette.

Micon was one of the authors of a bill during the last session that would have added a phrase in the state constitution saying children are entitled to a free public education that includes free textbooks. The bill did not get a hearing.

The price tag, between $60 million and $70 million, is what typically prevents a statewide change, he said.

"This is an issue that has always hinged on the dollars," he said. "The legislature always seems to come up with something better to spend that $60 or $70 million on. This is an expense that hits families hard, and especially hits working families hard."

Charging book rental fees allow districts to spread the cost of books over six years, but not every family can or does pay, Portage Superintendent Michael Berta said.

Posted by Marcia Oddi on Thursday, August 25, 2005
Posted to Indiana Government

Ind. Decisions - "Indiana justices approve execution" [Updated]

"Indiana justices approve execution" is the headline to an Indianapolis Star story posted on the Star website this evening at 8:25 p.m. Kevin Corcoran writes:

A sharply divided Indiana Supreme Court cleared the way Thursday for Arthur P. Baird's execution next week, saying he might be mentally ill but he's not legally insane. * * *

Indiana law prohibits the execution of people who are mentally retarded but doesn't say whether the lives of severely mentally ill killers also should be spared. The U.S. Supreme Court has not directly addressed the question of whether killing the mentally ill constitutes cruel and unusual punishment.

Writing for the Indiana court majority, Chief Justice Randall T. Shepard discounted mental health evidence [Baird's attorney, Sarah L. Nagy] submitted, saying the evidence failed to meet a standard the U.S. Supreme Court set in 1986 for such cases.

A report to the court from Dr. Philip M. Coons, a professor emeritus of psychiatry at the Indiana University School of Medicine, found Baird to be "grossly psychotic and delusional" and mentally unfit to be executed. * * *

But Shepard noted that Coons' report was not enough to justify a new round of hearings into Baird's mental state.

"He may be denying to himself that it (his execution) will actually occur. He may have a mental illness," Shepard wrote. "But read as a whole, the evidence presented simply shows Baird knows he is about to be executed because he murdered his parents."

Nagy is hoping the U.S. Supreme Court will take the case based on a lengthy dissent by Justice Theodore R. Boehm, which Justice Robert D. Rucker joined. The pair argued that Baird's claims should be heard in the court's 3-2 ruling.

Such divisions on Indiana's high court are unusual in capital punishment cases.

"It is obvious, I think, that Arthur Baird has suffered from significant mental illness dating from the time he murdered his pregnant wife and parents in 1985," Boehm wrote. "Because of its irreversibility, apart from whatever one thinks of its morality, we should err on the side of caution in carrying out an execution."

The Supreme Court's opinion in this case (BAIRD, ARTHUR P., II v. STATE OF INDIANA) is not yet available online. Here is today's entry in the Court's docket:
8/25/05 ISSUED THE ENCLOSED ORDER:
8/25/05 BECAUSE BAIRD HAS NOT MET HIS BURDEN OF ESTABLISHING A
REASONABLE POSSIBILITY THAT HE IS ENTITLED TO RELIEF ON THE
CLAIMS PRESENTED, WE DECLINE TO AUTHORIZE THE FILING OF THE
SECOND SUCCESSIVE PETITION. WE ALSO DENY HIS REQUESTS FOR A
STAY OF EXECUTION, FOR AN ORDER DIRECTING THE DEPT. OF
CORRECTION TO NOTIFY BAIRD'S COUNSEL BEFORE CONDUCTING ANY
PSYCHOLOGICAL EVALUATION, FOR APPOINTMENT OF MENTAL HEALTH
PROFESSIONALS TO EXAMINE BAIRD, FOR FUNDS TO HIRE AN INDEPENDENT
MENTAL HEALTH PROFESSIONAL TO EXAMINE BAIRD, FOR A HEARING ON
HIS COMPETENCY, AND FOR ANY OTHER RELIEF REQUESTED IN THE PAPERS
BEFORE US TODAY.
OUR RULES PERMIT, BUT DO NOT REQUIRE, A PETITION FOR
REHEARING. REHEARING SHOULD NOT BE SOUGHT IF BAIRD INTENDS
MERELY TO RAISE THE SAME ARGUMENTS WE HAVE ALREADY ADDRESSED.
IF HE DOES PETITION FOR REHEARING, HOWEVER, THE PETITION MUST
BE PHYSICALLY FILED WITH THE CLERK NO LATER THAN 12:00 P.M.,
AUGUST 26, 2005. THE STATE'S RESPONSE MUST BE PHYSICALLY FILED
WITH THE CLERK NO LATER THAN 3:00 P.M., AUGUST 26, 2005. TO
MINIMIZE ANY DELAY IN THE SERVICE AND RECEIPT OF PAPERS, THE
ATTORNEYS ARE ORDERED TO CERTIFY IN PAPERS PRESENTED FOR FILING
THAT COPIES HAVE BEEN SENT (1) BY ELECTRONIC MAIL OR HAND-
DELIVERY TO OPPOSING COUNSEL AND (2) BY ELECTRONIC MAIL TO THE
DIVISION OF SUPREME COURT ADMINISTRATION, ADDRESSED TO
GSCODRO@COURTS.STATE.IN.US. THERE WILL BE NO EXTENSIONS OF
THESE DEADLINES BY OPERATION OF APPELLATE RULE 25(C).
RANDALL T. SHEPARD, CHIEF JUSTICE
SHEPARD, C.J., AND DICKSON AND SULLIVAN, JJ., CONCUR.
BOEHM, J., DISSENTS WITH OPINION IN WHICH RUCKER, J., JOINS. KM
8/25/05 ****** ABOVE ENTRY MAILED ******
8/25/05 ISSUED THE ENCLOSED ORDER:
8/25/05 PETITION HAS FILED A "PETITIONER'S REQUEST FOR REHEARING"
AND THE STATE HAS FILED ITS "RESPONSE TO PETITION FOR REHEARING.
HAVING DULY CONSIDERED THE MATTERS RAISED THEREIN, THE COURT
DENIES REHEARING. THE CLERK IS DIRECTED TO CERTIFY OUR
PUBLISHED ORDER CONCERNING SUCCESSIVE PETITION FOR POST-
CONVICTION RELIEF IN CAPITAL CASE, FILED JULY 19, 2005 AS FINAL.
RANDALL T. SHEPARD, CHIEF JUSTICE KM
8/25/05 ALL JUSTICES CONCUR. (FOR ABOVE ORDER)
[Update 8/26/05, early a.m.] See this entry, posted last evening by Michael Ausbrook at INCourts.com. Here is a link to Corcoran's story, as published this morning in the Indianapolis Star (on page B4). Today's Star also has this editorial, titled "Today's Editorial: Execution debate warrants a wait."
Our position: Convicted killer Arthur Baird should not be put to death while issues of mental illness are unresolved. * * *

Only one of the four psychiatrists who testified at the trial pronounced Baird insane; however, several mental health professionals who have examined him since then say mental illness caused him to kill. Among them is Philip M. Coons, a professor emeritus of psychiatry at Indiana University School of Medicine, who calls it "unjust to execute an individual who suffers from a severe mental disease or defect."

Currently, the law only half agrees. The U.S. Supreme Court has outlawed executions of the mentally retarded but has not addressed the issue of the capital convict who is captive to mental illness, whether at the moment of the crime or the moment of punishment.

Similarities in the two conditions are such that, even given the hazards of misdiagnosis and fakery, mental illness deserves consideration as a defense against death and may someday get it. At least one member of the Indiana Supreme Court, Justice Robert D. Rucker, has called capital punishment "inappropriate for a person suffering a severe mental illness." In this ever-changing context, it seems rash to proceed with executions where sanity is in serious doubt.

Having lost a bid for clemency to the Indiana Parole Board Wednesday, and, by a 3-2 vote, an appeal to the state Supreme Court Thursday, Baird's attorneys are beseeching the U.S. Supreme Court to weigh his mental state as a mitigating factor. Conceivably, the court could break new ground by taking on the case; or it could simply issue a stay of next Wednesday's date for lethal injection.

An AP story by Mike Smith appears today in the Louisville Courier Journal. Some quotes:
Sarah Nagy, an attorney for Baird, said that he was clearly insane and that she planned to appeal the ruling to the U.S. Supreme Court.

"What this case boils down to and what it has always boiled down to is how we as a society are going to treat our mentally ill," Nagy said * * *

Justices Theodore Boehm and Robert Rucker dissented from the majority ruling, saying the meaning of "insane" had not been definitively addressed by the U.S. Supreme Court.

Boehm said attorneys had cited facts that "at the very least lead one to conclude that Baird is only marginally in touch with reality."

Boehm said Baird had shown a "reasonable possibility" that he may be insane and should be allowed to pursue further litigation to make that case.

Barring a favorable court ruling or clemency by Daniels, Baird would be the fifth person executed in Indiana this year.

Finally, today's Fort Wayne Journal Gazette contains an editorial titled: "Clemency for Baird: This is the one, governor." It begins:
It’s been an unprecedented year for Indiana executions – five since Gov. Mitch Daniels took office in January. He has expressed his concern about the death penalty. But if Daniels didn’t think there was sufficient reasons to stop the previous four executions, surely the sentence involving a man whom a well-respected Indiana University psychiatrist deemed “grossly psychotic and delusional” is the one that most demands clemency. Commuting his sentence to life in prison without parole would be a merciful act.

Posted by Marcia Oddi on Thursday, August 25, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Law - More on Law School Rankings

Remember the flurry last spring when the U.S. News rankings came out, and IU Law-Indianapolis had tumbled precipitiously? (If not, type "law school rankings" into the search box in the right column.)

Well, I just ran across this article, from the Education Life Supplement to the NY Times that came out a few weeks back (thanks to Ernie the Attorney for spotting it). Some quotes from the lengthy report:

As part of its methodology, U.S. News factors in how much a law school spends per student. But just how those costs are calculated has become a matter of considerable discussion, both in legal education circles and at the American Bar Association.

Consider library costs at the University of Illinois College of Law in Urbana-Champaign. Like all law schools, Illinois pays a flat rate for unlimited access to LexisNexis and Westlaw's comprehensive online legal databases. Law students troll them for hours, downloading and printing reams of case law. To build user loyalty, the two suppliers charge institutions a total of $75,000 to $100,000 a year, far below per-use rates.

But in what it calls a longstanding practice, Illinois has calculated a fair market value for these online legal resources and submitted that number to U.S. News. For this year's rankings, the school put that figure at $8.78 million, more than 80 times what LexisNexis and Westlaw actually charge. This inflated expense accounted for 28 percent of the law school's total expenditures on students, according to confidential data filed with U.S. News and the bar association and provided to The New York Times by legal educators who are critical of rankings and concerned about the accurate reporting of data. * * *

"Insofar as these polls affect student choices, the notion that I'm losing students because of this is insane," says Larry Kramer, dean of Stanford Law. He is considering whether he might include water, garbage removal, electricity, plumbing and property taxes as part of the university's spending per student. Stanford (U.S. News No. 3) is feeling the heat from Yale (No. 1), Harvard (No. 2) and Columbia (No. 4) - schools that report 120, 64 and 83 percent, respectively, more than Stanford in indirect expenditures and overhead for each full-time student, according to the confidential American Bar Association data.

Mr. Kramer chalks up the difference to accounting practices: unlike many schools, Stanford Law does not write the check for its utilities. Instead, the central university receives the law school's tuition, deducts an amount for utilities and hands a portion of the remainder to the school. "Now I have to think about going to the university and saying that I need you to disaggregate the law school from this administrative process to get that money counted for U.S. News," Mr. Kramer says.

Playing with the numbers is part of academia: with a higher ranking, a college stands to gain more prestige, competitive students, gifted faculty and alumni donations. But the problem is magnified in legal education, partly because U.S. News faces no significant competition. Unlike M.B.A. applicants, who can choose from a range of commercial ranking systems with varying emphases and methodologies, U.S. News has maintained a virtual monopoly in the law school realm since it started its annual ranking 16 years ago. In the prelaw community, U.S. News rankings are gospel, so law school deans find themselves under tremendous pressure to adopt polices to improve their standing.

The U.S. News & World Report survey truly dominates our lives in ways you couldn't imagine," Paul L. Caron, a law professor at the University of Cincinnati, said in opening remarks at the "Next Generation of Law School Rankings" symposium this spring in Bloomington, Ind. Attended by 60 professors, deans and students from around the country, the conference was largely devoted to how the survey affects legal education.

Posted by Marcia Oddi on Thursday, August 25, 2005
Posted to Indiana Law

Ind. Law - Zoning dispute in Lake County over whether request was denied

The Munster (NW Indiana) Times has a story today about a zoning dispute, headlined "Concrete controversy goes to court". Some quotes:

Bruce Lambka filed a petition on behalf of Tim Heidbreder asking the court to reverse a decision the Crown Point Board of Zoning Appeals made in July. The board voted to uphold the city's denial of Heidbreder's request for a building permit at 1010 Millennium Drive. * * *

According to Lambka, state law holds that a special-use request, which is needed to build a concrete plant in the city, is deemed approved 90 days after the Board of Zoning Appeals makes its recommendation, unless the City Council votes to deny it. The Board of Zoning Appeals recommended approval of the special-use permit for Prairie Material's proposed plant on March 28, and the City Council voted to grant the special use April 4. Klein's veto, Lambka has argued, only deprived the City Council's vote of any legal effect. Along that line of thinking, Lambka said Heidbreder should have been granted his special use on June 26 and should be free to build his own plant.

During the July zoning board meeting, Assistant City Attorney Pat Schuster said the city's position was that once the mayor vetoed the measure, it died. The City Council's failure to override the veto was equivalent to a denial, he said.

According to Lambka, the city has 20 days to respond to the petition.

Posted by Marcia Oddi on Thursday, August 25, 2005
Posted to Indiana Law

Ind. Gov't. - Moves by the Indiana Gaming Commission

Two stories today on the Indiana Gaming Commission by the Evansville Courier& Press's Jennifer Whitson. The first reports that the agency has posted openings for new "gamng agents" to "take over casino policing duties from the Indiana State Police."

The second is headlined: "Indiana looking into digital security for casinos." Some quotes:

"Our rules don't currently have specifications for digital recordings," said Indiana Gaming Commission Deputy Director Jennifer Arnold. "The technology is changing and we want to make sure that Indiana casinos have the ability to upgrade if they wish to."

Posted by Marcia Oddi on Thursday, August 25, 2005
Posted to Indiana Government

Environment - More on Blackford County CAFO denial, and related matters

Yesterday (second item) the ILB linked to the Muncie Star-Press report on the Blackford County Board of Zoning Appeal denial of zoning approval to a proposed CAFO.

Today the Star-Press's Seth Slabaugh continues:

HARTFORD CITY - The Indiana Department of Environmental Management issued a permit this week allowing Oolman Dairy to build a concentrated animal feeding operation (CAFO) housing 2,000 cows.

But the permit is worthless unless Dutch dairy farmers Gerwin and Marinke Oolman file a lawsuit to overturn a decision of the Blackford County Board of Zoning Appeals halting the project.

"The ball's in the dairy's court right now," said Liz Thomas, one of nearly 200 people who crowded into the Blackford County Courthouse on Tuesday night to oppose the dairy's application to the BZA for a special exception.

"No decision has been made yet (on a lawsuit)," Anthony Crowell, a Bluffton attorney representing the Oolmans, said Wednesday.

Meanwhile, opponents have not decided whether to appeal the permit issued by IDEM because they have not yet seen IDEM's written responses to concerns raised by opponents at a hearing on June 1, Thomas said.

"A year ago, they (the Oolmans) could've just brought a copy of the IDEM permit in and I would have issued a building permit," said Lisha Chrisman, executive director of planning and zoning in Blackford County.

Since then, however, Blackford County, Hartford City, Montpelier and Sharmock Lakes officials approved a zoning amendment subjecting CAFOs to the authority of the BZA.

While the IDEM permit regulates the Oolmans' proposed 20-million-gallon manure lagoon and the application of manure onto farm fields, it does not control noise, odor, air pollution and other concerns raised by opponents. But those issues are regulated by the BZA as a result of the new zoning amendment.

Another Slabaugh story today reports:
SHIDELER - A Ball State University scientist is comparing the proposed Shideler agricultural bio-enterprise park to a power plant that he and other remonstrators stopped from being built near DeSoto several years ago.

"This is terrifying," said associate professor of chemistry James Rybarczyk, who was applauded by a crowd of about 100 angry citizens Wednesday night.

The 800-acre ag park is being promoted by grain farmer Joe Russell, grain elevator owner Fritz Schnepf and others hoping to attract an ethanol or soy biodiesel production facility and other agri-business.

An ethanol plant is a "chemical refinery," Rybarczyk said during the meeting organized by citizens. "Mr. Russell, have you ever worked in a chemical plant? Have you ever seen a refinery explode?"

Angry residents who live near the proposed ag park pointed fingers and shouted at Russell at the meeting.

The professor called soy biodiesel and ethanol plants "hard-core industry that belongs in an industrial park, not out here" in farm fields.

Rybarczyk urged Russell, president of county council, to withdraw the re-zoning petition for the project and form a committee to spend more time thinking about potential ag parks. * * *

Concerned citizens signed a petition calling the ag park project "a disaster for the future of Shideler."

They are also concerned that the ag park will attract not only bio-fuel production facilities but also concentrated animal feeding operations (CAFOs). * * *

Though the proposed rezoning would permit CAFOs in the ag park, Russell and Schnepf said there were no plans to actually build any of them.

"CAFOs are a dead issue as far as we are concerned," said Schnepf, adding that covenants would be written to exclude CAFOs.

Shideler was picked as the site for an ag park because it is served by one of only two grain elevators left in Delaware County and also has a railroad, a state highway and other infrastructure running through it, Russell said.

For background, see this Aug. 23 entry (last item).

The Wabash Plain Dealer also has a story today on the Blackford County Zoning Board decision. The story, from the AP, also ties in the proposed CAFO in Kentland:

Plans for large dairy farms have raised concerns elsewhere.

The town of Kentland and 13 individuals are going to court to fight a 4,200-head mega-dairy that has received approval from the Indiana Department of Environmental Management and local planners.

Gerrit Dekker of Oxford is planning the dairy for land near Kentland, 40 miles northwest of Lafayette along the Illinois border.

Kentland and the 13 individuals sued the Benton County Board of Zoning Appeals, claiming it violated Indiana's Open Door Law when it held an unadvertised executive session during a meeting in 2004. The closed-door session occurred during the board's regular meeting just before it voted to approve an exemption allowing the dairy farm.

See also these 8/23/05 (4th item) and 8/22/05 ILB entries.

Posted by Marcia Oddi on Thursday, August 25, 2005
Posted to Environment

Ind. Decisions - Marion County Superior Court judge rules police can be sued for car chases

A front page story today in the Indianapolis Star, by Kevin Corcoran, reports:

A Marion County judge ruled Wednesday that a bystander injured in a 1999 high-speed police chase can sue the city and Indianapolis police for damages arising from his injuries.

Superior Court Judge David Dreyer rejected the city's claim that officers involved in the 50-second chase, which reached speeds of up to 80 mph, had "law enforcement immunity," a concept that has blocked other lawsuits after high-speed chases went awry.

"Police officers engaged in a chase are not entitled to immunity for negligence," Dreyer concluded. "It is therefore left to a jury to decide the fault in this case, that is, who caused the accident: the police officer, the suspect who chose to flee, or a combination of both?" * * *

In his ruling, Dreyer said the state's tort-claim law does not prohibit lawsuits involving careless use of police vehicles -- even when police are trying to enforce the law.

Instead, Dreyer stated, another state law applies that says operators of emergency vehicles have a "duty to drive with due regard for the safety of all persons" and operators can be held liable for "reckless disregard for the safety of others."

Dreyer cited an appellate court ruling in a Lake County case issued in January. A bystander there was allowed to sue Gary police after an officer collided with his vehicle during a chase, causing injury.

The decision cleared an appellate court and is before the Indiana Supreme Court, which heard oral arguments in June. It typically takes the court months to issue a ruling. The court could uphold, reverse or modify that appellate ruling, reshaping the landscape for victims of police chases.

Dreyer's ruling and the Lake County case would lift a heavy burden on plaintiffs, who now must show police broke the law or acted with criminal intent when engaging in chases, said Scott A. Benkie, an Indianapolis lawyer who's challenged police immunity in the past and lost.

The Lake County case referenced is Jeffrey Patrick, et al v. Richard Miresso. Oral arguments before the Indiana Supreme Court took place June 21, 2005. The summary read:
While driving his police vehicle in pursuit of a suspect, officer Jeffrey Patrick was involved in an automobile accident with Richard Miresso. Miresso filed a complaint against officer Patrick, the City of Gary, and the Gary Police Department. The Lake Superior Court denied the defendants’ motion for summary judgment. On interlocutory appeal, the Court of Appeals affirmed. Patrick v. Miresso, 821 N.E.2d 856 (Ind. Ct. App. 2005), vacated. The Supreme Court has granted a petition to transfer the case, thereby vacating the Court of Appeals’ opinion, and has assumed jurisdiction over the appeal. Attorney for Appellants; Stephen Bower of Merriville, IN. Attorney for Appellee; Steven Etzler of Highland, IN.
Watch the oral argument here, via the Supreme Court's website. Here is the link to the now-vacated Court of Appeals decision from Jan. 31, 2005.

Posted by Marcia Oddi on Thursday, August 25, 2005
Posted to Ind. Trial Ct. Decisions

Ind. Law - Star argues for release of more records in 2000 Bob Knight firing

The Indianapolis Star has a story today by Tom Spalding, headlined: "Star questions trustees' role in Knight probe: Newspaper's attorney argues in court that IU should release records on 2000 investigation." Some quotes:

BLOOMINGTON, Ind. -- Former Indiana University President Myles Brand wanted both an in-house and an inexpensive investigation of then-basketball coach Bob Knight. So in 2000, he turned to two loyal trustees.

Those trustees were also attorneys, and their quick but detailed probe eventually led to the coach's ouster.

But their dual role -- as both attorneys and trustees -- was called into question Wednesday by an attorney for The Indianapolis Star who maintains more records on Knight's firing should be released. * * *

The university maintains that information about Knight compiled by now-former trustees Eichhorn, Bloomington, and Walda, who now practices law in Indianapolis, is protected by attorney-client privilege. The two men were not paid a salary for their work but were reimbursed for their expenses.

A special judge, Morgan Superior Court Judge Jane Spencer Craney, called the hearing to determine whether some -- or none -- of that investigative material in question should be released.

A recent Indiana Court of Appeals ruling declared some documents off-limits. Those same appellate judges, however, have ruled that the university cannot decree that all records on the topic remain secret because some of the information they contain may not be confidential. Information that is opinion, or involves legal theory, can be blacked out, the appellate court said, and still be released.

The Star's attorneys want documents that might contain public information, including notes from an interview with a member of the IU athletic department about whether Knight choked Reed in 1997 or displayed soiled toilet paper to players, as some have alleged. * * *

Craney said she expected attorneys on both sides to file additional arguments. She did not offer a timetable for when she hoped the case would be resolved.

I believe the "recent Indiana Court of Appeals ruling" referenced (please correct me if I'm wrong) is Indiana Newspapers dba The Indianapolis Star v. The Trustees of Indiana University (May 2, 2003), available here.

Posted by Marcia Oddi on Thursday, August 25, 2005
Posted to Indiana Law

Wednesday, August 24, 2005

Ind. Courts - St. Joseph probate judge "rethinking use of mandate powers"; Mongomery County judges "pick fund to pay mandate"

"Nemeth rethinking mandate: Stalemate between judge, county officials may be near an end" is the headline to a story by James Wensits in today's South Bend Tribune. Some quotes:

SOUTH BEND -- Probate Court Judge Peter J. Nemeth said Tuesday that he is leaning against the use of his mandate powers to require county officials to approve $10,000 pay raises he has requested for two Frederick Juvenile Justice Center employees.

The comment signaled the possibility of ending a stalemate between Nemeth and St. Joseph County government officials that has created bitter feelings on both sides during recent months.

Nemeth, who oversees the juvenile court, had asked for the raises last spring, but met resistance from some council members due to budget and other concerns. * * *

Council member Mark Root, R-District I, called it "deeply ironic" that the council was even considering the juvenile justice center raises in light of the proposed budget cuts.

Nemeth said after the council vote that he has not made a final decision on whether to pursue the mandate action but will take a "hard look" before making his decision.

The council action followed a public hearing on the 2006 county budget, and the judge indicated that he was moved, both by the county's precarious financial condition and by the likelihood that most county employees will not get any raise next year.

Nemeth said he is also concerned about the cost to the county should there be a mandate action.

Last Saturday, Aug. 20, the ILB had this entry "on the action by Montgomery County judges mandating appropriations for staff raises." Today the Crawfordsville Journal Review reports:
Montgomery County judges on Monday directed which county fund will be used to pay controversial mandated court employee raises.

In an order filed in Montgomery County courts amending their earlier mandate, Judges Thomas Milligan, David Ault and Peggy Lohorn told the county auditor the money necessary to equal the ordered $10,000 raises for the rest of the year should come from account 0200, which contains unappropriated funds and is titled “Bond Administration Fee.”

Further, the courts directed the Montgomery County Council to fix the 2006 salaries for courthouse employees plus the raises already granted.

The mandate was filed Aug. 16 to help stem turnover in the county court system.

And a reminder that my first column in Res Gestae will appear in the September issue. The column is called "To elaborate ...". I will use the longer format to investigate and expand upon topics first mentioned in The Indiana Law Blog. The topic of my first column is -- judicial mandates.

Posted by Marcia Oddi on Wednesday, August 24, 2005
Posted to Indiana Courts

Environment - Stories today include mountaintop mining issues in Kentucky; CAFO denial; NE States to Freeze Powerplant Emissions

Mountaintop mining. The Louisville Courier Journal has a story today headlined: "Coal mining rule may be relaxed: Some fear proposal endangers streams." Some quotes:

HAZARD, Ky. -- Environmentalists took aim yesterday at a planned federal study that some say will be used to justify changing a 22-year-old rule restricting mountaintop coal mining within 100 feet of streams.

Critics say easing the restriction would result in polluted Eastern Kentucky streams, while supporters argue the change would benefit the coal industry without hurting the environment.

At a public meeting last night in Hazard, about 50 people exchanged ideas on how the federal Office of Surface Mining should study the environmental impact of the industry-backed proposal to change the regulation. * * *

The meeting came 17 months after federal mining regulators held a public hearing in Hazard on the proposed rule change.

At that March 2004 meeting, environmentalists criticized changing the rule, which restricts dumping rocks and debris from mined mountaintops within 100 feet of a stream. Companies can mine within the so-called "buffer zone" only after showing that the debris won't damage streams.

The wording of the restriction has been the subject of several lawsuits and highlighted a need to revise it, Gauldin said. * * *

David Hartos, an OSM scientist who led last night's meeting, said the agency would explore options that include keeping the regulation as it is; clarifying it to explain when mining can occur within 100 feet of streams, as the mining industry contends the proposal would do; and strengthening it to minimize the presence of rock and debris taken from a mine site. Hartos said it would take 18 months to two years to reach a final decision.

Over the past 15 years, at least 700 miles of streams have been filled with rocks and dirt from mined mountains in Eastern Kentucky, southern West Virginia, western Virginia and eastern Tennessee, according to a government survey.

CAFOs. "Dairy CAFO denied" is the headline to this Seth Slabaugh story today in the Muncie Star-Press. Some quotes:
HARTFORD CITY - Dutch dairy farmers Gerwin and Marinke Oolman's dreams of building a $13.5-million concentrated animal feeding operation (CAFO) near here were shattered Tuesday night by the Blackford County Board of Zoning Appeals.

About 200 opponents applauded and cheered the decision.

"It's over," one remonstrator shouted. "Get 'em outta here."

Some of the opponents arrived with protest signs. One read, "Welcome to Stinkyville. Population 2,000 cows."

The Oolmans hugged each other after the meeting and appeared to be crying. Their attorney, Anthony Crowell, shielded the couple from The Star Press, explaining, "They're pretty emotional right now."

Three of the five BZA members - firefighter Ron Kreischer, USDA computer specialist Dave Beatrice, and retired 3M supervisor Larry Langdon - voted to deny the Oolmans' application to present new evidence to the board.

On June 7, the couple withdrew their application for a special exception after being told by BZA attorney Dean Young that they had failed to provide evidence during a hearing in May that they could meet noise, odor, air pollution, water pollution and various other local standards.

Crowell was not present at the meeting in May when the Oolmans' consultants presented evidence to support the project. Crowell has threatened to sue the BZA if it did not allow the Oolmans to present new evidence, but in an interview after the meeting he said he and his clients would have to sit down and evaluate their next step.

"There was a full and fair hearing" in May, Young advised the board Tuesday night. It was his opinion that the Oolmans should not be allowed to present new evidence. "Where does it end?" he asked.

Power plants. "9 States in Plan to Cut Emissions by Power Plants" headlines this NY Times story today. Some quotes:
Officials in New York and eight other Northeastern states have come to a preliminary agreement to freeze power plant emissions at their current levels and then reduce them by 10 percent by 2020, according to a confidential draft proposal.

The cooperative action, the first of its kind in the nation, came after the Bush administration decided not to regulate the greenhouse gases that contribute to global warming. Once a final agreement is reached, the legislatures of the nine states will have to enact it, which is considered likely.

Enforcement of emission controls could potentially result in higher energy prices in the nine states, which officials hope can be offset by subsidies and support for the development of new technology that would be paid for with the proceeds from the sale of emission allowances to the utility companies.

The regional initiative would set up a market-driven system to control emissions of carbon dioxide, the main greenhouse gas, from more than 600 electric generators in the nine states. Environmentalists who support a federal law to control greenhouse gases believe that the model established by the Northeastern states will be followed by other states, resulting in pressure that could eventually lead to the enactment of a national law.

California, Washington and Oregon are in the early stages of exploring a regional agreement similar to the Northeastern plan. The nine states in the Northeastern agreement are Connecticut, Delaware, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont.

MORE environment stories may follow later today.

Posted by Marcia Oddi on Wednesday, August 24, 2005
Posted to Environment

Ind. Courts - Reports of Marion County court transcript work being done in Hong Kong

The Indianapolis Star has a story today by Kevin Corcoran, titled "Court records sent abroad: Trial and hearing tapes were farmed out to Hong Kong for transcription, in violation of rule." I had to read it twice to get the gist, which seems to be that a shorthand reporter told a Porter County judge that a company in Hong Kong was doing work from Marion County. The Poter County judge confirmed this report with the Hong Kong company, then notified Marion County officials. Some quotes:

The outsourcing of what is supposed to be an in-house court function has alarmed Indianapolis judges because these records often contain sensitive information and are critical for appellate judges to understand what transpired in courtrooms months or years before.

Local officials have informed the Indiana Supreme Court of the breach, and the court, which enforces rules on the handling of court records, is awaiting information from Marion County.

"This is prompting a thorough investigation," said Marion Superior Court Judge Jane Magnus-Stinson, a member of the court's three-person executive committee. "We're talking about the record that goes up on appeal. If it's wrong, that's big stuff."

She said no judge is believed to have authorized a court employee or court employees to send official trial tapes offshore. * * *

Marion County's judicial leaders are trying to figure out how much work was sent overseas in violation of a local court requirement that transcriptions be done in-house by county employees to protect against privacy violations -- including identity theft -- and to ensure accuracy.

At least one court reporter has acknowledged some work on major felony cases was sent to a private firm, said Mark Renner, the Marion Superior Court administrator.

Renner declined to release the name of the court reporter or the judge for whom the reporter works. The employee has not been reprimanded but could face disciplinary action, including a possible dismissal.

Renner said the breach occurred after an experienced court reporter hired an Indianapolis transcription firm, Baynes & Shirey, which does business as ClearPoint Legal, to prepare transcripts. That work was then outsourced to Scriptero, a Hong Kong company that has more than 50 clients from all over the world that demand at least 4,000 transcripts a year, according to court officials and the company's Web site. * * *

No one is accusing either firm of wrongdoing. Renner said he intends to send a letter today to Baynes & Shirey asking for a complete list of proceedings the firm has transcribed for Marion County's court system.

On its Internet site, Scriptero says it is often hired to transcribe depositions, which usually are closely reviewed for accuracy by participants, and that it uses only native-language transcriptionists. The Hong Kong firm boasts a 99.75 percent accuracy rate, but that's been of little consolation to local officials.

"This assignment of transcripts to anyone other than another Superior Court reporter shall cease immediately unless the Judge of your Court gives you express permission to so assign the responsibility of transcription to some outside entity," Renner wrote in an e-mail sent Friday to court officials.

Another version of how the story broke is at the end of the piece:
Tina DeBone, president of the Indiana reporters association, said she blew the whistle to court officials but did not name any of the firms involved. She said no Porter County judges were involved.

DeBone said she heard about the violation from a court reporter in Arizona who had been approached by the Hong Kong company. DeBone, a victim of identity theft, said she was worried about sensitive information falling into the hands of terrorists who might use it to enter the United States.

Posted by Marcia Oddi on Wednesday, August 24, 2005
Posted to Indiana Courts

Ind. Gov't. - Governor appoints two to the Utility Regulatory Commission

There are a number of stories today on the Daniels appointments. Here is the Governor's press release. The last paragraph reads:

Following two application periods and two rounds of interviews, the IURC Nominating Committee, headed by Mike Sample, recommended six candidates for the governor’s consideration based on education and academic honors received, professional experience and reputation, financial interests in the utility industry, and public service.
An ILB entry from August 17 gives the names and backgrounds of the six nominees.

the Indianapolis Star reports the appointments today in its Busiess Section, in a story by J.K. Wall headlined: "Utility insiders will now regulate their industry: Watchdog criticizes appointments as letting 'fox guard the henhouse.'" Some quotes:

Gov. Mitch Daniels Tuesday named two men with experience in the utility industry to the Indiana Utility Regulatory Commission, immediately drawing criticism from the state's most active consumer group.

David Lott Hardy, a Fort Wayne attorney and a former lawyer for PSI Energy, was named chairman. Greg Server, a Republican state senator and utility executive from Evansville, also was appointed to the board.

Jerry Polk, an attorney for the Citizens Action Coalition of Indiana, bristled at the action.

"I don't consider having employment experience at one of the utility companies a good thing. It's like having a fox guard the henhouse," Polk said.

Daniels spokeswoman Jane Jankowski said, "We would be foolish not to capitalize on utilizing individuals who bring as much knowledge as these two individuals do."

The Fort Wayne Journal Gazette has a story today by Niki Kelly headlined "Local attorney will head state utility commission" Some quotes:
INDIANAPOLIS – Gov. Mitch Daniels on Tuesday named a Fort Wayne attorney as chairman of the Indiana Utility Regulatory Commission, which controls rates and oversees other financial aspects of more than 600 utility companies in Indiana.

David Lott Hardy, 61, has focused on utility-related law throughout much of his career. Since 1997, he has worked out of his Fort Wayne home providing legal or consulting help on utility issues and has expertise in negotiation, contracts, litigation, finance and administration. * * *

Hardy doesn’t have an over-aggressive agenda in mind, saying he wanted to first focus on learning the ropes of the job from current chair William McCarty, whose term expired in April. He has continued to serve until his successor was named.

From 1985 to 1997, Hardy worked at several law firms in Louisville, often representing large companies as ratepayers in rate adjustment cases.

He has been intrigued by public utilities since college and got his first taste in the field when he went to work for Public Service Co. of Indiana in Plainfield in 1969. He left 16 years later as assistant general counsel.

Hardy will be chairman of the five-member commission, which regulates electric, natural gas, telecommunications, steam, water and sewer utilities. * * *

Hardy appears to be a bit of an enigma in Allen County. On Tuesday, after his appointment, several local Republicans and Democrats couldn’t identify him and had no information about him. A native Hoosier, Hardy was born in Bluffton and grew up in Geneva. As for his low profile? He simply says he has led a temperate life and is not a politician.

In contrast, State Senator Greg Server of Evansville was the other appointee. Jennifer Whitson of the Fort Wayne Journal Gazette reports today:
INDIANAPOLIS - Evansville state Sen. Greg Server will resign his Senate seat to take an Indianapolis-based utility regulatory job.

Gov. Mitch Daniels announced Server's appointment Tuesday afternoon and Server said he will sell his Evansville house and move to Indianapolis to begin work as soon as possible.

The appointment is to a full-time post on the five-member Indiana Utility Regulatory Commission that oversees what utilities can charge consumers and signs off on the company's financial dealings. It pays $87,223 annually.

"It's a very challenging time for the IURC," Server said, listing expanding broadband coverage and maintaining cheap electric rates to spur economic development as examples.

Server has served in the state Senate since 1980 and before that served for years in the House of Representatives. "You get a lot of satisfaction in helping make things happen," he said. "It's been a great experience."

Posted by Marcia Oddi on Wednesday, August 24, 2005
Posted to Indiana Government

Tuesday, August 23, 2005

Ind. Decisions - DUI coviction reversed by Court of Appeals

Timothy M. Flanagan v. State of Indiana (8/23/05)

Judge Vaidik concluded:

This case is similar in several respects to Weida v. State, 693 N.E.2d 598 (Ind. Ct. App. 1998), reh’g denied, trans. denied. Weida was arrested for and convicted of operating while intoxicated after he drove his truck into a ditch. Among other things, Weida appealed his conviction on the basis that the State failed to provide evidence that he was driving “while” intoxicated. We rejected his claim of insufficient evidence regarding the temporal element of the crime because the evidence established that Weida had been drinking at a local tavern before driving his truck into the ditch; the officer reported on the scene within five to seven minutes after the accident was reported; the truck was not in the ditch when the officer had driven by one hour earlier; and that a breath test was administered to Weida within three hours of the accident, which indicated a blood alcohol level of .22. We explained that “[u]nder such circumstances, intoxication at the time the person operated the vehicle may be presumed.”

We cannot reach the same conclusion in this case. Deputy McVoy first spotted the vehicle with Flanagan and Kamphulusa standing outside of it around 4:00 p.m. Deputy McVoy testified that he did not know how long the vehicle had been sitting on the side of the roadway before he first encountered it. After arresting Flanagan and returning to the vehicle to inventory and secure it, Deputy McVoy recovered several Budweiser cans in the back floorboard of the vehicle. Flanagan admitted to Deputy McVoy that he had consumed some beer. In contrast to Weida, there was no evidence presented in this case as to when Flanagan consumed alcohol. This is a critical piece of evidence without which the State cannot sustain its burden. This is so because it could be that Flanagan consumed beer after the vehicle broke down, and when the beers were all gone, the men decided to venture to a nearby store to call for assistance. Consequently, the State failed to meet its burden of proving beyond a reasonable doubt that Flanagan operated a vehicle while intoxicated, and his conviction for that offense must be reversed.

Reversed.
SHARPNACK, J., and MAY, J., concur.

Today's Flanigan decision brings to mind this AP story from last month:
Associated Press
Jul. 27, 2005 08:25 AM

PORTAGE, Ind. - Drunk driving can also be drunk pushing. At least to police in Portage, Ind.

Kaylyn Kezy and Melissa Fredenburg both face DUI charges after the car they were pushing crashed into a parked car. Police say the women took turns pushing the non-running car while the other steered.

After the accident, officers say both women tested with a blood-alcohol level more than twice the legal limit.

Prosecutor Adam Burroughs admits the case might be a tough one to prove in court. But he notes the women were in effect operating the vehicle - even though the car wasn't running at the time.

Posted by Marcia Oddi on Tuesday, August 23, 2005
Posted to Ind. App.Ct. Decisions

Environment - Several stories today [Updated]

Mongo River. I have a gripe with the Fort Wayne Journal Gazette. Last Thursday they had a story (see ILB entry here) saying that the LaGrange County Commissioners were having a special meeting the following night and were expected to make an announcement about the Mongo River dispute, about which their editor, Frank Gray, had devoted two full columns. So what happened?! I have not been able to find another word about it.

[Update to above-story at 5:20 p.m. I have received an e-mail from editor Frank Gray. The commissioners apparently have not declared the river navigable, but have tried to address the goose hunt problem , where the river in past years has been declared off-limits for several weeks in the fall to anyone but hunters:

Dear Ms. Oddi:

We had an item in Tuesday's paper, pointing out that the river will be
opened to townspeople in the afternoons of the two-week goose hunt,
freeing up the Pigeon River for Labor Day tourists and for the town
festival the following weekend. Commissioners asked for additional time,
which irritated some people, but it was noted that they have
accomplished more in three weeks than the town had in four years, so it
was advised people give them the time they ask for.

Frank Gray

Thanks to Mr. Gray at the Fort Wayne Journal Gazette for the update.]

Power plant. "Peabody can proceed without permits" is the headline to this story in the Evansville Courier& Press. Some quotes:

OWENSBORO, Ky. - Construction on a power plant in western Kentucky's Muhlenberg County can move forward despite the lagging process surrounding its air quality permit, state environmental officials said.

There is no need for every permit to be granted before construction on the Peabody Coal Co. Thoroughbred plant begins, said Chuck Wolfe, spokesman for the Environmental and Public Protection Cabinet. "Ongoing legal action over the air permit does not preclude the building of Thoroughbred," Wolfe said. "Peabody has a legal permit to construct. The company made the business decision not to do so." * * *

Company representatives say construction won't begin until the permitting process is complete. * * * "We're looking for certainty for our development," Sutton said.

State representatives have clamored for construction on the plant to begin while progress on the its counterpart in Illinois moves forward. Muhlenberg County officials traveled to Frankfort last week to request construction begin soon.

Wetlands. The Louisville Courier Journal reports today in an AP story:
NDIANAPOLIS -- Two Indiana wetland projects will share $1.6 million in federal money to restore and protect areas used by migratory birds and other wildlife.

Indiana will devote $1 million to restore wetlands along the flood plains of the Wabash River, Indiana's official state river.

Another $60,362 will go toward restoring the Limberlost and Loblolly marshes in east-central Indiana. Early 20th century author Gene Stratton-Porter immortalized both marshes in her novels, nature books and poems.

[More]

Mega-Dairies. Updating the ILB entry yesterday on the Town of Kentland fighting an IDEM-approved 4,200 head mega-dairy, see this story today by Curt Slyder in the Lafayette Courier & Journal. Some quotes:

MONTICELLO -- A special judge wants more input before deciding if the Benton County Board of Zoning Appeals violated Indiana's Open Door Law during a meeting last year where it approved a special exception for a 4,200-head dairy farm between Kentland and Earl Park. * * *

Earlier this month, the Indiana Department of Environmental Management issued a permit for the dairy farm. But the state agency's permit notes that any underground tiles discovered during construction "must be removed and redirected no less than 50 feet from the structure." The land where the tile was must then be earth-filled to the level of the surrounding area.

The town of Kentland and several individuals claim the private discussion by the BZA was an illegal executive session. They're suing the BZA to get the decision overturned.

Indiana law does not permit executive sessions to be held during a public meeting. It also bans a meeting from being recessed for an executive session, then reconvened. And according to attorney Steven Ryan, that's what happened.

"Shortly before the board voted, chairman Wayne Buck announced they'd hold a short executive session," Ryan told the court. Plus "the meeting was never published as an executive session contrary to Indiana law."

The story includes a link to a "copy of the Indiana Department of Environmental Management's permit for a dairy farm by Global Agri Horizon Dairy LLC."

Agri-business zones. Kemplog.com has a link today to an August 18 Seth Slabaugh story in the Muncie Star-Press that begins:

SHIDELER - An 800-acre agricultural park is being proposed in hopes of attracting an ethanol or soy biodiesel production facility or other agricultural enterprise.

The Muncie-Delaware County Planning Commission is scheduled to consider a petition to rezone the property north and south of Shideler on Sept. 1.

The commission would make a favorable or unfavorable recommendation to county commissioners, who have final jurisdiction.

A petition to change the property from the farming zone to the newly created agricultural bio-enterprise zone was filed by corn and soybean producer Joe Russell and other property owners.

"The bottom line is, this sends a message to any agri-business thinking about locating in Indiana that this is a great place to do business, and we are open for business," Russell said.

Notices to surrounding property owners began arriving in the mail on Thursday and causing concern.

"I'm not real happy about it," said Shideler resident Kathy Hardman, an assessment assistant at Ball State University. "I particularly don't want a factory like that in my back yard. With any chemical process, there will be pollutants. I'm also concerned about dust, trucks and property values plummeting. My dad said these plants smell. The things I've heard seem kind of nasty."

(I recall writing an earlier entry on agri-enterprise zones, but can't locate it right now.)

Posted by Marcia Oddi on Tuesday, August 23, 2005
Posted to Environment

Law - California Supreme Court expands same-sex parental rights

A story today in the NY Times by Adam Liptak reports:

The California Supreme Court ruled yesterday that both members of a lesbian couple who plan for and raise a child born to either of them should be considered the child's mothers even after their relationship ends.

The court, stepping into largely uncharted legal territory concerning same-sex couples and parenting, issued decisions in three cases, ruling that women whose partners gave birth had parental rights or obligations in all three.

The cases involved a request for child support, a petition to establish parental rights and an attack on a lower court ruling issued before a child's birth that the child should have two women listed as parents on her birth certificate.

"We perceive no reason," the Supreme Court ruled, "why both parents of a child cannot be women."

Courts in about half the states have allowed members of same-sex couples to adopt their partners' children. Yesterday's decisions considered the separate question of whether the law could require former members of such couples to assume parental rights and obligations. * * *

The decisions broke new ground, advocates on both sides agreed.

"It is unprecedented around the country," said Joan Hollinger, who teaches adoption law at the University of California, Berkeley, "to have a state's highest court recognize that in the absence of an adoption, and even in the absence in some instances of a domestic partnership agreement, that two men or two women could be the full legal parents of a child born through assisted reproduction." * * *

The decisions may also have implications for same-sex marriage in California. The question of whether the state Constitution requires the recognition of such marriages is before a state appeals court.

The three decisions, all dated 8/22/05, are: Elisa B. v. Sup. Ct.; K.M. v. E.G.; and Kristine H. v. Lisa R.

Here is the LA Times coverage. Some quotes:

SAN FRANCISCO — The California Supreme Court on Monday became the first in the nation to grant full parenting rights and obligations to gays and lesbians who have children.

In three closely watched cases, the justices set rules in an area where changes in family structure and advances in technology have outpaced the evolution of legal principles. In each case, they delivered a ruling that guaranteed that children born to gay couples have two legally recognized parents.

Each of the cases involved a lesbian couple who had children and later split up.

In one case, the court ruled unanimously that a lesbian mother cannot avoid paying child support for her partner's biological children who were conceived when the pair lived together.

That ruling puts lesbian couples on a par with unmarried couples whose relationships end.

In a second case, the justices, on a 4-2 vote, held that a Marin County woman who provided eggs to a partner, who was then artificially inseminated, is legally the children's second mother.

That ruling came despite the fact that before the children were conceived, the woman who donated the eggs had signed an agreement with her partner waiving parental rights.

The third case, involving a Los Angeles-area couple, was decided largely on procedural grounds. It upheld the parental rights of a woman whose partner became pregnant through artificial insemination while the two lived together. * * *

The rulings came as the battle over the rights and obligations of gay families is heating up statewide.

A case challenging the constitutionality of California's law limiting marriage to "a man and a woman" is moving through the courts and is expected to reach the justices next year. And a bill that would allow same-sex marriage has been revived in the Legislature.

On the other side of the debate, opponents of gay marriage are pushing to place several constitutional amendments on the June 2006 ballot that would ban same-sex marriage and roll back domestic partner benefits. Those existing domestic partnership rights already cover many gay couples with children. For children born after Jan. 1 of this year, state law says that children born to registered domestic partners should be treated the same as children born to married couples.

But tens of thousands of gay couples — no one knows precisely how many — had children before the domestic partnership law went into effect or have not registered as domestic partners. For them, the rules have been confusing and often inconsistent.

Monday's rulings sought to bring order to the legal chaos. The rulings drew praise from advocates for gay rights and were sharply criticized by groups opposed to same-sex unions.

Posted by Marcia Oddi on Tuesday, August 23, 2005
Posted to General Law Related

Monday, August 22, 2005

Law - Illinois parents face similar requirements for more school "fees"

Related to the ILB entry this morning on school textbook "fees" is a two-part series in the Daily Herald (serving suburban Chicago).

Yesterday's story was headlined "School fees rise as taxpayer support dwindles." Some quotes:

Parents who challenge fees find they have few avenues of appeal. About 1,000 families at South suburban Carl Sandburg High School in Orland Park learned the hard way that fees are not optional when the district sent their unpaid bills to a collections agency.

Illinois courts haven’t offered much recourse, either. In 1970 the state Supreme Court upheld school districts’ rights to charge for textbooks. A 1973 Appellate Court decision held schools could charge for the use of textbooks and towels.

School code requires districts to waive fees for children who are eligible for the federal free lunch program.

Illinois also allows school boards to establish fees for instructional materials, field trips, extracurricular activities, equipment and supplies.

And they do.

Though school boards must secure voter approval to raise taxes, they can act unilaterally when imposing fees.

“These fees are a supplemental tax imposed by school systems. I do not get to vote on this tax,” said Doug Jaffray, whose children attend Indian Prairie School District 204, in DuPage County. * * *

When residents overwhelmingly rejected the proposed tax hike, the school board raised band fees (from $40 to $300), athletic fees (from $100 to $200 for varsity sports, from $50 to $100 for in-house teams) and registration fees (from $60 to $115 for first through fourth grades and $140 for fifth through eighth).

After its $86 million capital projects referendum failed this spring, St. Charles Unit District 303 instituted a technology fee for all students and raised the driver’s education fee to $200. The fee increases were expected to generate about $338,000 in new revenue.

Some criticize school fees as taxation by other means.

“When referendums fail, it’s a lot easier to stick it to the parents with activity fees than to find inefficiencies in the budget,” said Greg Blankenship of the Illinois Policy Institute, a free-market oriented think tank. “I’d argue it’s a form of regressive indirect taxation. It’s going to impact the people who most need the services.”

Participation barrier

Fees, a nuisance to most, become a barrier to participation for some.

After District 26 changed its fee structure, band enrollment dropped 50 percent and fewer students tried out for pay-to-play teams. Low turnout forced the middle school to cancel in-house basketball.

In neighboring District 3, parents balked when the school board increased fees to $200 and $300 per activity. A subsequent districtwide survey found participation in all but two sports would dip too low to a field a team.

Today's story is titled "Line between fees and tuition ‘as clear as mud’". Both stories were reported by Emily Krone. After quoting the Illinois Constutition (“The state shall provide for an efficient system of high quality public educational institutions and services. Education in public schools through the secondary level shall be free.”), Krone writes:
In school districts across the state, parents pay band fees, book fees, lab fees, tech fees, supply fees, athletic fees and — just for showing up — registration fees.

“It’s not really as free and appropriate education as we’re supposed to provide,” acknowledged Ron Kazmar of Students First Illinois, an advocacy group for increased state funding of public schools.

Illinois courts have ruled school fees do not violate the free schools provision of the 1970 state constitution.

Courts have held that schools may charge participation fees so long as they do not charge “tuition.”

But school boards have found the line between fees and tuition is murky — and often arbitrary.

Registration fees, for example, do not equal tuition in Illinois. Neither do fees for such mandatory materials as textbooks and science labs. Nor do fees for extracurricular activities — even those that bear a striking resemblance to curricular activities.

Elusive definitions

The confusion over band fees in Cary Elementary District 26 illustrates just how murky the distinction between fees and tuition can be.

A lawyer from the state board of education advised District 26 that its band fees amounted to tuition because they covered the salary and benefits of the band teachers — prohibited under Illinois school code.

A lawyer for the district, however, told the board the fees were legal if band was an extracurricular activity.

The board, then, scrambled to determine — a month after the school year ended —whether band was or was not part of the previous year’s curriculum.

Ultimately it labeled band extracurricular because it met mostly before school and did not count toward a student’s grade point average.

Thus, District 26 charged parents for a school-sponsored activity taught by district employees hired exclusively to teach band. But according to Illinois School Code, the district did not charge tuition.

“It’s about as clear as mud,” Andrea Gorla, the district’s chief financial officer, said at the time.

Other school districts are walking the same fine line. In Fox River Grove District 3, band is considered curricular and is free, but jazz band, which meets after school, costs $50.

Gorla said she has fielded calls from several administrators in other districts concerned their fees might violate the free schools provision.

The fee structure of Fox Valley districts would violate school code in most states.

Illinois is one of only nine states without a free textbooks provision. Forty-one states and Washington, D.C., prohibit districts from charging fees for the use of textbooks.

Indiana doesn't have a free textbooks provision. But Indiana's Constitution of 1851 guarantees "a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all." The Court of Appeals ruled in Nagy last year (now vacated pending the Supreme Court's decision, as discussed in the earlier entry today) that a $20 activity fee imposed by the Evansville-Vanderburgh School Corp. violated the Indiana Constitution.

Posted by Marcia Oddi on Monday, August 22, 2005
Posted to General Law Related

Ind. Courts - Rush Circuit Judge Harcourt will not seek another term

"Rush Circuit Judge Harcourt will not seek another term" was the headline to this brief item in the Rushville Republican:

Judge Barbara Arnold Harcourt has announced that she does not intend to seek re-election at the end of her current term of office. As of Dec. 31, 2006, Harcourt will have served 18 years on the bench. According to Harcourt, she feels that a change of administration would be in the best interest of the legal system as a whole. She said she will pursue other areas of public service.

Posted by Marcia Oddi on Monday, August 22, 2005
Posted to Indiana Courts

Ind. Law - Some stories today

The South Bend Tribune has a long story today by reporter Joseph Dits headlined "Translating justice: Judges cope with limited pool of court interpreters."

The Indianapolis Star has a feature today in the Business Section on a lawyer who has opened a number of law offices, including one recently in downtown Indianapolis, "dedicated to helping men and fathers during divorce."

Posted by Marcia Oddi on Monday, August 22, 2005
Posted to Indiana Law

Environment - Two stories today on mega-farms

"Lawsuit challenges dairy farm plan" is the headline to this story today in the Evansville Courier& Press. Some quotes:

KENTLAND, Ind. - The town of Kentland and 13 individuals are going to court to fight a 4,200-head mega-dairy that has received approval from the Indiana Department of Environmental Management and from local planners.

Gerrit Dekker of Oxford is planning the dairy for land near Kentland, about 100 miles northwest of Indianapolis along the Illinois border.

Kentland and the 13 individuals sued the Benton County Board of Zoning Appeals, claiming it violated Indiana's Open Door Law when it held an unadvertised executive session during a meeting in 2004. The closed-door session occurred during the board's regular meeting just before it voted to approve an exemption allowing the dairy farm.

The lawsuit is scheduled to be heard today in Circuit Court in neighboring White County.

"Hog farms booming in state: Company has plan to add barns, but critics raise stink" is the headline to this story today in the Louisville Courier Journal. Some quotes:
The corporate hog-farm revolution that pushed Iowa and North Carolina to tops in the nation is poised to enter Kentucky in a big way.

And as has happened elsewhere, hog farming in Kentucky has triggered a tug of war between farmers, residents and government officials over economic renewal, smell and waste disposal.

A Tennessee company, Tosh Farms, plans to open about 50 more barns in Western Kentucky, boosting the state hog population by nearly 38 percent over the next three years.

That would move Kentucky from 20th to 18th in state hog births.

An accompanying table shows Indiana as 8th in hog births. Later in the lengthy story:
With what were seen as friendly regulations and an abundance of feed and nearby slaughterhouses, North Carolina became a leading pork producer in the mid-1990s.

But lagoon failures and manure spills prompted the state to freeze permits for 10 years in 1997.

Most Kentucky regulations focus on setback distances for barns: at least 3,000 feet from a city line; 1,500 feet from houses, schools and parks; 300 feet from wells; and 150 feet from roads.

North Carolina has the same limits, but also requires barns or manure lagoons to be 500 feet from a property line. Kentucky has no property-line rule.

A 2004 study by University of Kentucky agricultural economist Ron Fleming and by Ernest Bazen, a farm economist at the University of Tennessee, concluded that setbacks from homes need to be tripled, to 4,600 feet.

The Kentucky Resources Council, a nonprofit environmental advocacy group, has called for barn or manure-application setbacks to be at least 2,600 feet from a property line.

Most Western Kentucky counties rely on state regulations, but Graves County is an exception. It has set a 1,500-foot barrier for barns or lagoons from adjoining property lines, not just houses and other buildings.

Graves County Judge-Executive Tony Smith said no permits have been sought under its rules. "We did not want barns to be next to anyone's house and did not want someone buying a small tract of land to put barns on," Smith said.

Fulton County's experience with hog farming underscores its political and legal pitfalls. When Fulton residents began to object to plans for large hog farms in 1997, Judge-Executive Harold Garrison took a trip to North Carolina.

Garrison's reports of the mess and odors led to an ordinance to keep so-called factory hog barns out of the state's westernmost county. But then Garrison toured Thornsbrough's farm and said it didn't smell like he had feared.

So the Fiscal Court revised the ordinance, setting "permit conditions" for barns and dropping a required look at adverse effects on the "peaceful use and enjoyment" of land by abutters.

A day later, the county took in the first of five applications for 83,000 hogs a year. When opponents sued, county officials repealed the ordinance. Now only state regulations apply in Fulton.

"People were upset when chicken barns were built here, and now you don't hear people complaining about them anymore," Garrison said.

But Barry Sharp, the Fulton businessman who sued the county, said six proposed hog barns were within 2,600 feet of a home he is building and within 1,300 feet of his property line. "There have been environmental issues with these farms everywhere," Sharp said. "Why won't there be issues here?"

Posted by Marcia Oddi on Monday, August 22, 2005
Posted to Environment

Law - More on: NBC's "The Law Firm" cancelled

Updating this August 11, 2005 ILB entry about the cancellation of NBC's show, The Law Firm, after only two episodes, and its new life on BRAVO, a press release from BRAVO today begins:

BRAVO PRESENTS THE COMPLETE SEASON OF DAVID E. KELLEY SERIES 'THE LAW FIRM,' FROM THE BEGINNING STARTING TUESDAY, AUGUST 30

Hosted By Famed Trial Attorney Roy Black, Insightful Series Features Twelve Legal Eagles As They Compete For A $250,000 Prize By Trying Real Court Cases With Real Outcomes

NEW YORK - August 22, 2005 - Bravo will air the eight-episode competition reality series "The Law Firm," beginning with back-to-back airings of the first two one-hour episodes Tuesday, August 30 at 8:00 p.m. ET/PT. The subsequent, never-before-aired episodes will roll out Tuesdays at 8:00 p.m. for six consecutive weeks starting September 6.

Posted by Marcia Oddi on Monday, August 22, 2005
Posted to General Law Related

Ind. Gov't. - Indiana textbook fees, and a possibly relevant pending appeal

An AP story in the Louisville Courier Journal is headlined "Indiana among 10 states with textbook fees." It reports:

BLOOMINGTON, Ind. -- Indiana's constitution promises a "free and equal" public education, but don't suggest that to the parents who must pay $100 or more in textbook fees each year for each child enrolled in school.

Indiana is one of only 10 states that does not fund textbooks for students in kindergarten through grade 12.

Indiana Superintendent of Public Instruction Suellen Reed long has lobbied to change that, but it's not likely to happen any time soon in a state trying to dig out from under a budget deficit. An Indiana Department of Education study in 2001-02 found that funding all textbooks would cost the state as much as $80 million a year.

"That's a few years old, too, so with inflation and the rising textbook costs, that number is probably a bit higher now," department spokesman Jason Bearce said.

Families whose finances qualify them for the federal school lunch program, permitting either free or reduced-price meals, also receive state funding for some or all of their textbook fees.

But that takes care of only about 20 percent of the state's families with students. * * *

A study released Aug. 16 by the federal Government Accountability Office indicated that textbook costs have risen at more than twice the rate of inflation during the past two decades. Some of the increase is because texts are supplemented with multimedia materials.

The LA Times yesterday reported on the GAO Report and high textbook costs. Here is a link to the GAO Report itself, titled "College Textbooks: Enhanced Offerings Appear to Drive Recent Price Increases."

After reading the AP story this morning, I checked on the status of Nagy v. Evansville-Vanderburgh School Corp., the school fees case argued before our Supreme Court on Nov. 23rd, 2004. I checked the docket and saw nothing new since the oral argument. Here is a link to the most recent (12/11/04) ILB entry on Nagy. Also see these entries from 11/24/04, 8/18/04, and 5/28/04 (this is the link to the now vacated CA opinion, it is the 5th - and last - opinion summarized and also includes quotes from news reports at the time).

Posted by Marcia Oddi on Monday, August 22, 2005
Posted to Ind. Sup.Ct. Decisions | Indiana Government

About the Indiana Law Blog - An opportunity for ILB readers

Check out the top of the right-hand column. The ILB has added a new feature, an opportunity for readers to make a contribution to keep the ILB flourishing.

As regular readers know, I stopped updating the ILB May 1, 2005, because it was consuming too much of my time. However, I missed it.

At the end of July, I decided to try again, with two changes. One: I discontinued my practice of summarizing every new Indiana Supreme and Appeals Court opinion issued. Two: After much hesitation and vacillation, I elected to give interested readers (individuals, law firms, businesses, and others) the opportunity to become monthly underwriters of the site.

This "support system" was set up through Amazon.com. You use your credit card, and although you receive an automatically-generated thank-you e-mail from me, I won't know who you are unless you elect to let me know -- your anonymity is guaranteed by Amazon.

Your input or suggestions are welcome.

Posted by Marcia Oddi on Monday, August 22, 2005
Posted to About the Indiana Law Blog

Sunday, August 21, 2005

Ind. Law - More on "Local zoning issues may become a federal case"

Updating the August 13th ILB entry "Local zoning issues may become a federal case" is this column today by Nancy Sulok of the South Bend Tribune.

[Update 8/22/05] Here is another Sulok column today.

Posted by Marcia Oddi on Sunday, August 21, 2005
Posted to Indiana Law

Law - Analysis of the Vioxx trial

In the Business Section of the Sunday NY Times is an interesting analysis of the Vioxx trial headlined "For Merck, Vioxx Paper Trail Won't Go Away." The lead:

HOUSTON, Aug. 20 - Bad facts. Plaintiffs' lawyers love that term. Merck may grow to hate it.
More from later in the piece:
As Merck examines its defeat in Texas, it may be tempted to blame its problems on the ineptitude of its lawyers, who committed basic mistakes like failing to prepare witnesses and badgering Mrs. Ernst, a sympathetic widow, for 90 minutes on cross-examination.

Merck may tell itself that the part of Texas where the case was heard is favorable to plaintiffs and that the trial might have turned out differently elsewhere. It might even say that W. Mark Lanier, the Houston lawyer who represented Mrs. Ernst, is so skilled that he won a case that most other plaintiffs' lawyers would not even imagine bringing.

All those responses have an element of truth. Unfortunately for Merck, they hardly begin to explain the enormous verdict, which the jury of seven men and five women in Angleton, Tex., about 40 miles south of Houston, returned on a 10-2 vote.

The real explanation may lie in the "bad facts" that Mr. Lanier presented to the jury.

Mr. Lanier offered jurors a trove of company documents and e-mail messages that revealed how Merck researched Vioxx's heart risks and presented what it knew to doctors and consumers. The documents showed that scientists at Merck were worried about Vioxx's potential cardiovascular risks as early as 1997, two years before Merck began selling the drug.

"The possibility of increased C.V. events is of great concern," Dr. Alise Reicin, a Merck scientist, wrote in a 1997 e-mail message; "C.V. events" is scientific shorthand for cardiovascular problems like strokes or heart attacks. "I just can't wait to be the one to present those results to senior management," Dr. Reicin's message continued. * * *

Mr. Lanier also introduced a marketing videotape that showed Merck sales representatives being trained to view doctors' concerns about Vioxx's heart risks as "obstacles" to be avoided or dismissed. Another marketing document taught representatives to play "Dodgeball" when doctors voiced concerns. * * *

In the courtroom immediately after the verdict, a reporter asked Mr. Lanier how he had won the case. "The documents," he replied. "The documents tell the truth."

Now the documents may haunt Merck in every Vioxx lawsuit that reaches a jury. And Merck may face even more bad facts in future trials, as the other lawyers suing the company work their way through the trove of 7 million papers that Merck has already produced, said Richard T. Evans, a drug industry analyst at Sanford C. Bernstein & Company.

Meanwhile, federal prosecutors are conducting their own criminal investigation of Merck, and with their broad subpoena power they may find documents that plaintiffs' lawyers have not yet uncovered.

The Washington Post has a story today that asks: "Are Drugmakers Down for the Count?" Some quotes:
Although the Texas award is almost certain to be reduced, the industry's legal woes are just beginning. There are already more than 7,500 suits pending against Merck, and thousands more may be filed against other drugmakers with painkillers in the same class as Vioxx that also have been pulled from the market. * * *

Other broad challenges facing the industry include the impending loss of patent protection for many of today's top-selling drugs, along with a dearth of replacements in the pipeline. The future seems to lie with biotech drugs and genetic fixes that lie outside the traditional competencies of large pharmaceutical companies.

The business and regulatory environment has also turned hostile in response to escalating drug costs. State governments are threatening to import drugs from countries with lower prices, and Democrats in Congress want the federal government to negotiate prices directly with the manufacturers. Meanwhile, newly powerful pharmacy benefit managers have driven down wholesale prices by using financial incentives to get consumers to switch to cheaper generic alternatives. The efforts have been so successful that three of the largest such firms just reported record, or near-record, earnings.

On another front, the industry, faced with public backlash, has been forced to adopt voluntary curbs on its direct-to-consumer advertising.

Critics have long complained about the cozy relationships between drug companies and doctors. But the Journal of the American Medical Association opened another front in the war against unethical practices by exposing a widespread practice of doctors receiving fees from investors and industry analysts to give them early, inside information about drug trials still in progress.

Posted by Marcia Oddi on Sunday, August 21, 2005
Posted to General Law Related

Law - "Why ethics involve more than free golf"

As readers are most likely aware, the Governor of our sister state of Ohio "pleaded no contest [last week] to four misdemeanors for failing to report gifts." The Cincinnati Enquirer has an editorial column this morning titled "Why ethics involve more than free golf." Here are some quotes:

Bob Taft apologized for the golf, the free meals and the hockey tickets. But what he did wrong had a lot more to do with what he gave away for these freebies. He gave away face time without telling the rest of us.

On Thursday, Taft became the first sitting governor in the history of Ohio to be convicted of crimes, after he pleaded no contest to four misdemeanors for failing to report gifts.

In the world Taft inhabits, the benefits he received from these gifts are so laughable they will undoubtedly end up in late-night comedy monologues. But the benefits to those he shared his meals and golf outings with cannot be measured. Those benefits were in the priceless form of influence - real or perceived - and that is the coin in which politicians and those who seek to be close to them trade.

Perceived influence is almost as good as the real thing. If other people think you have a strong connection with a powerful figure, they treat you with a deference and extend a certain benefit of the doubt.

Taft's offenses were violations of Ohio's Financial Disclosure Law. There are many people who think the law is just being picky - prosecuting the governor or any other public official over a few rounds of golf. Under the law those golf rounds are gifts, and because each round cost more than $75, the governor was required to report them as gifts on his annual financial disclosure report. Accounting for every $75 gift - and that can cover everything from golf to the price of a good dinner - is picky. But the Ohio Ethics Commission spells out on its Web site exactly why the law is so picky:

The financial disclosure requirement reminds public officials and employees of their financial interests to help them avoid conflicts of interest. The disclosure requirement also promotes confidence in the integrity in state and local government by assisting the public in recognizing areas of potential conflict of interest.
It is the second sentence that applies to Taft's situation. There is no evidence that he received any financial benefit in return for the golf games and other gifts he failed to disclose. In fact, a report by the Ethics Commission that was sent to the prosecutors said the people Taft played with generally indicated the events were "social in nature." Taft described them as weekend events with friends. * * *

The law requires the disclosure of gifts so that the public can know who their public officials spend time with, who gets a chance to get private time with our governors, mayors, legislators and other public officials on the golf course, on a fishing trip, at a resort.

We have a right to know who gives expensive - and for the average person a $75 present is expensive - gifts to those entrusted to do the public's business. We can then decide for ourselves whether those gifts influence the officials.

Taft may have felt his golf games were innocent weekend social events, but it isn't his place - or the place of any public official - to make such judgments.

Posted by Marcia Oddi on Sunday, August 21, 2005
Posted to General Law Related

Law - "Debtors in Rush to Bankruptcy as Change Nears"

"Debtors in Rush to Bankruptcy as Change Nears" is the headline to this story today in the NY Times. Some quotes:

Rushing to beat an October deadline when the biggest overhaul of the bankruptcy law in a quarter century goes into effect, rising numbers of Americans have filed for protection in the four months since the law was changed, seeking to have their debts erased.

Since President Bush signed the new law in April, bankruptcy filings have jumped, particularly in the heartland. Filings in the four months through July are up 17 percent this year over last in Cleveland, 14 percent in Milwaukee and 22 percent in northern Iowa, according to court filings, matching similar patterns in the Midwest and parts of the South and rural West.

Nationwide, bankruptcy filings for April, May and June were up by 12 percent over the same period last year, according to LexisNexis, the data collection service, which tracks filings ahead of the quarterly reporting done by the federal courts. The rise is coming after bankruptcy had leveled off and even started a slight decline last year.

Under the revised law, debtors who earn more than the median income in their state and who can repay at least $6,000 of their debt over five years will no longer be able to have their debts wiped out for a fresh start under the more generous provisions of Chapter 7 of the bankruptcy code. Instead, they will have to seek protection under Chapter 13, which requires a repayment schedule. In addition, under the new provisions, they will have to enroll in a court-supervised financial counseling program. * * *

Courts in Indiana, Nebraska, Ohio, Tennessee, Texas and Wisconsin, among other places, report that people are hurrying into bankruptcy in numbers rarely seen.

Posted by Marcia Oddi on Sunday, August 21, 2005
Posted to General Law Related

Saturday, August 20, 2005

Ind. Courts - More on "Montgomery County judges issue mandate for staff raises"

Following up on the ILB entry Thursday on the action by Montgomery County judges mandating appropriations for staff raises, the Crawfordville Journal Review has an interesting story today by Wade Coggeshall. Some quotes:

Montgomery County Commissioners have fired back at county judges who on Tuesday mandated $10,000 pay raises for court reporters and other employees.
In a letter addressed to judges David Ault, Thomas K. Milligan and Peggy Q. Lohorn, commissioners wrote, “Please be advised that there are no unappropriated monies in the 2005 budget from which to pay the mandated salary increases. The council requests that you rescind your order given our financial circumstances.”

The council also invited the judges to the Aug. 30 public hearing regarding the 2006 budget, which starts at 8 a.m. in the city building. * * *

“It is unfair judicial employees receive a pay increase due to a mandate while dedicated employees in other offices go without,” wrote David Bottorff, executive director of the Association of Indiana Counties, in an e-mail. “I believe every elected office holder in Montgomery County would like for their employees to receive a pay increase but there is no money. In the case of Montgomery County, other county employees may lose their jobs to satisfy the mandate. State law and economic conditions in a county control how much a county can increase (its) budget each year. Councils are not allowed to increase taxes at will, so cuts to other services will be necessary to comply with the mandate.”

Bottorff wrote such mandates seem to be becoming a statewide trend.

“We are receiving reports from councilmen around the state that threats of mandates are becoming more frequent, or at least they are being reported to us more often. Many counties do what their judges request simply because they do not want to go through the process of a mandate. When a county pursues a mandate, a judge from another county decides if the mandate must be followed. If a county does challenge the judicial mandate, they may end up paying the legal bills for the judge no matter what the court decides.”

The reference at the end of the last paragraph is to the requirement of Indiana Trial Rule 60.5, which establishes procedures, including the appointment of a special judge, to resolve intra-county disputes over the funding for court operations.

Here is an example from a Nov. 6, 2004 ILB entry titled "State Supreme Court names special judge to hear arguments over Posey courthouse." And here is a copy of the Supreme Court's September 2004 Order appointing a special judge in the matter in the Posey Circuit Court.

Announcement. This may be a good time for my announcement that I have accepted an invitation to contribute a monthly column to the Indiana State Bar Association's monthly publication, Res Gestae. The column will be called "To elaborate ...". I intend to use the longer format to investigate and expand upon topics first mentioned in The Indiana Law Blog.

Serendipitously, the topic of my first column, completed and turned in on August 10th, is -- the judicial mandate. The September 2005 issue of Res Gestae will arrive in the mail in a few weeks to ISBA members. Thereafter, I have Res Gestae's authorization to make a copy of the column available online. (The hardest thing for me to get used to will be the l-o-n-g turnaround time; I'm used to instantaneous posting.)

Posted by Marcia Oddi on Saturday, August 20, 2005
Posted to Indiana Courts

Law - A new twist on eminent domain?

"Businessman Battles the City for Power Plant" is the headline to this story today in the NY Times that begins:

At a time when the United States Supreme Court has granted local governments free rein to condemn private property on behalf of commercial projects, an energy entrepreneur says he is going City Hall one better: he plans to condemn some prime Brooklyn waterfront land himself.

Adam H. Victor, the president of TransGas Energy Systems, has sought for four years to build a $1.3 billion power plant on the East River in Williamsburg despite opposition from the community and Mayor Michael R. Bloomberg's administration. Mr. Victor ran up against a determined deputy mayor, Daniel L. Doctoroff, who preferred that the city condemn the land south of the Bushwick Inlet for a possible Olympic diving center and a waterfront park in the crumbling industrial neighborhood.

Then Mr. Victor found an obscure 1909 state law that lets utilities and railroads condemn and acquire land for their needs, including power projects.

The race to the courthouse was on. On June 26, Mr. Victor published a notice of his intention to condemn the eight-acre parcel where he hopes to build a 1,100-megawatt natural gas plant.

Within weeks, the city filed a pre-emptive suit on July 19 in Brooklyn Supreme Court to condemn the same piece of land as part of its effort to establish a 35-acre park in Williamsburg.

Both sides are predicting victory.

Posted by Marcia Oddi on Saturday, August 20, 2005
Posted to General Law Related

Ind. Courts - "Courts clerk still appearing as attorney"

"Courts clerk still appearing as attorney: Lake County's Philpot still working as private attorney." That is the headline to this story today by RuthAnn Robinson in the Munster (NW Indiana) Times. Some quotes:

CROWN POINT | Clerk of Courts Thomas Philpot was in criminal court the other day -- not doing what he's been elected to do, but serving as a defense attorney representing a private client.

Philpot, the keeper of court records and administrator overseeing more than 100 workers, is representing clients while he's on the public's dime.

And there's no law against it. The only prohibition on the books is for a person holding more than one public office that would result in a conflict of interest.

That's not the case here, said Don Lunberg, of the Indiana Supreme Court Disciplinary Commission.

"I have no opinion (on the matter)," Lunberg said. "The only potential issue would arise by virtue any restrictions due to his office as clerk of courts. I'm not saying there isn't a question someone would be interested in, but it's not my office. I'm not the guy. I've had a good deal of difficulty figuring out who would be responsible for regulating in that environment."

Posted by Marcia Oddi on Saturday, August 20, 2005
Posted to Indiana Courts

Law - Kentucky Governor's continuing problems re merit hiring laws

This morning NPR had a feature on the Kentucky Governor's continuing problems re merit hiring laws. Access the audio here. The blurb:

Weekend Edition - Saturday, August 20, 2005 · Nine current or former members of Kentucky Gov. Ernie Fletcher's Cabinet have been indicted over the administration's hiring practices. The governor himself has been subpoenaed to testify at the end of the month. Is the first-term Republican in trouble, or is it just politics?
A quote from one of the piece's interviewees, likely a political opponent: "When you ride on a white horse, the mud shows up a lot more clearly."

And today the Louisville Courier Journal has this story that begins:

FRANKFORT, Ky. -- Investigators from the attorney general's office began copying the computer network server for Gov. Ernie Fletcher's office yesterday after receiving a search warrant.

The 5 p.m. search was related to a special grand jury's investigation into allegations that the Fletcher administration violated state hiring laws by filling jobs on the basis of politics, not qualifications.

In a related development, Attorney General Greg Stumbo warned Fletcher in a letter delivered last week that the truth within allegations of illegal hiring can only be determined at trial and "now is not the time for a pardon."

Fletcher has said he has not ruled out exercising his power to issue pardons for nine current and former administration officials who have been indicted.

Later in the story:
Fletcher spokesman Mike Goins dismissed the contents of the letter as similar to previous remarks by Stumbo and other Democrats. * * *

"This is the third consecutive Friday that we have seen, I guess, a late-afternoon action taken by the attorney general's office in this investigation, which begs to us: Is this an attempt by the attorney general's office to dominate the weekend news headlines?"

The Evansville Courier& Press today has a somewhat related AP piece that begins:
FRANKFORT, Ky. - The Personnel Board will investigate an allegation by one of its own members that a social worker position in Powell County was filled with a politically connected individual over a better candidate.

Board member Ann Aukerman said she agonized over the decision to take the matter to the board, but did so only after the Cabinet for Health and Family Services and the attorney general's office declined to pursue it.

Aukerman said Kathy Hughes was hired in April as a family support specialist in Powell County after a better qualified candidate was rejected. Aukerman, who is a personnel liaison for the cabinet for 16 central Kentucky counties, said she saw extraordinary political pressure brought to bear on filling the job and she received a call from then-state Republican Party Chairman John McCarthy.

"It is the only time I've received a call like that in my career," Aukerman said after the board vote Friday, from which she abstained.

Aukerman said in a handwritten letter to the board that another person was originally chosen for the job but the hiring process was short-circuited after the Powell County supervisor called her to say she had received several calls from "politically connected people stating they were friends of Governor Fletcher or from the Republican Party."

Posted by Marcia Oddi on Saturday, August 20, 2005
Posted to General Law Related

Law - Ruling may release tobacco funds

"Ruling may release tobacco funds" is the headline to this Louisville Courier Journal story that begins:

Kentucky stands to get about $125 million under a North Carolina Supreme Court ruling that tobacco companies wrongly withheld tobacco-settlement funds last year.

Most of the money would be used to repay $114 million Kentucky allocated this year to pay farmers their 2004 settlement checks after cigarette makers halted payments.

The companies argued that Congress' passage last year of a $10.1 billion tobacco buyout took them off the hook for the 2004 settlement payments, though buyout disbursements didn't start until 2005. The court rejected that argument yesterday.

The ruling means cigarette makers must pay $424 million to tobacco growers and holders of growing rights in 14 states, including Kentucky and Indiana.

Bill Phelps, spokesman for Philip Morris USA, and David Howard, spokesman for R.J. Reynolds Tobacco Co., said their companies haven't decided whether to appeal to the U.S. Supreme Court.

The decision, State v. Philip Morris USA, Inc., (8/19/05) is available here via Findlaw.com.

Posted by Marcia Oddi on Saturday, August 20, 2005
Posted to General Law Related

Ind. Fed. Court - More on "U.S. District Judge Richard Young to open portions of sealed plea agreements"

Following up on an ILB entry from last Saturday, Aug. 13 is this editorial today in the Indianapolis Star:

Federal Judge Richard L. Young has correctly put the burden on federal prosecutors to show why any portion of a plea agreement with a criminal defendant should be sealed.

"We want our courts to be as open as they can be," Young told the Evansville Courier & Press after its lawyers moved to intervene in several cases in which defendants had reached sealed plea agreements with the U.S. attorney's office.

When criminal proceedings begin with closed grand jury proceedings and end in sealed plea agreements, most of the judicial process is hidden from public view.

As Young noted, occasionally there are compelling reasons for sealing parts of a plea agreement. Names of child abuse victims, confidential informants or potential witnesses could be divulged. Ongoing investigations also could be compromised.

Under the settlement reached among the Evansville newspaper, the U.S. attorney and Young, the public will be notified about the existence of any sealed plea agreements and given the opportunity to require prosecutors to prove that there is a compelling reason to keep it sealed. According to Young, this understanding affects only his courtroom in Evansville and not the remainder of Indiana's Southern District federal court, which includes Indianapolis.

The U.S. attorney should adopt a district-wide policy of providing public notification of plans to seal any part of a plea agreement. And judges throughout the district should insist that prosecutors prove why sealed agreements are necessary.

Posted by Marcia Oddi on Saturday, August 20, 2005
Posted to Ind Fed D.Ct. Decisions

Not law but pretty cool - "Storm kills power, but not fair's butter cow"

"Storm kills power, but not fair's butter cow" is the headline to this Chicago Tribune story by Christi Parsons, about the Illinois State Fair. Some quotes:

SPRINGFIELD -- When a rainstorm knocked out the power at the Illinois State Fair this week, the first concern was the butter cow.

She's made of 600 pounds of butter, and she wouldn't last long in the August heat. She has been a fixture at the fair since 1922.

So after putting all of the other display products on ice, Marla Behrends, a manager at the Midwest Dairy Association, spread a blanket on the ground and slept in the fairgrounds' Dairy Building to make sure no one opened the butter cow's refrigerated display case and let out any of the cold air.

Meanwhile, fair officials held emergency meetings to minimize the damage not just to the butter cow--the unofficial fair mascot--but also to the other significant features of the gargantuan annual event.

The cozy dogs, the pork-on-a-stick, the lemon shake-ups--all were in peril before the 12-hour power outage ended right about lunchtime Friday. The kids sleeping in the barns with their animals were hot without their fans; even hotter were those frantically milking their cows by hand because the machines were out. The gates were locked until midday, so the morning tractor pull was canceled.

As it turned out, Ameren Corp. got the electricity back on before the butter cow went soft. But there were some tense moments before the lights flickered back on and the hot oil vats returned to full-boil. * * *

Workers were sweating from the heat, but Behrends--who kept an eye on the butter cow's temperature gauge--says the thermometer needle stayed at 40 degrees throughout the night.

"The butter cow is a tradition," she said. "A meltdown would have been pretty bad."

Posted by Marcia Oddi on Saturday, August 20, 2005
Posted to General News

Environment - Several stories today

NWI Medical Waste. "Residents say no to med waste in Gary, East Chicago" is the headline to this story today in the Gary Post-Tribune. Some quotes:

CROWN POINT— Repeating the same objections they have voiced to state and city officials for four years, local activists, elected officials, clergy and residents told Lake County officials that Lake County does not need medical waste processing plants.

At one of the best-attended meetings of the Lake County Solid Waste Management Board in recent memory, residents voiced their concerns Thursday about a medical trash sterilizing operation in Gary and plans to open another in East Chicago.

Speakers at the meeting lodged now familiar complaints about potential pollution, health hazards and claims of environmental racism — pleas that did not keep state officials from licensing a facility in Gary earlier this year.

Testimony and remarks from the plant operators at a meeting next month will be used by the solid waste board to determine the local need for a medical waste facility. * * *

Representatives for Midwest Medical Waste did not attend Thursday’s hearing and won’t go to the second, said owner Russ Karlins. “We’re not going to participate in that,” he said. “The bottom line is the district does not have the authority to make that determination ... this has nothing to do with need (for a processing plant). This is Lake County politics.”

In January, Karlins was granted a state license that made his plant near Interstate 65 in Gary the first commercially operated medical waste processing plant in the state. The plant, and the one proposed for East Chicago, uses steam-powered autoclaves to sterilize hospital trash ranging from bloody bandages to contaminated office paper. Once it’s treated at the plant, the waste can be dumped in an ordinary landfill.

Despite a June ruling by a Lake County judge that said local solid waste boards — and not the state — should have final say on the location of facilities, Karlins has never had to shut down his waste transfer or processing operations. Even if county waste officials deny his plant, the state Department of Environmental Management already has given him a license.

County officials will head to court next Friday to try and block a stay that allows Karlins to run the waste sterilization part of his operation until the solid waste board reaches a decision. Midwest Medical Waste has used the site as a transfer station since 2000.

Karlins said he will win an appeal of Judge Robert Pete’s ruling — and Karlins said he will sue the county, the city and individual members of the solid waste board. “They’ve cost my business $300,000,” he said. “It’s going to cost them a lot of taxpayers’ money — more than it cost them to fight me.”

Despite an outcry from East Chicago residents, a technicality allowed Abrade Technologies to get a special use permit to operate a similar plant, which would use steam-powered autoclaves to sterilize medical trash. The company is awaiting IDEM approval to open a 12,000-square-foot facility on Canal Street.

Power Lines. "State agency nixes power line through Daniel Boone Forest" is the headline to this story today in the Evansville Courier& Press. Some quotes:
FRANKFORT, Ky. - A power company will not be allowed to run a 4.8-mile power line through the Daniel Boone National Forest near Morehead after the Kentucky Public Service Commission rejected the request.

The commission, in an order issued Thursday, said East Kentucky Power Company should have considered routes along existing rights of way as an alternative to crossing through the forest.

Mega-Dairies. "How to Poison a River" was the title of a strong editorial yesterday in the NY Times
New York is increasingly a state of mega-dairies, and when things go wrong with such operations, they go wrong in a mega-way. The Marks Farm near Lowville, N.Y., has a herd of some 3,000 dairy cows. Their milk is trucked away regularly, but their liquefied manure is stored in a reservoir with earthen walls. How much manure? Before Aug. 11, the reservoir at the Marks Farm contained some three million gallons. Sometime in the next day, one of the walls blew out and released most of that waste into the Black River, a popular fishing stream and a water source for towns downstream. In case you have trouble visualizing it, three million gallons of liquid manure is roughly equivalent to the water in six Olympic-size swimming pools.

The result has been a major fish kill and the loss - at least temporarily - of all recreation on the river. The mess has been gradually diluted and will finally make its way into Lake Ontario, where it will do the fish there no good.

With any luck, what this spill will leave behind is a resolve to place new limits on concentrated animal feeding operations - as these mega-farms are known - in New York. As always, advocates of industrial farming argue that the increase in the number of large dairies and the inevitable loss of small ones are just a result of market forces and economic efficiency. But this has always been nonsense.

Mega-dairies, like huge hog confinement operations, are all too often forced upon local communities against their will. Some New York towns have tried to restrict the expansion of industrial farms nearby. But whenever that happens, the State Department of Agriculture and Markets has sued, or threatened to sue, under the state's Right to Farm Law.

That law made sense when farms were smaller and incapable of causing serious air pollution or a manure spill of massive proportions. Farmers still need to be protected against frivolous lawsuits, but the state needs to get out of the business of forcing industrial farms on communities that don't want them. And when farms operate at the scale of Marks Farm, they need to meet far stricter environmental standards than currently prevail. This disaster should never have had a chance to happen.

Water contamination. Another NY Times story has this headline: "Tainted Water at State Park Claims Victims in 20 Counties." Some quotes:
State health officials said yesterday that the number of people who contracted a severe intestinal illness from a play area with sprinklers at Seneca Lake State Park in Geneva, N.Y., has soared to more than 1,700.

The outbreak of the disease, a parasitic waterborne infection called cryptosporidiosis, began about two months ago among visitors to the state park but went unnoticed until earlier this week, health officials said.

Almost all those who were infected had spent time at a popular water attraction, the Sprayground, and were exposed to tainted water.

As of yesterday, the illness had quickly spread to at least 20 counties and sickened 1,738 people, far surpassing the roughly 500 cases that are seen annually and becoming one of the largest outbreaks of cryptosporidiosis in the state's history.

Chicago Medical Waste. The Chicago Tribune reported last Monday, Aug. 15:
Gov. Rod Blagojevich is taking credit for shutting down the last hospital incinerators operating in the Chicago area, but deals with the state will let two hospitals burn trash and emit toxic waste for another five years.

The fine print of agreements brokered by the Blagojevich administration will allow Loyola University Medical Center in Maywood and Hinsdale Hospital to keep their incinerators running until 2010, according to documents obtained by the Tribune.

Officials at both hospitals have complained that they invested millions of dollars in recent years to upgrade their incinerators with pollution controls. They say they need time to wind down use of their trash burners to avoid financial hardships. * * *

Opponents want the incinerators shut down much sooner, noting that most hospitals stopped burning their waste in the mid-1990s, after the U.S. Environmental Protection Agency ordered incinerators to reduce toxic air pollution.

Before nearly all of the incinerators burning municipal garbage and hospital waste nationwide were dismantled, trash burners were among the top sources of cancer-causing dioxins contaminating fish in the Great Lakes. They also release two toxic metals: mercury and cadmium.

Most hospitals took steps to reduce their garbage and hired contractors to truck syringes, blood products, IV bags, body parts and other waste to landfills. Incineration opponents contend there is no reason why other hospitals shouldn't do the same. * * *

The governor has stopped short of calling for a total ban on incineration in Illinois. He has said a commercial medical waste burner near Downstate Clinton can keep operating.

Posted by Marcia Oddi on Saturday, August 20, 2005
Posted to Environment

Friday, August 19, 2005

Not Law but Important - Aetna Pilot Site Details Fees Paid to Doctors

NPR's Morning Edition had a piece this morning reporting:

Through a Web site, the health insurer Aetna will disclose how much it pays 5,000 Cincinnati-area doctors for 600 common medical services. The company says patients can use the pilot program to comparison shop.
Here is Aetna's press release. Some quotes (my emphasis):
Aetna (NYSE: AET) today announced the first program of its kind to let consumers find out what they can expect to pay at the doctor’s office before going in for a visit. This means that, for the first time, consumers can better gauge their out-of-pocket health care expenses by having online access to the actual discounted rates for up to 25 of the most common office-based services offered by their own primary care or specialist physician. The program will initially be piloted with information for approximately 600 distinct procedures provided by 5,000 individual physicians and physician groups in Cincinnati, Dayton and Springfield, OH, Northern Kentucky and Southeast Indiana.

“As an industry, we need to make it simpler and easier for consumers to access information that will support them in making well-informed health care decisions,” said Aetna President Ronald A. Williams.“ The biggest impediment to effective consumerism in health care has been the unavailability of relevant data on health care quality and cost. We’ve made great strides in providing consumers with details on quality through our Aexcel high performance networks, Hospital Comparison Tool, and the ‘Rate Your Medical Professional’ survey on DocFind. Now, we are complementing those efforts by taking the lead on opening what is often perceived as the ‘black box’ on physician-specific pricing. * * *

“I applaud Aetna for taking a significant step toward transparency of health care pricing,” said Regina Herzlinger, the Nancy R. McPherson Professor of Business Administration, Harvard Business School. “Consumers should know how much a service will cost them before they make the purchase, and health care should be no exception.”

"The industry has long taken the position that health care pricing is proprietary, and therefore has not shared the true costs of medical services with consumers on a prospective basis -- only after care is received," said Ray Herschman, National Consulting Practice Leader, Mercer Health and Benefits Consulting. "Employers and consumers will be very encouraged by Aetna's pilot program; we believe this important milestone, on the road to a more transparent consumer-driven healthcare marketplace, will lead to more of this important information being shared with consumers."

Of course this is information that those of us with high-deductible health insurance long have been looking for. The free section of the Wall Street Journal Online had this story this morning. Some quotes from this lengthy story:
The growing effort to enlist consumers in reducing health-care costs has been stymied by the fact that most people just don't know what medical care costs.

Private and government health coverage has helped shield them from bills. And even with newer consumer-driven plans that employ Health Savings Accounts, which give people more of a financial stake in the issue, pricing information can be hard to come by.

Now, a major national health insurer is making an effort to change that. Starting tomorrow, Aetna Inc. plans to make available online the exact prices it has negotiated with Cincinnati-area doctors for hundreds of medical procedures and tests. The initiative, which Aetna hopes to take eventually to other parts of the country, aims to give patients the tools to comparison shop and make savvier decisions with their health-care dollars.

Aetna is the first major health insurer to publicly disclose the fees it negotiates with physicians. Some in the health-care industry say the move is likely to push more insurers to follow suit, which in turn would give a significant boost to consumer-driven health plans.

These plans combine high-deductible insurance policies with tax-favored savings accounts that consumers can use to pay for medical care until they meet the deductible. The idea is that because people must pay for a big chunk of their care out of pocket -- and can build up any money they don't spend on health care -- they will be wiser in how they spend that money.

For such an approach to be truly effective, consumers would need to know how much medical treatment costs. In reality, though, that hasn't been the case. Unlike in almost every other consumer industry, from airlines to apparel to restaurants, most health-care pricing isn't readily available for customers to peruse upfront. Reluctance by doctors and health insurers to provide their prices has left many patients clueless about the cost of their care until they receive the bill after the fact -- not just in consumer-driven plans, but in any managed plan where at least some of the cost is borne by the consumer.

To see what health care consumers are facing, here is a 3/13/05 story from the St. Petersburg Times about a woman negotiating the costs of child birth. She was facing two obstacles - one, finding out what prices were being charged, and two, negotiating those prices down -- something that consumers with health insurance don't have to deal with. Some quotes:
TAMPA - Sandra Hughes is on the cutting edge as a health care consumer.

Unable to get maternity coverage for her third child's birth because of prior caesarean sections, Hughes called local doctors, hospitals and specialists well ahead of her February due date and negotiated for lower charges by offering cash upfront.

Whether she realized it or not, her frustrating journey through the business end of medical care could be the wave of the future as insurers try pushing responsibility onto individuals to spend health dollars wisely. Consumer-directed health plans, which put the patient in charge of finding the best care at the best price, are the rage among insurers and employers as they seek ways to control rising costs.

Gary Claxton, vice president of the Kaiser Family Foundation, said although these plans are being aggressively promoted by insurers, no one knows how successful an individual will be in negotiating lower prices for medical services.

"There's a group who think individuals will get the pricing an insurer normally gets," he said. "A smaller camp thinks it may mean an opportunity to be stuck with higher rates. Then there are all the jokes about how good a negotiator you can possibly be when you're not wearing your pants."

Finally, another similar story from the front page of the 4/5/05 WSJ, unfortunately not freely available online, also talked about Mrs. Hughes. Some quotes:
It can be a daunting task, taking on a huge, lucrative medical industry. There are about four million births a year in this country, and while costs vary widely, a typical birth can run anywhere from $7,000 to $12,000, according to various insurance brokers and health experts. Everyone from hospitals to the obstetricians, midwives, radiologists and testing labs has a stake in that business.

The process also can be an emotionally charged one that involves tough trade-offs. Women worry about alienating the doctors who will be handling the birth of their child. Prenatal care and childbirth can involve numerous checkups, tests, sonograms and pain treatments, and women often must ask themselves hard questions about how much care they can or should pay for.

But that is exactly what many employers, health insurers and policymakers want patients to start doing to help control health costs. Many employers are expected to offer some type of consumer-driven plan next year and maternity care is seen as an apt area for this approach because families have months to explore their options, which can include maternity discount cards, prepackaged birth plans or less-expensive nurse midwives. * * *

Patients are learning how to make the complex medical billing system work in their favor. When Sandra Hughes in Florida reviewed a breakdown of what her previous insurer paid for her last pregnancy it showed her the rates were much lower than what the doctors and hospital charged so-called cash patients who pay out of pocket. When she asked for the same deal on her current pregnancy, one obstetrician complied. When she asked another doctor's practice to match it they did, cutting the usual $3,000 fee to $1,900. When she tried the same with the hospital, she met resistance.

Hospital costs are covered on the Aetna pilot site either; hopefully that will be Phase 2.

Posted by Marcia Oddi on Friday, August 19, 2005
Posted to General News

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending August 19, 2005

The ILB is pleased to announce that, with the agreement of the Office of the Clerk of the Indiana Courts, the ILB will post each week the Clerk's list of the Disposition of Case by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals that week. Here is the Court of Appeals NFP List for August 19, 2005. There are 56 cases listed this week.

Posted by Marcia Oddi on Friday, August 19, 2005
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending August 19, 2005

Here is the Indiana Supreme Court's transfer list for the week ending August 19, 2005. Today's list includes three transfer grants. The most notable denial is Save the Valley, Inc., et al v. Indiana-Kentucky Electric Corp., In. Dept. of Environmental Mgmt, found on p. 3 of the list.

For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, August 19, 2005
Posted to Indiana Transfer Lists

Ind. Gov't. - Governor Daniels releases 6-month progress report

Here is a link to the Governor's press release. Here is a direct link to the 61-page report itself.

The 2-page report on IDEM begins on page 26 of the pdf document (or the page numbered "23" in the document itself).

This link leads to a 31-page document titled "Agency Performance Metrics."

Posted by Marcia Oddi on Friday, August 19, 2005
Posted to Indiana Government

Law - State Farm Wins Reversal of $1 Billion Suit

"State Farm Wins Reversal of $1 Billion Suit: Illinois Court Overturns Class Action; Business Groups Hope Ruling Sets Precedent" is the headline to this story today in the Washington Post. Some quotes:

State Farm Mutual Automobile Insurance Co., the largest U.S. auto and home insurer, won the reversal of a $1 billion class action in an Illinois Supreme Court judgment yesterday. The reversal is a major victory for pro-business groups hoping to limit similar class-action cases.

The court said the 4.7 million claimants who accused the company of approving the use of inferior parts in collision repairs of their cars and trucks were too varied to be grouped in one class.

The State Farm ruling could signal how the Illinois Supreme Court might rule in another major class-action suit it is considering, lawyers said. In that case, an Illinois county court ruled that Philip Morris USA Inc. had deceived consumers into believing light cigarettes are safer than regular cigarettes and ordered it to pay $10.1 billion.

The Chicago Tribune story today begins:
The Illinois Supreme Court on Thursday overturned a $1.18 billion judgment against State Farm Mutual Automobile Insurance Co. of Bloomington, setting aside a ruling against the company for using lower-cost generic auto parts to repair damaged cars rather than more costly original manufacturer equipment.

The decision is significant not only for State Farm, the nation's largest auto insurer, and its customers, but also may illuminate the thinking of the court, which is soon to rule on an important case involving Philip Morris.

Both the State Farm and Philip Morris cases hinge on the use of class-action lawsuits. The State Farm ruling may make it more difficult to bring class-action lawsuits in Illinois and discourage others around the country seeking to launch class actions.

"The Illinois Supreme Court has sent a message that it will carefully scrutinize class actions and perhaps cut back on the disturbing trend of out-of-control jury awards, " said Stephen B. Presser, a professor at Northwestern University Law School.

If that occurs, consumers may suffer, since class-action lawsuits were devised as a way for people with small claims to band together to press cases against large, well-funded corporations, countered Michael J. Kaufman, associate dean and professor of law at Loyola University of Chicago School of Law.

The decision is Avery v. State Farm Mutual Automobile Insurance Co.(8/18/05), available here via Findlaw.com.

Posted by Marcia Oddi on Friday, August 19, 2005
Posted to General Law Related

Ind. Gov't. - Plan may oust journalists from Statehouse basement cubicles

Jennifer Whitson has a story today in the Evansville Courier& Press headlined: "Plan for gift shop puts media office at risk." Some quotes:

A summer legislative committee is looking into where it might be possible to set up a mini-museum and gift shop in the Indiana Statehouse, and one leader is eyeing space on the Capitol's ground floor.

But that option could mean a rent-free media office on the first floor would be displaced, according to the Statehouse Museum Committee Chairman Rep. Jim Buck, R-Kokomo. * * *

The rent-free media offices, which house about a dozen newspaper, radio and television bureaus, have been a sore point in the past. One state senator would routinely introduce bills to kick the media out of the offices, and the testimony routinely became lawmakers' chance to vent about coverage they didn't like.

Some newspapers, in turn, offered to pay for the offices, but the state declined the offer. The Evansville Courier & Press has a free office in the Statehouse. * * *

The legislative committee will discuss plans and take a tour of the ground floor space at an Aug. 30 meeting.

Posted by Marcia Oddi on Friday, August 19, 2005
Posted to Indiana Government

Not Law but Interesting - U.S. News College Rankings Out

The Louisville Courier Journal has this AP report today on the latest guide to American colleges by U.S. News & World Report. The guide "ranks the University of Notre Dame No. 18, Purdue University No. 60 and Indiana University No. 74." Some quotes:

Smaller schools that grant master degrees are ranked by their geographical region. In the Midwest, Valparaiso was ranked No. 2, Butler University tied for No. 6, the University of Evansville tied for No. 10, the University of Indianapolis tied for No. 29 and Anderson University was No. 43.

Last year, Indiana University was No. 71. School officials said there were few surprises in the rankings, which are based partly on how selective a school is.

IU admits 83 percent of applicants. IU Bloomington chancellor Ken Gros Louis said he doesn't want Indiana to become a selective state school like the University of Michigan.

"That's an issue the trustees will have to consider, to what extent we maintain access for students who want to come to Bloomington," he said. "My feeling is, the state has built a lovely campus, and if Indiana citizens are qualified and want to come here, they should be able to."

Purdue's College of Engineering tied with Carnegie Mellon and Cornell universities for eighth nationally among doctoral-granting universities. * * *

Rose-Hulman Institute of Technology topped the list of best undergraduate engineering programs whose highest degree is a bachelor's or master's.

The magazine ranked IU's Kelley School of Business 11th among the nation's undergraduate business programs. The University of Notre Dame's Mendoza College of Business tied for No. 22.

Posted by Marcia Oddi on Friday, August 19, 2005
Posted to General News

Law - Still more on "Legal issues concerning e-mail"

Kentucky Governor Fletcher's merit hiring troubles continue. Today the Louisville Courier Journal, in a story by Mark Pitsch, reports:

FRANKFORT, Ky. -- The state Transportation Cabinet committed "egregious breaches of good faith" by not providing e-mails related to allegations that Gov. Ernie Fletcher's administration broke state hiring laws, a judge said yesterday.

Franklin Circuit Judge William Graham said the cabinet must let Attorney General Greg Stumbo review all records for significance in a grand jury investigation into the allegations. * * *

"In these instances we have egregious breaches of good faith in the court," Graham said. "I don't think anyone with a lick of sense can read these e-mails -- regardless of whether or not they have legal training -- and not understand that these e-mails pertain to the investigation and are responsive to the grand jury subpoena."

Stumbo's office first learned of the e-mails Aug. 14 when they were published in The Courier-Journal, which had obtained them under the Kentucky Open Records Act.

The LCJ also has a lengthy story by Tom Loftus headlined "Notes and e-mails suggest Fletcher had hand in hiring." Some quotes:
[Kentucky] Governors have authority to fill top jobs on their staffs by direct appointment, with whomever they choose. But state law requires that merit system jobs be filled through a competitive process where only qualifications of applicants are considered. To consider an applicant's political beliefs is illegal.

[Kentucky] Assistant Attorney General Scott Crawford-Sutherland said, "If someone were to promise a merit job to another person before interviews were conducted -- before the competitive process -- and the job was given, that would violate the merit process."

Earlier in the story:
When a merit system job opened in the Jackson highway office, four Republican judge-executives told the governor's office that it should go to Republican Billy Montgomery, according to internal e-mails.

But a Fletcher administration official said Gov. Ernie Fletcher had a different choice -- Jim Maggard, a Democrat who supported the governor.

"Gov. promised job to Maggard," according to an undated handwritten note that the attorney general's investigators found in a personal notebook of Dan Druen, a commissioner in the Transportation Cabinet.

To please Fletcher, Deputy Transportation Secretary Dick Murgatroyd proposed giving the job to Montgomery and creating another job for Maggard, according to an e-mail contained in court records.

"We'd like to handle this so that we maintain some peace for the Governor," he wrote. " … We can promote Montgomery and create a spot for Maggard which we think will keep him happy."

The job Montgomery got on Oct. 1 -- administrative manager -- is among those state positions protected by merit system laws, which forbid political influence in hiring, firing, transfers or promotions.

Posted by Marcia Oddi on Friday, August 19, 2005
Posted to General Law Related

Thursday, August 18, 2005

Ind. Gov't. - State ABC won't renew local South Bend liquor permit

Jeff Parrott of the South Bend Tribune has this story today. Some quotes:

SOUTH BEND -- The Indiana Alcohol and Tobacco Commission has voted unanimously to deny liquor license renewal for a South Bend strip club, despite an earlier, favorable nod from local officials. * * *

The state board historically has followed local recommendations, but Heath, a former Republican Lafayette mayor and Tippecanoe County sheriff who was tapped to head the commission by Gov. Mitch Daniels, said he did not like what he saw after reading through the case file.

"Just with the history and stuff, the type of establishment it has been, that was just my feeling on it," said [Alcoholic Beverage Commission Chairman Dave Heath], noting that nothing in particular jumped out at him. "I'm sure they will appeal it."

After a lengthy remonstrance hearing July 27, the St. Joseph County Alcoholic Beverage Board voted 2-1 to give the request a favorable recommendation. Citizens for Community Values, a nonprofit anti-pornography group, and the South Gateway Association, representing South Michigan Street businesses, presented documents, news clippings and witnesses portraying the Glo Worm as a haven for drugs, prostitution and violent crime, thus constituting a public nuisance. * * *

The state board's decision could be good news for taxpayers. The city is negotiating with [Glo Worm owner Patricia] Colley to buy the Glo Worm, Teaser's and the Quarterback Lounge, a former strip bar next to the Glo Worm that now operates legally as a "sports bar," city attorney Chuck Leone confirmed Wednesday.

In September, Leone said the city had briefly considered buying the clubs but decided it would be "rather foolish to pay millions of dollars for these businesses and then two months later have another adult business open up down the street."

But Leone said Colley has since lowered her asking price.

"We've had some discussions and as a result of those discussions, it leads us to believe the dollar amounts could be in a much more reasonable range," Leone said.

The city wants to set aside $350,000 to buy and demolish the Glo Worm and Quarterback Lounge, according to a draft document detailing how the city's Community Development division would like to spend South Gateway corridor money in coming years. Leone said he is trying to find private sources of funding, such as a donation, but he declined to identify the source.

Should the Glo Worm ultimately lose its license, the purchase price would drop considerably because the city would only need to buy the real estate -- not the real estate and the business, which includes the license, Leone said.

Posted by Marcia Oddi on Thursday, August 18, 2005
Posted to Indiana Government

Ind. Courts - Montgomery County judges issue mandate for staff raises

The Lafayette Journal&Courier has a story today reporting:

CRAWFORDSVILLE -- The three Montgomery County judges have issued a mandate requiring the county council to appropriate funds to immediately increase pay for court employees by 31-48 percent.

Judges Thomas Milligan, David Ault and Peggy Lohorn issued the mandate late Tuesday, citing consistent problems retaining court reporters and administrative help.

But the president of the Montgomery County Council said there's no way the county can give court employees raises without taking money away from other county employees or cutting staff elsewhere.

"I am totally put out with the judges, knowing that we don't have any money in the general fund right now," council president Harold Barclay said Wednesday. "We're going to have to cut somebody to get the money that they are asking for. Are they saying that their employees are better than the other county employees?" * * *

But according to the judges' mandate, the salary situation in the courts has reached a crisis level. The mandate states that a current Circuit Court employee has notified the judge she will be leaving the court and her $21,069-a-year job to take a position at a Crawfordsville law firm that pays about $10,000 a year more.

That person "would be the fourth employee to leave that court in less than two years," according to the mandate. The mandate requires that the annual salary increase to $31,200 from $23,638 for court reporters; to $31,200 from $21,068 for court administrators; and to $27,200 from $19,142 for secretary/bailiffs.

Posted by Marcia Oddi on Thursday, August 18, 2005
Posted to Indiana Courts

Ind. Courts - Amazing story from Evansville federal court

Maureen Hayden of the Evansville Courier& Press writes today of a police blunder in a federal drug trial Tuesday. Some quotes:

Zach Butler is a second-year law student from Indianapolis who spent much of his summer as a law clerk in the Evansville federal courts, but on Tuesday he mistakenly was identified by an Evansville police officer as the defendant in a drug-conspiracy case.

The mistake occurred during a federal trial in which a portion of the evidence was thrown out because of an illegal search by city police officers. The officers, according to a judge's ruling, coerced occupants of the home to agree to the search by threatening to arrest them, and then threatened to jail an elderly resident of the home and take away her 8-year-old grandchild if she refused to sign a form that said she had voluntarily agreed to the search.

Neither incident stopped the three-day trial of federal defendant Raymond Walker III, 33, of Evansville, who was convicted late Wednesday on drug conspiracy charges.

While prosecutors lost part of their drug evidence, they still had phone recordings of Walker discussing drug deals and the testimony of Rose McCray, who was arrested after delivering drugs to an undercover officer. She testified Walker set her up with a "crack cocaine starter kit" in the spring of 2004. * * *

During [defense attorney John] Brinson's closing arguments, he noted the defendant had been misidentified in court by a drug detective, and asked jurors to disregard the rest of the officer's testimony. Brinson called the misidentification a "travesty" and a "disgrace."

The incident occurred Tuesday as Evansville Police Department detective Michael Kennedy was testifying about his role in a drug investigation last year, which was conducted by a joint task force of local, state and federal agents. Kennedy testified he took part in the surveillance of a controlled drug buy last December between a confidential informant and a suspect that he described as a black male. Kennedy testified he arrested the suspect minutes after the drug buy took place.

When asked by the prosecutor if the suspect was in the courtroom, Kennedy nodded affirmatively, but instead of pointing to the defendant and describing him, Kennedy looked toward Butler, a Valparaiso University School of Law student who spent the summer working as a law clerk in the federal courts in Evansville.

"He's wearing a dark suit with a purple tie," Kennedy said, describing Butler's clothing.

Butler is also black and was the only other black male in the courtroom at the time of Kennedy's testimony. Butler and other court officials appeared surprised by the statement, and Kennedy quickly apologized. He testified that a podium in the courtroom blocked his view of the defense table, where Brinson was sitting with the defendant.

Brinson asked U.S. District Judge Richard L. Young to stop the proceedings momentarily, and requested the record reflect that Kennedy had just mistakenly identified a member of the judge's staff as the drug defendant.

Young responded, "It certainly will." Brinson raised the issue again during closing arguments. "He (Kennedy) looked around and saw a black man and picked him out and said, 'That's the defendant,'" Brinson said. "... How much else in this case is guesswork?"

Assistant U.S. Attorney Matt Brookman told jurors that Kennedy's mistake was "inexcusable," but asked the jury to overlook it.

[Update 8/19/05] The Louisville Courier Journal has a shorter AP version today, headlined "Man convicted in drug case was misidentified: Detective pointed to judge's clerk."

Posted by Marcia Oddi on Thursday, August 18, 2005
Posted to Indiana Courts

Ind. Decisions - More on "Associational standing stands"

As the ILB was apparently the first to report yesterday (here), the Indiana Supreme Court has failed to grant transfer in Save the Valley v. Indiana-Kentucky Electric. Today, Grace Schneider of the Louisville Courier Journal writes:

Three Indiana environmental organizations have won a major legal victory that establishes the right of citizens' groups to intervene in legal and administrative disputes.

The case involves the Clifty Creek power plant near Madison. But lawyers on both sides say the action by the Indiana Supreme Court this week has broad legal and public-policy implications for government agencies and special-interest groups across the state.

The high court declined to consider an Indiana Court of Appeals decision that upheld the right of interest groups to intervene in lawsuits and to challenge government permits and regulations on behalf of their members.

At issue was whether a group could intervene in a dispute if its members are affected, or whether the group itself -- through such things as its building, property or employees -- had to be affected.

It's an important question because grassroots organizations rely on being able to represent their members in challenging government agencies and intervening in lawsuits, said Mike Mullett, an Indianapolis-based lawyer who represented the environmental groups -- Save the Valley, Hoosier Environmental Council and Citizens Action Coalition.

"Obviously, we're very pleased," Mullett said in a telephone interview yesterday. The ruling "allows organizations to go to bat for their members. That's just critically important to citizen participation."

Tony Sullivan, the lead co-counsel for Indiana-Kentucky Electric Corp., which owns the power plant, said he was disappointed with the Supreme Court's decision not to consider the case.

"We don't think the applicable Indiana law was applied in this case," said Sullivan, a lawyer with Barnes and Thornburg, an Indianapolis firm that represented the utility. * * *

A Marion County judge sided with the power plant in 2003, ruling that an office building, property or employees of Save the Valley and other groups must be affected by the permit to have standing in the case.

But the appeals court ruled in January that the groups do have standing under a 1977 U.S. Supreme Court decision.

That decision, in a case from Washington state, created the doctrine of "associational standing," giving groups the right to represent members. About 20 states, including Kentucky, have adopted the standard.

Posted by Marcia Oddi on Thursday, August 18, 2005
Posted to Administrative Law | Environment | Ind. App.Ct. Decisions

Ind. Decisions - More on Court of Appeals Wicca Decision

As reported here in the ILB, the Court of Appeals yesterday ruled on the Wicca issue presented by a Marion County Superior Court ruling. Mike Smith of the AP reports in a story carried in the Louisville Courier Journal:

A judge exceeded his authority by ordering an Indianapolis Wiccan activist and his ex-wife to shield their 9-year-old son from what he called their "non-mainstream religious beliefs and rituals," the Indiana Court of Appeals ruled yesterday.

The appeals court threw out an order from Marion Superior Court Judge Cale Bradford, citing a state law that gives a custodial parent the authority to determine a child's upbringing -- including religious training -- unless certain exceptions are met. * * *

A court commissioner wrote the unusual order into the couple's divorce decree after a routine report by the court's Domestic Relations Counseling Bureau noted that both Jones and his ex-wife are pagans who send their son, Archer, now 10, to a Catholic elementary school.

The decree said "the parents are directed to take such steps as are needed to shelter (the child) from involvement and observation of these non-mainstream religious beliefs and rituals." The divorcing parents challenged that section of the decree, but Bradford let it stand.

See also this front-page story today by Michele McNeil in the Indianapolis Star

Posted by Marcia Oddi on Thursday, August 18, 2005
Posted to Ind. App.Ct. Decisions

Environment - More on the Mongo River navigability issue

Following up on earlier stories (see the 7/31/05 and 8/2/05 ILB entries), Frank Gray of the Fort Wayne Journal Gazette reports here today:

In Mongo, they’re saying it’s a first.

Friday night, the LaGrange County commissioners will hold a special session at the fire station, where they are expected to make an announcement of some sort.

For the past three weeks, Mongo residents have been pressuring the commissioners to declare the Pigeon River a navigable river. That, they say, would get the Department of Natural Resources out of their way and give them freer access to the river, which runs right by the town.

It would also let residents swim in the swimming hole they used for 100 years and give residents and tourists access to the river over Labor Day weekend and during their last festival of the summer, a week after Labor Day. * * *

What will the commissioners announce?

“That’s all I’m going to tell you,” Commissioner George Bachman said. “We’ll make an announcement at the meeting. It’s a touchy situation,” and if word leaks out early of what they intend to announce, by the time the message has been passed on 10 times, it will be all twisted, he said.

Posted by Marcia Oddi on Thursday, August 18, 2005
Posted to Environment

Environment - Safety measures for BP's Whiting refinery

The Munster (NW Indiana) Times reports today, in a story by Susan Brown:

WHITING | Local BP and United Steelworkers officials said Wednesday they will cooperate with an historic call by the U.S. Chemical Safety and Hazard Investigation Board for an independent panel to review safety at BP's five North American refineries, including Whiting.

The agency is investigating several incidents at BP's Texas City plant, including an explosion that killed 15 people and injured 170 others in March.

The federal safety board issued an "urgent" safety recommendation for the first time in its history Wednesday in calling for the panel to conduct an investigation similar to one following the explosion of the space shuttle Columbia.

Tom Keilman, spokesman for BP's Whiting refinery, said the refinery will fully cooperate and comply with the actions recommended .

"The Texas City (explosion) was the worst tragedy in the history of BP," Keilman said. "The Whiting refinery will make every effort to insure that nothing like that happens here." * * *

Although specific incidents involving Whiting have never been at issue, Keilman said the refinery has been evaluating all its systems as they relate to the Texas City incident and are assessing suitable safety measures.

Since the incident, the Whiting refinery has increased the distance of workers' trailers from operating units and assured itself of a high level of integrity regarding operating units' shutdown and startup procedures, he said.

In addition to the measures already undertaken, Keilman said the refinery has been studying its options regarding potential replacement of its vent stacks.

BP recently announced the vent stacks at all five of its U.S. sites will be replaced. Vent stacks release vapors into the air when pressure builds in an isomerization unit. They will be replaced with a flare system that burns off the material.

Posted by Marcia Oddi on Thursday, August 18, 2005
Posted to Environment

Wednesday, August 17, 2005

Law - More on Judge Roberts' Indiana connection

"Roberts' Ind. Hometown Draws Scrutiny" is the headline to this AP story by Tom Coyne and Ashley M. Heher, dateline Long Beach, Indiana. It begins:

Like many towns across America, the exclusive lakefront community where Supreme Court nominee John G. Roberts Jr. grew up during the racially turbulent 1960s and '70s once banned the sale of homes to nonwhites and Jews.

Just three miles from the nearly all-white community of Long Beach, two days of looting and vandalism erupted when Roberts was 15, barely intruding on the Mayberry-like community that was largely insulated from the racial strife of that era. [This would have been Michigan City]

It was here that the 50-year-old Roberts lived from elementary school until he went away to Harvard in 1973, and that decade - as well as the rest of his life - is receiving intense scrutiny as the Senate gears up for its Sept. 6 confirmation hearings on President Bush's first Supreme Court nominee.

However, later in the story:
Roberts' father, a manager at a Bethlehem Steel mill in nearby Burns Harbor, moved the family to Long Beach in the early 1960s.

The family purchased land a few blocks from the beach in 1966 and built an unassuming tri-level house. The Roberts property did not include a racially restrictive covenant, according to LaPorte County deed records, and the restrictions had begun fading away by then.

Posted by Marcia Oddi on Wednesday, August 17, 2005
Posted to General Law Related

Ind. Courts - Strict penalty urged for Elkhart judge

"Strict penalty urged for Elkhart judge" is the headline to this story today by Martin DeAgostino in the South Bend Tribune. Some quotes:

INDIANAPOLIS -- An Elkhart County judge should be stripped of office for his role in an armed confrontation at a Simonton Lake house in 2003, according to the Indiana Commission on Judicial Qualifications.

The commission, an arm of the Indiana Supreme Court, also recommended unspecified legal sanctions against Superior Court 1 Judge L. Benjamin Pfaff.

Pfaff faces no criminal charges from the incident, which involved his search for his runaway teen daughter, who was then 15.

But the commission charged him with violating the state's judicial conduct rules, which led to a two-day trial last month before a master panel of judges in Boone County. The trial included accusations that Pfaff lied about his actions in subsequent investigations, including those by a special prosecutor and the commission.

The master panel will recommend a course of action by Aug. 29 to the Indiana Supreme Court, which will make the final decision. * * *

The commission described Pfaff's actions as "atrocious" and said he has shown no remorse for them.

According to David J. Remondini, counsel to Indiana Chief Justice Randall T. Shepard, the Supreme Court last removed a judge from office in October 2004.

Charges then involved a Lake Superior Court judge's failure to promptly issue orders in criminal cases and in giving inaccurate information to the Supreme Court about her compliance.

See this Oct. 13, 2004 ILB for details of the Lake County removal. See this April 4, 2005 entry for another pending Lake County case.

Posted by Marcia Oddi on Wednesday, August 17, 2005
Posted to Indiana Courts

Law - Settlement ends NIT v. NCAA lawsuit

The Indianapolis Star website is reporting here this afternoon, in a story by Mark Alesia:

NEW YORK — The NCAA will buy the preseason and postseason National Invitation Tournaments for $40.5 million and pay another $16 million to the NIT to end the federal antitrust lawsuit against the Indianapolis-based organization, the two sides announced today.

The total of $56.5 million will be paid over a 10-year period.

“This is an historic day for men’s college basketball,” NCAA president Myles Brand said in a statement before a press conference announcing the deal at Madison Square Garden. “The agreement provides the NCAA with an opportunity to better define the college basketball season and to build on the status of the two NIT events. We intend to grow these tournaments to showcase college basketball and the student-athletes who make the game great.”

The NCAA will take over the tournaments starting this fall, and ESPN will continue to broadcast the NIT events. The finals for both will continue to be held in the New York City area for the next five years.

Other details, including whether the sizes of the fields for the NCAA and NIT tournaments will change or how the NIT teams will be selected, were still being worked out, Brand said.

[6:00 p.m. update] The ironic twist. This morning's NY Times sports section contained a brief story (apparently not available online) written before the terms of the settlement were announced. It concluded:
During the trial, jurors saw videotaped testimony from Texas Tech Coach Bobby Knight, who said the NCAA had created a monopoly.

"I have felt as long as I have been in coaching that the NCAA has wanted to eliminate the NIT," he said.

Posted by Marcia Oddi on Wednesday, August 17, 2005
Posted to General Law Related

Ind. Law - Rochester attorney contributes to ABA book

Rochester attorney Ted A. Waggoner of Peterson & Waggoner, LLP, writes to say:

I am pleased to announce that the ABA has just published a book for which I am a contributing author. The blurb below describes the book, which is already moving up the ABA bestseller lists with over 13,000 pre-ordered copies.

Over thirty lawyers contributed to this publication. I am chapter 3.9 "Five Essential Steps to Marketing in a Really Small Town"

The book is titled "How to Capture and Keep Clients: Marketing Strategies for Lawyers." For more information, check here on the American Bar Association site.

Posted by Marcia Oddi on Wednesday, August 17, 2005
Posted to Indiana Law

Ind. Decisions - Supreme Court issues one today

In Jedediah J. Haltom v. State of Indiana (8/16/05), Justice Sullivan writes:

Jedediah Haltom crashed his truck into a woman’s car while driving under the influence. He settled with her for his car insurance’s limits, and she executed a release from any future damages or compensation “of whatever nature.” In the collateral criminal prosecution, Haltom argued that the trial court’s award of cash restitution to the victim violated the release. The trial court had authority to award restitution: a private contract to which neither the State nor the court are parties cannot impinge upon the authority of the State to seek and the court to impose a criminal sanction. * * *

Conclusion. Having previously granted transfer, we hold that civil settlements have no preclusive ef-fect on the power of a criminal court to order restitution. The trial court’s order for restitution is affirmed.

Rucker, J., concurs.
Dickson, J., concurs with separate opinion.
Boehm, J., concurs in part and dissents in part with separate opinion.
Shepard, C.J., dissents with separate opinion.

Posted by Marcia Oddi on Wednesday, August 17, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Associational standing stands

The Indiana Supreme Court reportedly has failed to grant transfer in Save the Valley v. Indiana-Kentucky Electric -- thereby now recognizing the doctrine of Associational Standing in Indiana. For background, see this ILB entry (third case), and this entry from 1/13/05. (See also this Floyd County suit that I have lost track of.)

Posted by Marcia Oddi on Wednesday, August 17, 2005
Posted to Environment | Ind. App.Ct. Decisions | Indiana Law

Ind. Decisions - Two opinions of particular interest among those today from Court of Appeals

The first is the "Wicca case" from Judge Cale J. Bradford's Marion County Superior Court. See the earlier May 26, 2005 Indianapolis Star writeup by Kevin Corcoran here, headlined "Judge: Parents can't teach pagan beliefs - Father appeals order in divorce decree that prevents couple from exposing son to Wicca".

Judge Riley writes:

Appellant-Petitioner, Thomas E. Jones (Father), appeals the trial court’s Decree of Dissolution of Marriage (the Decree). We affirm, but order that subparagraph 10(j) be stricken from the Decree.

ISSUE. Father raises two issues on appeal, but we find one issue dispositive: whether the trial court lacked authority to order that divorcing parents, who are practicing Wiccans, take steps to shelter their child from involvement in and observation of “these non-mainstream religious beliefs and rituals.” * * *

CONCLUSION. Because the trial court did not find that a limitation on Father’s parental authority to determine the religious training of his child was necessary to prevent endangerment to the child’s physical health or significant impairment of the child’s emotional health, we hold that the trial court abused its discretion in ordering the parents to shelter the child from involvement in and observation of “these non-mainstream religious beliefs andrituals[.]”

We therefore order that subparagraph 10(j) be stricken from the Decree, but we affirm the Decree in all other respects.

Affirmed, but ordered that subparagraph 10(j) be stricken from the Decree.

SULLIVAN, J., and NAJAM, J., concurs.

The decision is Thomas E. Jones, Jr. v. Tammy U. Jones (8/17/05).

[Update 2:11 p.m.] The Indianapolis Star has now posted this brief story by Michele McNail that reads in part:

The Indiana Court of Appeals today upheld the rights of parents to expose their children to Wicca, a contemporary pagan religion.

In its unanimous ruling, the court declared that a Marion County judge was out of bounds in approving a divorce decree that also directed the parents to shelter their 10 year old son from non mainstream religious beliefs and rituals. * * *

Judge Patricia A. Riley, writing on behalf of the three judge appeals court panel, wrote that trial courts can limit parent’s authority if it’s necessary to prevent endangerment to a child’s physical health, or significant impairment of the child’ emotional health. However, Marion Superior Judge Cale Bradford did not determine that was the case, the judges ruled.

The second is this decision from Judge Baker in James D. Jennings v. St. Vincent Hospital, et al. (8/17/05) that begins:
Today, we are confronted with a seemingly unresolvable case. We take this opportunity, however, to point out a deficiency in our current system of worker’s compensation. Hence, we begin our discussion with the following:
Because when the world starts to move from a primarily vertical (command and control) value-creation model to an increasingly horizontal (connect and collaborate) creation model, it doesn’t affect just how business gets done. It affects everything—how communities and companies define themselves, where companies and communities stop and start, how individuals balance their different identities as consumers, employees, shareholders, and citizens, and what role government has to play. All of this is going to have to be sorted out anew.
Friedman, Thomas L., The World is Flat—A Brief History of the Twenty-First Century (Farrar, Straus and Giroux 2005).

Appellant-defendant James D. Jennings appeals the trial court’s order to dismiss his claim for negligence against appellee-defendant St. Vincent Hospital and Health Care Center, Inc. (St. Vincent). In particular, Jennings contends that the trial court erred in determining that Jennings was a co-employee of St. Vincent and StarMed Staffing Corporation (StarMed), consequently making him eligible for StarMed’s worker’s compensation but barring him from raising a civil claim for monetary damages against St. Vincent. Thus, Jennings argues that the trial court erred in determining that it lacked subject matter jurisdiction over his negligence claim against St. Vincent.

Although we conclude that the seven-factor analysis our Supreme Court established in Hale v. Kemp, 579 N.E.2d 63 (Ind. 1991), supports the trial court’s conclusion, we invite our General Assembly to review our current system of worker’s compensation in light of the circumstances presented here.

Judge Kirsch concurs, Judge Barnes dissents with opinion (starting on p. 19).

Posted by Marcia Oddi on Wednesday, August 17, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - Indianapolis attorney Peter Rusthoven on Judge Roberts in the 80s

Barnes & Thornburg attorney Peter J. Rusthoven is quoted today in a Washington Post story on Supreme Court nominee John G. Roberts, headlined "Nominee's Letters From 80's Show a Lighter Side of Work," about "the daily labors of a junior lawyer in the White House in the mid-1980's." Some quotes:

No correspondent was too obscure to merit a reply, recalled Peter J. Rusthoven, who worked alongside Mr. Roberts for three years in the 80's as one of six lawyers with the title associate White House counsel. "We tried to give everybody a response," Mr. Rusthoven said.

Mr. Rusthoven, now a lawyer in Indianapolis, said the work was distinguished by the hourly alternation of the momentous and the trivial.

"In a day," he said, "you might work on a very important case from the Justice Department with serious policy implications. And then later, you'd be looking over the draft of a National Peach Month proclamation to make sure the subjects and verbs agreed and that it didn't go overboard on the merits of the peach." * * *

In the dusty boxes of documents are occasional glimpses of Judge Roberts's humor, with which Mr. Rusthoven said all the White House lawyers tried to leaven the drudgery of 60-hour workweeks.

Posted by Marcia Oddi on Wednesday, August 17, 2005
Posted to Indiana Law

Law - More on "Legal issues concerning e-mail"

Last Sunday, Aug. 14, the ILB quoted from a Louisville Courier Journal story on the on-going merit hiring investigation in Kentucky state government that was headlined: "E-mails reveal early hiring concerns."

Today the Louisville Courier Journal reports that the e-mails it quoted in its story Sunday apparently had not be provided to investigators by the Fletcher administration. Some quotes:

FRANKFORT, Ky. -- Gov. Ernie Fletcher's administration withheld e-mails from investigators in which officials said state hiring laws might have been broken, an administration lawyer acknowledged yesterday.

The attorney general's office learned of the e-mails after The Courier-Journal obtained them under the Kentucky Open Records Act and published them in a story Sunday.

The exchanges occurred in February, about three months before the attorney general opened an investigation into whether Fletcher administration officials pushed to hire political supporters for jobs that are by law protected from politics. * * *

M. Stephen Pitt, a lawyer for the Transportation Cabinet, acknowledged that the cabinet didn't turn over the e-mails between Otis Reed, the cabinet's former personnel director, and Dick Murgatroyd, Fletcher's deputy chief of staff.

Pitt said attorneys determined in May that the e-mails were not covered by a subpoena in which Attorney General Greg Stumbo's office asked for records related to state hiring.

"They don't relate to the hiring of specific employees. They are general musings by government employees," Pitt said. "There was no intent not to produce those documents, because we certainly did so for the newspaper."

Posted by Marcia Oddi on Wednesday, August 17, 2005
Posted to General Law Related

Law - Real estate development and land preservation

Several interesting stories today on real estate development and land preservation:

The Chicago Tribune reports here on "a land preservation effort coordinated not by a government entity but by the Conservation Foundation." The headline: "Land preservationists try new tack: Program in Kendall shuns condemnation."

The Indianapolis Star has a story this morning by Bruce C. Smith headlined "Luxury development: made in the shade: Trees, big lots mark million-dollar houses of Zionsville builder."

Meanwhile, fellow attorney Marty Lucas, North Judson, reported a few days back in his blog, BigEastern.com, that: "Big Eastern, Inc. has been awarded Indiana's only Private Stewardship Grants Program grant for 2005."

Posted by Marcia Oddi on Wednesday, August 17, 2005
Posted to General Law Related

Ind. Gov't. - Indiana Utility Regulatory Commission names sent to Governor

An AP story this morning in the Louisville Courier Journal reports:

INDIANAPOLIS -- A nominating committee recommended yesterday that Gov. Mitch Daniels consider six applicants, including a longtime state senator, to fill two open positions on the Indiana Utility Regulatory Commission.

Nineteen people had applied for the spots on the five-member panel, which regulates rates and other aspects of some phone, natural gas, electricity and water utilities. The six finalists include Sen. Greg Server, an Evansville Republican who has served in the Senate since 1980.

It is up to Daniels to make the final two choices and pick a chairman. Server would have to resign his Senate seat if chosen, and a caucus of GOP precinct committee members in his district would choose a replacement.

Others recommended yesterday were:

Daniel S. Arthur of Sudbury, Mass., a senior associate at an economic consulting firm called The Brattle Group.

David Lott Hardy, an attorney in Fort Wayne.

John E. Haselden of Avon, director of industrial development and engineering services for the Indiana Railroad Co.

Gary Powdrill
of Greenfield, a retired executive for the Ford Motor Co. who most recently did consulting work for ThyssenKrupp Presta, an automotive components maker based in Germany.

Michael W. Reed of Noblesville, a retired state general manager for GTE/Verizon. * * *

Daniels spokeswoman Jane Jankowski said the governor was expected to make his appointments within a week.

Posted by Marcia Oddi on Wednesday, August 17, 2005
Posted to Indiana Government

Tuesday, August 16, 2005

Ind. Gov't. - Town of Roseland may get help

There have been a slew more of stories about conflicts in the Town of Roseland since I posted this ILB entry on 7/31/05, titled "Controversy in Town of Roseland."

Today the South Bend Tribune, in a story by Nancy Sulok, reports:

ROSELAND -- The Indiana Association of Cities and Towns will send a legal representative to Roseland this week to discuss the various conflicts in the town.

Attorney Jodi Woods is to meet at 1:30 p.m. Wednesday with the three-member Roseland Town Council.

Council member David Snyder said Matthew Greller, IACT's executive director, called the town and said he wanted to visit. He said he is concerned about all the negative media attention being given to the conflicts in the town, Snyder said. * * *

Among the lawsuits is one filed by Charley Shields, a Town Council member who was ousted a few weeks ago as the council president. His lawsuit challenges the legality of the election and seeks to have the results declared invalid.

Other lawsuits include one filed by a town resident who claims his rights were violated when he received a ticket for displaying signs on his property, and one by a businessman who said his constitutional rights were violated when he was ejected from a Town Council meeting before it was called to order.

A fourth lawsuit is pending against the town and Snyder over a dispute concerning repairs on a sign at the Howard Johnson Inn.

Shields said he plans to attend Wednesday's meeting, which he predicted will be a waste of time.

"I'm being cynical because nothing will come of it," Shields said. "They (IACT) can't do any good in this matter."

He said he talked to an IACT official who told him the state agency hopes to mediate the conflicts among the council members and between the council and the citizens.

"It's going to be fruitless," Shields said.

Posted by Marcia Oddi on Tuesday, August 16, 2005
Posted to Indiana Government

Ind. Courts - Follow-up on "court costs soar in 2005"

Following up on its stories Sunday on soaring Indiana court costs, the Fort Wayne Journal Gazette has an editorial today urging the Supreme Court to study whether the higher fees limit access to the courts. Some quotes:

Are court fees making justice unaffordable to some Hoosiers? It’s an important question, because unaffordable justice is no justice at all. The Indiana Supreme Court should look into forming a statewide committee to study whether fees limit access to the courts.

Court costs must be examined before they get too unwieldy to rework and the fees hurt the very people the system is supposed to protect. And at least one legislator with some influence to help create a commission is worried about that. His reading of the situation doesn’t sound good.

“Somewhere along the line court costs will be a barrier to ordinary people obtaining relief,” Republican Rep. Ralph Foley of Martinsville, chairman of the House Judiciary Committee, told reporters Niki Kelly and Sara Eaton for their Sunday story. “I don’t know if we are there yet.”

That’s not to say that all the current fees and costs aren’t justified. A recent increase in filing fees, for example, will finance a needed salary increase for judges. Individually, these fees all have some merit. Collectively, though, the fees are an impenetrable mass for people to follow. It has become an accounting nightmare for county court clerks, Foley said.

Posted by Marcia Oddi on Tuesday, August 16, 2005
Posted to Indiana Courts

Environment - Manufacturer and environmental groups team up in Wisconsin, without success

This interesting story in the Chicago Tribune today begins:

It seemed an odd alliance: the environmentalists alongside the people who bring you Windex, Drano and Raid bug spray, united to try to stop a coal-fired power plant from being built near Lake Michigan.

But the company involved, family-owned S.C. Johnson & Son Inc. of Racine, Wis., has always marched to its own beat, in this case taking a legal challenge all the way to the Wisconsin Supreme Court.

Johnson and the environmentalists lost, however, and over the weekend Johnson's fifth-generation president, Fisk Johnson, announced in several newspaper advertisements that it would no longer take legal action to block plans for the plant in the Milwaukee suburb of Oak Creek. * * *

The utility announced plans more than four years ago to add two coal-fueled generating units to produce 1,200 megawatts of electricity at an existing power plant near Lake Michigan.

The new plant was controversial from the beginning because environmentalists complained that it would not use the latest technology to cut air emissions.

To cool the plant would require 2 billion gallons of lake water a day, roughly equal to what Chicago and its suburbs consume each day. While the water would be returned to the lake unpolluted, it would also return 15 degrees warmer, potentially a temperature threat to wildlife.

The utility argued that it was more sensible to use this design because a plant relying on cooling towers would use more energy and be more complicated to operate.

Further, the utility said it was also retrofitting older plants with modern pollution devices, effectively reducing overall emissions.

Illinois, by contrast, prohibited new use of lake water for plant cooling more than 30 years ago.

As the report continues: "In June, the Wisconsin Supreme Court approved the more than $2 billion project, the first new coal plant to be built in the state in a generation."

According to this report from WisPolitics.com, dated 12/17/04, "Dane County Circuit Judge David Flanagan sent shock waves throughout Wisconsin late last month when he overturned the state's approval of Wisconsin Energy's $2.15 billion coal plant project at Oak Creek."

Here is a very brief summary of the 6/2/805 Wisconsin Supreme Court decision to reverse the Dane County Circuit Court ruling, and here is the 174-page decision itself, Clean Wisconsin, Inc. v. Public Service Commission of Wisconsin.

Posted by Marcia Oddi on Tuesday, August 16, 2005
Posted to Environment

Indiana Law - Voting machine company to pay county $1.2 million

"Voting machine company to pay county $1.2 million" was the headline to this story yesterday in the Indianapolis Star. Some quotes:

Election Systems & Software agreed to pay cash and provide voting equipment for problems dating back to 2003, shortly after it signed an $11.1 million contract with the county.

The action could set a precedent for 32 other counties under contract with ES&S as election officials scurry to have polling sites in compliance with the Help America Vote Act by 2006. * * *

Problems first surfaced in 2003 when ES&S provided software that was not fully certified by the Indiana Election Commission for the optical scan machines.

Also, officials discovered ES&S had installed uncertified software on the touch-screen machines. The company replaced the software, but that new software was incompatible with software that compiles the results.

In fall 2003, more than 9,000 absentee ballots for the City-County Council election had to be hand-counted over two days because ES&S had not obtained certification for software on a central counting machine.

"I think we generally had issues with service," [Marion County Clerk Doris Anne Sadler] said. "I'm not embarrassed to say we like the machines themselves. It was the service related to the machines we had issues with, the lack of certification."

The county will be reimbursed more than $200,000 in legal fees from ES&S stemming from a lawsuit filed by the Democratic Party over ballot design that has since been resolved.

ES&S spokeswoman Jill Friedman refused to call the action a settlement, instead labeling it a redefinition of the company's contract with the county. * * *

• Johnson County, which has a $2.4 million contract with ES&S, faced the same certification problems as Marion County in 2003. Jeff Eggers, lawyer for the County Commissioners, will meet soon with Johnson County Clerk Jill Jackson to decide whether to take any formal steps toward litigation.

• Hancock County Clerk Linda Grass said any problems her office has had with ES&S were miniscule. * * *

Counties are responsible for choosing a vendor to supply voting equipment that is compliant with the Help America Vote Act. In addition to ES&S, four other companies are under contract with counties in the state.

An AP story today in several state papers contains much the same report.

For background, see ILB entries from 4/21/04 and 4/22/04.

Posted by Marcia Oddi on Tuesday, August 16, 2005
Posted to Indiana Law

Monday, August 15, 2005

Law - U.S. Supreme Court Judicial Term in Review

The home page of the Federal District Court for the Northern District of Indiana has a link (right side, labeled "08/08/05 Supreme Court: The Term In Review") that leads to a one hour and 50 minute presentation by the Federal Judicial Center of the Supreme Court's Term in Review, designed for judges, staff attorneys and law clerks.

Posted by Marcia Oddi on Monday, August 15, 2005
Posted to General Law Related

Indiana Law - U.S. Attorney joins Ind. ACLU in effort to force school district to grant a student excused absences so he can attend an annual religious festival

The Associated Press is reporting this afternoon, dateline Hammond:

The U.S. Justice Department has joined the Indiana Civil Liberties Union in a legal fight to force a school district to grant a student excused absences so he can attend an annual religious festival.

An attorney with the Justice Department's civil rights division and U.S. Attorney Joseph Van Bokkelen of Indiana's northern district argued in a friend-of-the-court brief that Tri-Creek School Corp.'s policy infringes on the right of Ruth Scheidt's son to worship.

Scheidt filed a lawsuit in U.S. District Court in Hammond in May seeking a preliminary injunction declaring the policy unconstitutional and ordering Lowell Middle School to excuse her son's absences.

Scheidt and her son are members of the United Church of God in Munster. The Christian-based faith does not celebrate Christmas or Easter, but instead observes a weeklong event called the Feast of the Tabernacle.

When her son missed five days of school to attend last year's event, which ran from Sept. 29 to Oct. 7, Tri-Creek refused to excuse the absences. Under Tri-Creek's policy, only illness, death of an immediate family member and certain court appearances are considered excused absences. The school does not accept planned absences, such as family vacations and trips, as excused absences. * * *

In a 17-page motion filed Wednesday, Van Bokkelen and Acting Assistant Attorney General Bradley J. Schlozman agreed with the ICLU that the policy violates the family's First and 14th Amendment rights by discriminating against the way it chooses to worship.

Van Bokkelen wrote that the school district further violated the family's rights by threatening to expel the student and file a charge of "educational neglect" against the mother. * * *

Indiana law does not specify whether children are to be excused for religious purposes, Neal said. The Indiana Department of Education holds firmly that it is not a reason to excuse students under Indiana law.

This sounded familiar, so I looked in the ILB archives. Here is an earlier story from the Munster (NW Indiana) Times from 11/21/2004 (it is still available online), and here is the ILB quote from that story.

Posted by Marcia Oddi on Monday, August 15, 2005
Posted to Indiana Law

Ind. Courts - Chief Justice Shepard named chair of National Court Reform organization

In a release today from the Court:

Williamsburg, VA (August 8, 2005) – Chief Justice of Indiana Randall T. Shepard has been named Chair of the Board of Directors of the National Center for State Courts (NCSC), succeeding Chief Justice of Wisconsin Shirley S. Abrahamson. At the same time, Shepard also was named president of the Conference of Chief Justices (CCJ), a national organization that represents the top judicial officers of the 50 states and U.S. territories, and of which the National Center serves as executive staff.

Both positions are one-year terms. The appointments were made during the National Center 's Board meeting and CCJ's annual meeting, July 31 – August 3 in Charleston, South Carolina.

The full press release may be found here.

Posted by Marcia Oddi on Monday, August 15, 2005
Posted to Indiana Courts

Ind. Law - Indianapolis firm, Hatchett & Hauck LLP , expands again

I've received the following announcement: At its one-year anniversary, Hatchett & Hauck LLP announces that it has grown into larger offices. The firm is now located at 111 Monument Circle, Suite 301, Indianapolis, 46204-5124. Phone and fax numbers and email addresses remain unchanged (Main phone 317-464-2620). Hatchett & Hauck LLP is an Indianapolis law firm focusing on environmental law issues.

Posted by Marcia Oddi on Monday, August 15, 2005
Posted to Indiana Law

Ind. Gov't. - In electronic world, BMV branches no longer needed everywhere

This editorial today in the Evansville Courier& Press begins:

At a public hearing Thursday in Newburgh on Indiana's plans to close the state auto license branch there, a member of the audience asked how many there use the mail or the Internet to purchase their license tags. Those in the audience laughed and shook their heads. "I think that's what we call proof in the pudding," said Don Mottley, the Boonville resident who asked the question.

Hold your pudding, Mr. Mottley. As we see it, it's proof that those who use such modern conveniences as the mail or the Internet to do business with Bureau of Motor Vehicles were not there. They have moved on to other things, having left behind the inconvenience of driving to the license branch and then waiting in line to purchase their tag. They probably didn't care about the hearing or about preserving an operation that in its present state will soon be obsolete.

Posted by Marcia Oddi on Monday, August 15, 2005
Posted to Indiana Government

Ind. Decisions - Couple must pay medical bills

Charles Wilson of the AP reports:

INDIANAPOLIS -- A couple whose daughter was delivered by emergency Caesarean section and kept in intensive care for 75 days despite their religious objections must pay the hospital bill, the Indiana Court of Appeals has ruled.

Dewayne and Maleta Schmidt face a bill of nearly $172,000 for 5-year-old Makalynn, along with a work-release sentence because of their reckless-homicide convictions in the death of their other daughter, Rhianna. * * *

Maleta Schmidt remained in intensive care for seven days and the baby in neonatal intensive care for 75 days, records show. Neither parent ever signed a consent form for any of the treatment.

The hospital did not charge the couple for the mother's care, but it did bill them $171,817 for Makalynn's delivery and stay and later went to court to collect when the couple refused to pay. A Johnson Superior Court judge ruled in favor of the hospital.

The Schmidts appealed, arguing that they were not obligated to pay because they had repeatedly told medical personnel about their religious objections and they would not pay for care.

But in a 12-page opinion issued Wednesday, the three-judge panel wrote that the couple's religious objections to medical treatment did not negate their parental duty regarding their child's health or their corresponding duty to pay for care.

Judge Margret G. Robb wrote that, "In matters involving the free exercise of religious beliefs, parents, while free to make martyrs of themselves, are not free under identical circumstances to make martyrs of their children."

Here is the Court of Appeals opinion, Schmidt v. Mutual Hospital Services (8/10/05).

Posted by Marcia Oddi on Monday, August 15, 2005
Posted to Ind. App.Ct. Decisions

Law - Illinois beefs up state authority over private adoption agencies

The Chicago Tribune reports this morning:

Gov. Rod Blagojevich signed legislation Sunday that strengthens state authority over private adoption agencies and prevents them from profiteering from placing babies with families. * * *

The act, in the works for more than a year, was designed to close loopholes involved in private adoptions. It provides a "bill of rights" for both biological and adoptive parents that requires agencies to disclose all policies and fees before adoption. As part of the act, the Illinois Department of Children and Family Services will establish a statewide adoption complaint registry and a toll-free number so the public can access adoption license violations.

The act also requires all private adoption agencies to become non-profit organizations within two years.

"It's about care and not cash," Blagojevich said. "It's supposed to be about love and what's in the best interest for the child."

Stories in the Indianapolis Star earlier this month dealt with "a licensed, Indianapolis-based child-placing agency" that allegedly "performed a flawed adoption home study for a New Jersey man who adopted twin girls in Indiana." Access a story here, headlined "State is probing adoption reviews: Company faces tougher scrutiny after officials find flaws in twins' case."

Posted by Marcia Oddi on Monday, August 15, 2005
Posted to General Law Related

Sunday, August 14, 2005

Law - Legal issues concerning e-mail

The Chicago Tribune today has a front-page story on the risks of using e-mail. The headline: "You've got mail trouble: Liabilities make quick, easy communication tool more dispensable." Some quotes:

Indispensable for uniting workplaces and private lives, e-mail has proven adept at bringing down highflying careers as well. Those billions of electronic messages lurking in cyberspace have provided the smoking gun in scandal after scandal.

Among top officials in government and business, balancing the benefits of e-mail with its potential pitfalls has become a difficult judgment call. With the number of messages skyrocketing, nearly every corporation and arm of government has imposed common-sense guidelines for e-mailing. Many use sophisticated software to actively monitor traffic for potential problems.

Nevertheless, some high-profile individuals have concluded that the risks of e-mail outweigh the benefits. Their decisions may hold lessons for less prominent members of society who currently e-mail, send instant messages and blog with abandon. And they point to a continuing erosion of privacy as digital communication advances.

As if to prove the Tribune's point about the dangers of e-mail in public life, another paper, the Louisville Courier Journal, has this story today about the on-going merit hiring investigation in Kentucky state government, headlined: "E-mails reveal early hiring concerns." The article begins:
FRANKFORT, Ky. -- Less than three months before the state hiring investigation began, Gov. Ernie Fletcher's deputy chief of staff and the transportation personnel director confided to each other in e-mails that laws may have been broken.

"Maybe somebody will get control of the Disciples before it is too late," Otis Reed, the personnel director, wrote in a Feb. 26 e-mail. "I don't know if they don't know the law or if they just don't care and that is the scary part."

Reed said later he was referring to Dan Druen, one of 12 officials -- known to some as the "disciples" -- who coordinate hiring across state government under Fletcher's personnel initiative.

Dick Murgatroyd, deputy chief of staff, replied: "They believe they are above it."

"I know you are right and sadly that comes back usually with a vengance (sic)," Reed responded. "I hope our Cabinet will come theough (sic) this in a positive light. There has been too much negative press in past administrations and I don't want that."

That e-mail exchange occurred over two days in February, and it is among hundreds of transportation e-mails obtained by The Courier-Journal under the Kentucky Open Records Act.

Posted by Marcia Oddi on Sunday, August 14, 2005
Posted to General Law Related

Ind. Gov't. - Kudos to Governor and to IDEM Commissioner

The Governor. The Indianapolis Star today, in the next to the last item in "Behind Closed Doors", has this:

When it comes to the governor's residence, it seems like Gov. Mitch Daniels just can't make everyone happy.

First, some Hoosiers criticized him when he decided not to make the Meridian Street mansion his primary home. Now, he's being criticized for letting others in it. Specifically, Planned Parenthood.

Thursday evening, the group that advocates for family planning, contraception and abortion rights held a thank-you party for volunteers at the residence. Per the governor's residence policies, nonprofits and charitable groups can use the residence -- deemed the "people's living room" -- for a nominal fee.

That didn't sit well with social conservatives, including Sen. Jeff Drozda, R-Westfield, who used to work for Indiana Right to Life. He held a news conference outside the residence, where protesters gathered, to declare that a group under investigation by the attorney general for not reporting underage child sex shouldn't be allowed in the residence.

Friday, Daniels defended Planned Parenthood's right to party in his house. In this country, he said, you're innocent until proven guilty, even if you might be under investigation. And, he said, "The residence belongs to the people on a neutral basis. We're not going to be involved in picking and choosing."

The IDEM Commissioner. I'd like to add a kudo for IDEM's Commissioner, Tom Easterly. For the first two years of IDEM's life, from 1986 to 1988, its then-Commissioner, Nancy Maloley, attended all the meetings of the various environmental boards - the Air Pollution Control Board, the Water Pollution Control Board, the Solid Waste Management Board. The Boards are where environmental rulemaking takes place, in a public process involving the environmental boards, IDEM staff, the public and the regulated community. During the 16 years after Nancy Maloley, IDEM commissioners have attended board meetings only rarely and, on the few occasions when they did attend, left before rulemaking began. Tom Easterly, to his credit, has attended every board meeting since his appointment, has participated when appropriate, and has been heard to say, "I don't understand why the earlier commissioners didn't."

Posted by Marcia Oddi on Sunday, August 14, 2005
Posted to Indiana Government

Ind. Courts - Court costs soar in 2005

The Fort Wayne Journal Gazette has a pair of stories today by reporters Niki Kelly and Sara Eaton on soaring court costs in Indiana.

The first story is headlined "Going to court can be costly: Some say increases ‘haphazard,’ but bigger budget always requested." A few quotes from the lengthy article:

INDIANAPOLIS – Every year, some segment of the judicial or law enforcement system comes to the Statehouse pleading for additional funding. But rather than using traditional tax dollars already shelled out by working Hoosiers, legislators tack fee after fee onto the system, creating a morass of court costs. * * *

“Somewhere along the line the court costs will be a barrier to ordinary people obtaining relief. I don’t know if we are there yet,” said Rep. Ralph Foley, R-Martinsville, chairman of the House Judiciary Committee.

“It’s not my favorite way of dealing with funding anything, but everyone wants extra money to do the assignment of today. Where does that extra money come from? Those that use the system.”

It’s hard to argue that logic. But in this litigious era it seems almost impossible that any citizen could go through life without having some contact in the judicial system: divorce; settling an estate; an adoption; getting a speeding ticket; a protective order; or suing a landlord.

“In the course of the session, I know the question was raised as to whether increased fees limit access to the courts. That was a consideration of the legislature,” said Clyde Compton, president of the Indiana State Bar Association. “One of the things that occurred as a result of that is the recommended judges’ pay raise was reduced by 30 percent. The judges didn’t get everything they asked for.” * * *

Fees and costs work somewhat differently in civil and criminal courts, although usually contain three possible layers.

When a case of any kind is filed in a civil court the filer is charged a fee. The majority of that fee consists of a base $100 but over the years legislators have added fees. For instance, to initiate divorce proceedings costs $130. The additional $30 encompasses a second layer of fees: a document storage fee, an automated record keeping fee, a public defense administration fee, a judicial insurance adjustment fee, a judicial salaries fee and a court administration fee.

And the cost could go even higher depending on a third layer of fees that are discretionary to each county or judge, such as a $20 alternative dispute resolution fee collected in Allen County that kicks the cost to $150.

On the criminal side, the costs are paid only after conviction. The base criminal costs are $120 but a second layer of mandatory fees makes it $156 for felonies and misdemeanors and $106 for infractions and ordinance violations.

There are about a dozen other possible fees that can be added by a judge in specific cases, such as a child abuse prevention fee, domestic violence prevention and treatment fee, a safe schools fee and highway work zone fee.

“There will come a time when someone will look at this laundry list of court fees and see that we have divided it into so many little cubby holes that just to do the accounting is a nightmare,” Rep. Foley said. “No wonder the court clerks need more money.”

Foley and others point out that Indiana’s filing fees are a small percentage of the cost of a whole case and give access to the courts for the life of a case. In other states, people must pay an initial filing fee and a small fee every time they file a document in a case.

The second story is headlined "State’s $70 small-claims fee could deter filing." Some quotes:
INDIANAPOLIS – The most dramatic increase in court fees, and the one that seems to ring an alarm bell, is in the small-claims division.

Known as a citizens’ court, this is where average Hoosiers come to settle smaller monetary disputes without an attorney.

In 2000, the cost to file a small-claims case was just $35, which can be recouped if a person wins the case.

But as of July, that filing fee has doubled to $70 and is among the highest in the nation, according to Tom Gordon, senior counsel for HALT, a consumer advocacy group based in Washington, D.C., that focuses on the consumption of legal services.

Most small-claims filing fees across the country are between $30 and $50 Gordon said. A few that were higher than Indiana’s $70 – as of a 2004 study done by the group – were Wisconsin, Illinois and Louisiana at $100. Illinois and several other states have an escalating fee depending on how much money people are seeking.

Posted by Marcia Oddi on Sunday, August 14, 2005
Posted to Indiana Courts

Ind. Gov't. - "Motor-vehicles commissioner won't back down "

Leslie Stedman Weidenbener of the Louisville Courier Journal has a good piece today on BMV Commissioner Joel Silverman that deserves to be read in full.

Posted by Marcia Oddi on Sunday, August 14, 2005
Posted to Indiana Government

Ind. Gov't. - PERF back in the news

The Fort Wayne Journal Gazette had this item yesterday in its "Cheers & Jeers" column:

JEERS to Indiana Public Employee Retirement Fund officials for approving a secret $212,000 settlement with a former investment officer they fired in 2003. More JEERS to the fund’s trustees for finally taking “public” action on the settlement in February in a way that still hid the payment. According to the Indianapolis Star, after state auditors noted that the trustees had failed to approve the settlement in a public meeting, the trustees in February acted to approve actions related to “any and all litigation, proceedings, claims and/or disputes.”

State lawmakers contributed to this culture of secrecy in 2004 by outrageously making secret the pension records of nearly 20,000 state employees – including their own.

The secret settlement was reported in an Indianapolis Star story by Michele McNeil last Friday, August 12. Some quotes:
The state's public pension fund paid its former chief investment officer $212,000 to leave in a secret settlement brokered two years ago that's only now become public.

Patricia J. Gerrick, who was hired in 2001 and left in 2003, was in charge of investing $10 billion in public money on behalf of the 250,000 members of the Public Employees' Retirement Fund.

The settlement is becoming public now because the State Board of Accounts earlier this year took issue with the secrecy surrounding the payout in an audit of the pension fund. The Indianapolis Star obtained a copy of the settlement after repeated requests under the state's public records law.

Auditors found that the fund violated state law by failing to ratify the settlement at a public meeting of the board of trustees. Although public officials can discuss personnel matters in private, state law calls for final decisions to be made at a public meeting. * * *

Gerrick was lured to Indiana's public sector from New York in 2001 with a contract unusual for state workers, promising at least $150,000 a year, relative job security and a lucrative severance package. The pension fund is a quasi-public agency that has more latitude in hiring and salaries than a traditional government agency.

Her departure in 2003 wasn't a smooth one. The fund was embroiled in a criminal investigation that started when state officials learned the fund had unknowingly hired a convicted identity thief for a top job. The scandals didn't involve Gerrick's department, which was credited with boosting investment returns during her tenure.

Former Executive Director Craig Hartzer, hired to reform the fund, started building his own team and forced many top officials out. On Oct. 16, 2003, according to a termination letter, he fired Gerrick.

Two weeks later, [Gerrick] filed a discrimination complaint with the federal Equal Employment Opportunity Commission. On Nov. 7, 2003, she agreed to withdraw her complaint and never seek a job at the fund again. In exchange, she resigned instead of being fired and was paid $212,000, according to the agreement. * * *

Gerrick, now the investment officer at North Carolina's public pension fund, didn't return calls for comment.

When auditors noted the law violation, the trustees approved the settlement in a manner that was no more enlightening for the public. At a February 2005 meeting, more than a year after the settlement was signed, the board approved a sweeping motion that ratified actions regarding "any and all litigation, proceedings, claims and/or disputes." * * *

But because the pension fund is a quasi-public agency that operates outside many of the rules and bureaucracy of state government, the settlement went largely unnoticed. The personnel department doesn't handle the fund's employees. The state auditor, for the most part, doesn't cut the fund's checks. And the board didn't approve the settlement, at the time, at a public meeting.

As for the General Assembly making their pension records secret in 2004, the ILB has had a number of items on this 2004 incident, beginning with this 3/11/04 entry ("Questions rasied about PERF privacty matter"), and ending with this 2/10/05 entry ("What is being done to resolve the 'PERF privacy'issue from last session?") that includes links to all the earlier entries on the matter. Plus this 3/15/05 entry ("Prerogatives of legislators and their staffs.")

Posted by Marcia Oddi on Sunday, August 14, 2005
Posted to Indiana Government

Saturday, August 13, 2005

Ind. Decisions - More on the Court of Appeals opinion Friday re BMV rules

I was surprised to discover that oral arguments in the case of Villegas et al v. Joel Silverman were held less than three weeks ago! As indicated here on the Court's calendar, the oral argument took place Wednesday, July 27, 2005. The opinion was issued Friday, August 12, 2005.

BTW, the Court's description of the issues, as posted on the calendar:

This case is a class action challenge to the non-promulgated policy created by the Indiana Bureau of Motor Vehicles concerning identification requirements.
turns out to have been a good indication of what issue the case would turn on, as opposed to the matters of standing and constitutionality also argued.

Posted by Marcia Oddi on Saturday, August 13, 2005
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - The DNR move to enforce fenced hunting ban, contrasted with the BMV ID "rule"

As reported in a number of state papers Thursday and Friday, Indiana's DNR chief announced Thursday that high-fenced shooting preserves would be banned. Here are some quotes from Niki Kelly's story in the Fort Wayne Journal Gazette:

INDIANAPOLIS – DNR Director Kyle Hupfer put the owners of the state’s hunting preserves on notice Thursday that killing animals – including white-tailed deer – behind tall fences is illegal and will be enforced starting next year.

He will wait until the conclusion of the 2006 legislative session, which usually occurs in mid-March, so that lawmakers have a chance to weigh in on the issue although he does not support them taking action.

“I hope that this represents the end of this debate and that there will be no future legislation proposed to legalize these practices,” Hupfer said.

“In order to preserve the hunting tradition, we must ensure that all hunting in Indiana is done in an ethical manner and in a way that conforms with long-standing fair chase ethics.”

In addition, Hupfer also signed an emergency rule into law Thursday clarifying that it is illegal to hunt exotic mammals, such as elk and zebra.

The announcement brought to an end months of preparation by the DNR on the subject, including five public hearings across the state. More than 600 people attended the forums and the DNR also received more than 1,300 e-mails on canned hunting.

After reading the Court of Appeals opinion Friday in Villegas et al v. Joel Silverman (8/12/05) (about which the Indianapolis Star reported "The court of appeals, in a unanimous decision, said simply holding a news conference and publishing the rules in July 2002 wasn't good enough. The BMV must follow the rule-making process, which allows for public input ..."), I sought out the details of how DNR Director Kyle J. Hupfer's actions have differed from those taken (or not taken) by the BMV head three years ago. The 8/11/05 DNR press release sets out the process Hupfer followed:
Our review was multi-faceted. First, input was sought from the public by conducting public forums and establishing a dedicated email address. Second, my legal staff reviewed all legal authority on point. Third, staff conducted a multi-state review of laws pertaining to high fence shooting. Finally, DNR’s biologists reviewed all articles, information and data they could find on the issue.

This public review included the holding of five public forums. Approximately 600 people attended the forums and at least 200 distinct individuals provided comments. The DNR also received over 1300 emails during the review process. I want to thank everyone who participated in this process. * * *

After taking the time as a new Administration to understand the entire statutory scheme in this area and after consultations with the Office of Attorney General, we believe that the existing Game Breeder’s Statute is clear, and always has been clear. A Game Breeder's License does not allow the hunting or purposeful killing of animals maintained under that license.

Exotic mammals are also being hunted behind high fence in Indiana. Confirmed animals that have been hunted in Indiana include elk, wild boar, zebra and red deer. We have heard rumors of additional exotic animals being hunted behind fence in Indiana, but none have been confirmed. It appears that these exotic hunting operations have felt a loophole in the law exists that allows this type of hunting. However, it appears clear that exotic mammals may only be propagated and hunted pursuant to the Shooting Preserve Statute. That statute requires the DNR to adopt rules specifying exotic mammals that can be hunted, and that the operator obtain a license from the DNR before operating an exotic hunting preserve. The DNR has never identified any exotic mammals to be hunted pursuant to the Shooting Preserve Statute.

Because of the potential of a legal misinterpretation of the statutory scheme surrounding the hunting of exotic mammals, I have today signed an emergency rule that closes all potential loopholes with respect to the hunting of exotic mammals. The DNR will immediately begin permanent rulemaking with the Natural Resources Commission on this issue.

The DNR will enforce the Game Breeder’s Statute and the prohibition on the hunting of exotic mammals. However, because of the prior inconsistent application and enforcement of the law, the DNR will not commence that enforcement until the end of the 2006 General Assembly. We believe this approach is fair and provides the opportunity for the legislature to exercise its rightful role in lawmaking. Additionally, the DNR does not intend to prosecute or seek to revoke the Game Breeder’s License of high fence operators because of prior violations.

The actions taken today and the future enforcement of the Game Breeder’s License restrictions ensure that the strong Hoosier hunting heritage is protected for generations to come. I hope that this represents the end of this debate and that there will be no future legislation proposed to legalize these practices. In order to preserve the hunting tradition, we must ensure that all hunting in Indiana is done in an ethical manner and in a way that conforms with long-standing fair chase ethics. [emphasis added]

I'm impressed; all the bases appear to have been carefully covered. The Fort Wayne Journal Gazette agrees, in an editorial today titled "Don't buck this ruling." Some quotes:
DNR Director Kyle Hupfer couldn’t have said it any more loudly or clearly Thursday. Unless the law is rewritten, Indiana won’t be home to farms where people can blast away at deer locked in pens. As for the General Assembly, it should do absolutely nothing on this issue during its 2006 session. There shouldn’t be any compromise.

Thursday’s announcement cleared up years of supposed ambiguity. High-fence deer operators who say they don’t understand Hupfer’s ruling are being petulant to the point of absurdity. And judging from Gov. Mitch Daniels’ statement that Hupfer ran an open and “properly deliberative process,” canned-hunt supporters shouldn’t harbor any belief Daniels is going to undermine Hupfer’s decision. * * *

Hupfer’s decision speaks to Indiana’s commitment to uphold the ethical standards of hunting. Now the General Assembly should do nothing that undercuts Hupfer, the “fair chase” ethic and Indiana’s standing among legitimate hunters.

Agency rulemaking is governed by IC 4-22-2. Normally, rulemaking can take 6 months to a year (except for the environmental boards, which have additional rulemaking requirements that add months more to their rule promulgations).

IC 4-22-2-37.1 allows for temporary emergency rulemakings for several agencies, including DNR [see (a)(2)]. As detailed in the press release, Hupner has used that section to immediately promulgate an emergency exotic mammal rule so that it will be in place while the permanent rulemaking is in process.

The BMV does not appear to have been given the legal authority under IC 4-22-2-37.1 to adopt an emergency rule. That means that to correct the deficiencies in its identification requirements that the Court of Appeals cited Friday, the BMV needs to begin a formal rulemaking right away, so that it can have a valid rule in place, possibly by the end of the year. Of course, the BMV might have started this rulemaking process any time within the past three years, particularly as the legality of its ID requirements were under question.

Posted by Marcia Oddi on Saturday, August 13, 2005
Posted to Administrative Law | Environment | Indiana Government

Ind. Law - Local zoning issues may become a federal case

Yesterday's South Bend Tribune had an interesting story by Jeff Parrott, headlined: "Legal fight looms in 'Worker' zoning flap: Catholic home will cite a new religious law if rejected by council." The story begins:

SOUTH BEND -- It was looking increasingly likely Thursday that the city will end up in court over its intent to stop a group from operating three homeless shelters in a near west side neighborhood.

City attorney Chuck Leone said the city is not afraid to enforce its residential zoning laws against Catholic Worker of Michiana, which claims its shelters in the 1100 block of West Washington Street should be exempted by a federal law protecting the expression of religious beliefs.

The block is zoned for single-family residential, meaning no more than two unrelated people can legally live in a dwelling. The city has notified Catholic Worker that it is violating the zoning code and asked it to move to another location. The group has refused.

"We're taking the position that zoning laws dealing with public health and safety issues are applicable to everyone in the city and it's our obligation to enforce those," city attorney Chuck Leone said.

Catholic Worker, in turn, is prepared to file a lawsuit against the city invoking the Religious Land Use and Institutionalized Persons Act [RLUIPA] of 2000, which bars a government from implementing a land use regulation in a manner that imposes a "substantial burden" on one's "religious exercise" -- unless government can prove a compelling interest in doing so, said Kent Hull, the group's attorney and recently appointed board member.

For more on the RLUIPA, see this ILB entry from 7/7/04 (2nd item) about a similar case in Louisville. And see this 2/23/05 ILB entry titled "In landmarking, Daley believes nothing's sacred," which includes in the last paragraph links to a number of valuable ILB entries from 2003 on the RLUIPA.

[Update 8/14/05] See this excellent column today by the South Bend Tribune's Nancy J. Sulok. It begins:

I don't blame the West Washington/Colfax Historic District residents for becoming emotional about zoning violations in their neighborhood. It's a neighborhood that remains in transition.

A roughly one-mile stretch of Washington Street, from downtown to Walnut Street, has seen its up and downs. It once was the home of South Bend's wealthiest citizen-pioneers, including the Studebakers and the Olivers. Their magnificent mansions remain, although they no longer are used as homes.

In the middle of the 20th century, the area began to change to one of the worst parts of the city. The area around Washington and Walnut streets became known as The Block. It was notorious for gambling, boozing, fights and assorted crimes, including homicides.

By the end of the century, the pendulum swung again. The Block was demolished, and people took an interest in restoring the area to its former splendor. Washington Street, Colfax Avenue and their intersecting streets are filled with lovely old houses, many of which have been restored to their former beauty.

At the same time, the South Bend Heritage Foundation and other developers have invested in new housing to complement the old. Residents have put in a lot of effort to maintain and sustain the single-family zoning aimed at stabilizing the neighborhood.

That is why they are so distressed by the three houses in the 1100 block of West Washington that are being used by the Catholic Worker of Michiana. Those houses, plus a fourth facility housed in a former rectory at 1102 Thomas St., threaten to undermine everything they have been working for.

The issue is zoning.

Posted by Marcia Oddi on Saturday, August 13, 2005
Posted to Indiana Law

Ind. Fed. Court - U.S. District Judge Richard Young would open portions of sealed plea agreements

"Judge striving for more openness" is the headline to a story today by Maureen Hayden of the Evansville Courier& Press. Some quotes:

In an effort to keep court proceedings "as open as they can be" to the media and public, U.S. District Judge Richard Young has approved a plan that would open portions of sealed plea agreements filed by federal prosecutors.

Under the plan, the media and the public would have access to information about the existence of plea arrangements reached between prosecutors and defendants, while the government would continue to keep some information in the agreements temporarily sealed from public view.

The U.S. attorney's office would also be required to file a public notice of its motions to seal plea agreements, which would allow the media and public an opportunity to enter any objections. In addition, hearings on sealed plea agreements, which had been closed to the public and the media, will now be open in part.

What will remained closed and sealed are details of plea agreements that may reveal confidential or sensitive information such as the names of confidential informants, cooperating witnesses or details of ongoing investigations.

The story continues by explaining that:
The plan approved by Young was the result of negotiations between the Courier & Press and the U.S. attorney.

In late July, the newspaper moved to intervene in several federal cases in which defendants had reached sealed plea agreements with prosecutors. Courier & Press attorney Dirck Stahl argued that the First Amendment gave the press and the public a presumed right of access to court proceedings and documents.

That right has generally been upheld by the courts, but with conditions. That "presumed right" can be overcome when prosecutors show a "compelling interest" that the court proceeding or document should be kept private.

In a past hearing on the matter, the U.S. Attorney's office argued that the government's right to protect sensitive information trumps - at least temporarily - the right to know what's occurring in a court of law.

In court Friday, Young said there may be other compelling interests as well that may arise in sealed plea agreements, including the identity of victims of child abuse.

Stahl said the agreement reached between the newspaper and federal prosecutors was intended to "strike a balance between First Amendment rights and protecting other interests."

Young is expected to sign an order that outlines how sealed plea agreements will be handled in his court. "We want our courts to be as open as they can be," said Young. "That's certainly the rule, and certainly sometimes there are exceptions."

Posted by Marcia Oddi on Saturday, August 13, 2005
Posted to Ind Fed D.Ct. Decisions

Friday, August 12, 2005

Environment - Several interesting stories today

Two very interesting stories today, both long, both from the NY Times. (Remember that the NYT stories are only free available for a week.)

This story, by NYT environmental writer Felicity Barringer, is headlined "Growth Stirs a Battle to Draw More Water From the Great Lakes." It begins:

WAUKESHA, Wis. - Time was when Waukesha's mineral-rich water was coveted by Milwaukeeans and Chicagoans, who scorned the Lake Michigan water lapping at their shores. In 1892, one speculator even tried to pipe the city's water to Chicago for the coming World's Columbia Exposition, until aroused Waukeshans trained pistols, pitchforks and fire hoses on the pipe layers, who retreated.

What a difference a century makes. Waukesha has sucked so much water from its deep aquifer that it is now looking to the vast blue expanse of Lake Michigan, just as Chicagoans once eyed its water.

But the authorities who control some of the largest bodies of fresh water in the world are not sure that any of it should go to communities like Waukesha, which is 15 miles from the lake's shore but outside of its watershed.

Their fear is that without strict rules on who gets Great Lakes water and who does not, water-starved western cities will eventually knock at the door.

"Today the economics are not there to say we're going to take all the water in the Great Lakes and ship it to Phoenix and Vegas," said Todd Ambs, the water division director of the Wisconsin Department of Natural Resources. "But water's not getting cheaper. Twenty-five, 30, 40 years from now, the economics are going to be different. We've got to have a system in place to deal with that."

Fights over who owns and who deserves water have long been a part of life in arid states like California and Nevada. But as the spread of exurbia has more than consumed the savings of a generation's worth of technological improvements like low-flush toilets, even places not perennially in danger of running dry have become jealous of their water.

Akron, Ohio, had to ask for Great Lakes water in the late 1990's. It received permission, but Lowell, Ind., was turned down.

And Michigan has told a Nestlé subsidiary that if it wants to increase production of its Ice Mountain bottled water in Mecosta Township, Mich., all of the additional water pumped out of the ground must be "delivered and sold within the Great Lakes basin." The company is fighting the requirement in federal court.

Don't miss this great graphic of water issues facing the Great Lakes basin.

A second NYT story, about landfills, is headlined "Rumors of a Shortage of Dump Space Were Greatly Exaggerated." Some quotes:

Workers at a landfill in Orange County, Calif. - as if tamping down the contents of a wastebasket - regularly pile one million cubic yards of dirt atop a football field-size section of the giant dump. Six months later, the workers scrape the dirt aside and the dump's surface has fallen 30 to 40 feet, making space for yet more trash.

"It's just amazing," said Mike Giancola, deputy director of the county's waste agency.

Orange County's method is part of a remarkable productivity story playing out in the trash business, quietly saving consumers, businesses and municipalities billions of dollars a year. It is an unlikely industry for such a leap in efficiency.

Simply put, operators of garbage dumps are stuffing more waste than anyone expected into the giant plastic-lined holes, keeping disposal prices down and making the construction of new landfills largely unnecessary. * * *

The productivity leap is the second major economic surprise from the trash business in the last 20 years. First, it became clear in the early 1990's that there was a glut of disposal space, not the widely believed shortage that had drawn headlines in the 1980's. Although many town dumps had closed, they were replaced by fewer, but huge, regional ones. That sent dumping prices plunging in many areas in the early 1990's and led to a long slump in the waste industry.

Since then, the industry and its followers have been relying on time - about 330 million tons of trash went into landfills in the United States last year alone, according to Solid Waste Digest, a trade publication - to fill up some of those holes, erase the glut and send disposal prices skyward again. Instead, dump capacity has kept growing, and rapidly, even as only a few new dumps were built.

How could that be? Waste companies and municipalities have fit much bigger dumps than originally permitted onto existing acreage, piling trash deeper and steeper, and vastly expanding permitted capacity. They are burying trash more tightly, so that each ton takes up less space, increasingly using giant 59-ton compacting machines guided by global positioning systems that show the operator when he has rolled over a section of the dump enough times. They cover trash at the end of the day, to keep it from blowing away, with tarps or foam or lawn clippings instead of the thick layers of soil that formerly ate up dump capacity.

Some operators are blowing water and air into landfills to hasten rotting and thus the shrinkage of buried garbage piles, creating more capacity.

Each practice is fairly prosaic, and many operators have yet to adopt the improved methods, but taken together the waste industry is in the early stages of the kind of increase in efficiency more typically seen in technologies like computer chips and turbines that generate electricity.

There is much more to this story. And see this graphic illustrating "the net increase in capacity for the combined dump sites of the nation's three largest waste haulers."

Posted by Marcia Oddi on Friday, August 12, 2005
Posted to Environment

Ind. Decisions - Transfer list for week ending August 12, 2005

Here is the Indiana Supreme Court's transfer list for the week ending August 12, 2005.

For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column

Posted by Marcia Oddi on Friday, August 12, 2005
Posted to Indiana Transfer Lists

Ind. Decisions - More on Court throwing out BMV identification rules

Well, I've been checking to see if any of the local news services have picked up this important story yet, reported here on the ILB at 10:45 a.m. (scroll down two), but so far, no. I will post their reports here, when I locate them.

[Update: 5:30 pm] Here is a just posted report by the Indianapolis Star's Michele McNeil headlined "Court throws out BMV's strict ID rules." Some quotes:

The Indiana Court of Appeals today threw out the strict identification requirements for obtaining a driver's license or state ID card, ruling that the Bureau of Motor Vehicles didn't follow the law in creating the new standards.

But those who go to a license branch in the coming days won't notice a difference.

BMV spokesman Greg Cook said his agency is reviewing the decision, but that the rules will remain in effect until further notice. The agency could decide to appeal the decision to the Indiana Supreme Court.

Interesting approach, as the court's ruling means these are not properly promulgated "rules" and thus have never been in effect, legally. More:
The court of appeals, in a unanimous decision, said simply holding a news conference and publishing the rules in July 2002 wasn't good enough. The BMV must follow the rule-making process, which allows for public input, before making sweeping changes in how Hoosiers get their driver's licenses, permits and identification cards, the judges wrote. * * *

[T]he judges said the BMV must follow the rule-making procedure, which requires that proposals be published, and public comment be sought. That's what advocates for the Hispanic community, particularly, urged the BMV to do back in 2002. Even Attorney General Steve Carter, who is now defending the BMV on behalf of the state, urged the agency three years ago to adopt formal rules.

[Update 8/13/05] Mike Smith of the AP has this story today - the Louisville Courier Journal appears to have the complete version. it concludes:
Bureau spokesman Greg Cook said the agency had no comment on yesterday's ruling because it involved pending litigation. He said current requirements would remain in place during branch operations today.

Fran Quigley, executive director of the Indiana Civil Liberties Union, said he was pleased with the ruling, even though the court did not address the constitutional claims. "We are obviously very pleased by the clear and strong decision that the (bureau) needs to follow appropriate rule-making procedures," he said.

Posted by Marcia Oddi on Friday, August 12, 2005
Posted to Indiana Decisions

Ind. Courts - Supreme Court receives $1 million technology grant

In a press release just issued, the Supreme Count announces:

INDIANAPOLIS – The federal Motor Carrier Safety Administration has awarded a $1 million grant to the Indiana Supreme Court's Judicial Technology and Automation Committee (JTAC) to help courts and clerks install systems to allow quick transfer of conviction information to the state Bureau of Motor Vehicles (BMV).

“This grant will allow counties to send data electronically instead of by fax and mail, creating a system that is faster and more efficient,” said Chief Justice Randall Shepard. “This partnership between the courts and BMV will make Indiana 's roadways safer by providing immediate notification of serious convictions of commercial drivers.”

New federal rules require serious traffic convictions of persons holding Commercial Drivers Licenses to be sent to the BMV within 10 days of the conviction. If Indiana does not comply, the state could lose more than $30 million in federal highway funds.

Currently, such conviction data is sent manually for the most part, placing Indiana in jeopardy of failing to meet the new reporting requirements. Less than twenty-five percent of conviction information is sent electronically. The Indiana Supreme Court, through its Judicial Technology and Automation Committee, and the BMV are partnering to offer courts and clerks technology options for sending the data electronically, which would assure timely transmission and compliance with the law.

These new tools are part of the Supreme Court's initiative to develop and deploy a 21 st Century Case Management System (CMS) that will connect courts in all 92 Indiana counties with each other and appropriate state agencies, such as the BMV, State Police and Family and Social Services Administration. Until the CMS development and deployment is complete, JTAC will work with individual courts and clerks to develop solutions for meeting the federal notification rules.

Work on this project has already begun, and JTAC has contacted circuit court clerks as well as city and town court clerks throughout Indiana to determine how each one presently transmits information to the BMV. Preliminary plans call for two alternate approaches so local courts can choose the best option depending on the technology and resources available.

“Many clerks have shared valuable information with JTAC staff during this review process which has aided system developers, and we appreciate their cooperation,” said Chief Justice Shepard. “Ultimately, this challenging project will go a long way to improve Indiana highway safety and maintain Indiana federal highway funds.”

See also this 3/24/05 ILB entry ("Major Court software project on hold"), and this one from 3/8/05 ("Plan to link 400 courts hits wall"). also, from 3/22/05 ("What are the funding details of the state-wide case tracking system?")

Posted by Marcia Oddi on Friday, August 12, 2005
Posted to Indiana Courts

Ind. Decisions - Court holds BMV ID rules invalid

Villegas et al v. Joel Silverman (8/12/05)

Vaidlik, Judge

Case Summary. This is a class action against the Commissioner of the Indiana Bureau of Motor Vehicles brought by three illegal aliens (collectively, “the plaintiffs”) who are unable to obtain State of Indiana driver licenses and/or identification cards from the Bureau of Motor Vehicles (“BMV”) because of new identification requirements, which were enacted in 2002 without promulgation.

The trial court granted summary judgment in favor of the BMV. Specifically, the trial court found that the plaintiffs lacked standing, that it did not have the power to review the BMV’s identification requirements, and that there was no merit to the plaintiffs’ constitutional challenge to the requirements.

We conclude that the plaintiffs have standing to challenge the new identification requirements. In addition, we conclude that the identification requirements constitute an administrative rule, which was not promulgated pursuant to the Indiana Administrative Rules and Procedures Act (“ARPA”), Indiana Code § 4-22-2 et seq. Because the requirements were not promulgated in accordance with the ARPA, they are void and without effect. We therefore reverse the trial court. [emphasis added]

Beginning on p. 16, the court discusses whether the BMV's new identification requirements constitute a "rule" within the meaning of IC 4-22-2-3(b):

The identification requirements here indeed constitute a rule. They are agency statements of general applicability that are designed to have the effect of law and implement the BMV’s policy of tightening the requirements to obtain new issuances of Indiana driver licenses, permits, and identification cards. The requirements are designed to have the effect of law because if an applicant does not produce the necessary documentation, then he or she cannot obtain a driver license, permit, or identification card. The requirements apply prospectively to all applicants seeking new issuances of driver licenses, permits, and identification cards as of a certain date. In fact, the record shows that an applicant who was able to obtain a driver license before July 15, 2002, was not able to obtain a license once the new identification requirements went into effect. Additionally, the requirements implement the BMV’s policy of trying to prevent identity fraud.

The new identification requirements do not relate primarily to the BMV’s internal policies, procedures, or organization. The primary impact of the identification requirements is external, and it is the primary impact that is paramount. * * * [H]ere it is clear that the identification requirements primarily impact applicants seeking new issuances of driver licenses, permits, and identification cards because it sets forth what is essential for them to obtain such cards.

We finally note the trial court’s determination that even if it were to invalidate the identification requirements, the result would be the same. The trial court reasoned that Indiana Code § 9-24-11-2 directs the BMV to issue licenses in a manner the Bureau considers necessary and prudent and that such prudence is incapable of judicial review. Thus, if the rule were improperly promulgated, then there would be no harm because the courts could not review the rule the Bureau enacted anyway. We do not agree for two reasons. First, the rules implemented by the BMV are always judicially reviewable for constitutional implications.[15] Second, the ARPA requires rules to be adopted in accordance with the requirements of Indiana Code chapter 4-22-2. See Ind. Code § 9-15-2-1(3). These requirements dictate, among other things, public input into any proposed rule changes. The duty of the BMV to issue licenses in a manner that it deems prudent does not supercede the mandate to allow the public to participate in the rule-making process.

We hold that the new identification requirements are a rule, and because they were not promulgated in accordance with the ARPA, they are void and without effect. See Indiana-Kentucky Elec. Corp., 820 N.E.2d at 781; Blinzinger, 466 N.E.2d at 1375. The trial court erred by entering summary judgment in favor of the BMV. We therefore remand this case with instructions for the trial court to enter summary judgment in favor of the plaintiffs.

Reversed and remanded with instructions.

MAY, J., and BARNES, J., concur.
_____

[15] The plaintiffs argue that even if the BMV had properly promulgated the rule, it would nevertheless be invalid because it exceeds statutory authority. The plaintiffs—citing various statutory citations—assert that no statute in Title 9 requires applicants to present either a United States birth certificate or documentation of the applicant’s immigration status; therefore, the BMV’s rule cannot require such documentation. Because the BMV did not properly promulgate the rule, we do not reach this issue.

In addition, the plaintiffs argue that the new identification requirements violate the Due Process Clause, the Equal Protection Clause, and the Supremacy Clause of the United States Constitution. Because the requirements are void and without effect, we do not address these constitutional arguments. To do so would be to render an advisory opinion. We have no way of knowing whether the BMV in the future will promulgate the same identification requirements or different ones.

Posted by Marcia Oddi on Friday, August 12, 2005
Posted to Administrative Law | Ind. App.Ct. Decisions

Ind. Courts - Governor appoints LaPorte Superior Court Judge

From a press release yesterday:

INDIANAPOLIS (August 11, 2005) – Governor Mitch Daniels announced today the appointment of Kathleen B. Lang as judge of LaPorte Superior Court #1. She succeeds Judge Walter Chapala who is resigning effective September 1st.

Lang has served as Probate Commissioner and Magistrate for the LaPorte Circuit Court since 2003. Prior to that role, Lang was an experienced prosecutor, having served on two separate occasions in the Office of the Cook County State’s Attorney, where she handled cases before the Illinois Appellate Court, the Illinois Supreme Court and the U.S. Supreme Court. She has also served as a deputy prosecuting attorney in the LaPorte County Prosecutor’s Office and has worked in private practice in both Chicago and LaPorte. * * *

“I’m honored to succeed Judge Chapala,” said Lang. “I am grateful for this opportunity to serve the people of Michigan City and LaPorte County. I believe my experience as a Probate Commissioner and Magistrate has helped prepare me to take on this challenge.”

And a release from July 20, 2005 reports:
INDIANAPOLIS (July 20, 2005) – Governor Mitch Daniels announced today the appointment of LaFontaine native Christopher Goff as Wabash Superior Court Judge. He succeeds Judge Michael Sposeep who resigned earlier this month.

In addition to his private practice as a partner at Mills, Northrop & Goff, where he focused on criminal defense and domestic relations, he has also served as Wabash Circuit Court IV-D Commissioner and as a public defender. He earned his undergraduate degree from Ball State University and his law degree from Indiana University School of Law, Bloomington.

Goff has served as president of the Huntington County Police Merit Board and has been active in the Masonic Lodge and Kiwanis. He formerly served as chair of the Board of Elders at Northview Church of Christ. In 1999, he was awarded the Huntington County Leadership Academy’s Distinguished Alumni Award for his work to help establish the Court Appointed Special Advocate (CASA) Program.

Posted by Marcia Oddi on Friday, August 12, 2005
Posted to Indiana Courts

Thursday, August 11, 2005

Law - NBC's "The Law Firm" cancelled

This from Charlie McCollum on TV:

If you go looking for the next episode of NBC's "The Law Firm'' Thursday night, you won't find it. The network has abruptly yanked the reality series from David E. Kelley ("Boston Legal'') off the air after just two installments that almost no one watched. In fact, last Thursday's ratings were so bad that NBC finished fifth among the networks for the night.

If you're one of the few "fans'' of the show, you will be able to find the remaining episodes on Bravo, NBC's sister cable channel, although no firm schedule has been set.

Well, I liked it.

[More] Ah, the wonders of the Internet. Here is the Bravo schedule.

Best headline: "NBC Recuses 'The Law Firm' After Two Weeks"

Posted by Marcia Oddi on Thursday, August 11, 2005
Posted to General Law Related

Ind. Gov't. - Delaware County records available online

A story today in the Muncie Star-Press by Keith Roysdon reports:

MUNCIE - Mary Lou Gentis gestured toward rows of bound county records on a shelf at the Muncie Public Library's Local History and Genealogy Center.

"These draw attention," Gentis said.

The books are labeled, in stark capital letters, "INSANE RECORD."

The books - bound collections of Delaware County court mental health proceedings prior to 1927 - are vivid reminders of a less politically correct time, before court cases for people treated for mental illness were "mainstreamed" and filed along with other court proceedings.

The records are among millions of pages of early Delaware County court records that are, slowly and painstakingly, being digitally recorded and offered for public inspection.

The "Insane Record" volumes are on shelves at the downtown history center, along with a diverse collection of tax records, probate proceedings and other documents.

"We have records of the county board of commissioners paying for wolf scalps," Gentis said. "It gives you an idea of what the county was like at the time."

The court records have made their way to the library's shelves through various routes.

Delaware County Clerk Karen Wenger made an agreement with the library several years ago to provide old county records for digitizing and posting on the library's Internet site, www.munpl.org

Other records are among those saved by historian Althea Stoeckle, who rescued them from the former county courthouse as it was being razed in the 1960s.

Here, from the Delaware County Court Database, is a description of that database's scope:
This database contains indexing and images of the Delaware County Civil and Criminal court cases. The cases date back to the beginning of Delaware County, 1827 and up to the 1950s. The criminal cases are complete; the civil cases are in progress. As of April, 2005 we have entered civil cases up to 1882. The database is a work in progress, with cases added daily.

Posted by Marcia Oddi on Thursday, August 11, 2005
Posted to Indiana Government

Ind. Law - Reports of yesterday's hearing on eminent domain

The legislaive Interim Study Committee on Eminent Domain met yesterday for the first time.

Lesley Stedman Weidenbener reports in the Louisville Courier Journal. Some quotes:

Mishawaka Mayor Jeff Rea said his community was able to purchase 60 properties to build a plant to make the Hummer H2, creating 2,000 jobs, without resorting to eminent domain.

"Not one single property went to court," he said.

But after questions from lawmakers, Rea acknowledged that without the authority to use eminent domain to take the land, the sales might not have come so easily.

"It's an economic-development tool," he said.

That's essentially the crux of the eminent domain controversy.

Local governments say they need to be able to obtain property from people who won't voluntarily sell to eliminate blight and create new jobs. But both "blight" and "economic development" have traditionally been ill-defined and broadly interpreted. * * *

Steven Anderson, coordinator of the Institute for Justice's Castle Coalition, a national group seeking restrictions on eminent domain, said local officials in Indiana are becoming increasingly aggressive in their efforts to forcibly transfer property from one owner to another.

"The power of eminent domain is awesome," Anderson told lawmakers. "This power must be used sparingly."

The Indiana Constitution -- unlike the federal and most other state constitutions -- doesn't restrict eminent domain only to projects that constitute a "public use," although state courts have added that requirement, Anderson said.

And the Indiana law that defines what kind of property can be taken is relatively vague, he said.

The Supreme Court ruling means that "every home, every church, every small business is now up for grabs to the private bidder," Anderson said.

He urged lawmakers to amend state law to allow eminent domain only when a property is truly unfit for living or other use. He said the transfer of land from one private owner to another should be prohibited.

And he said the law should require a local government to show a court that its project should be considered a "public use" worthy of employing eminent domain.

But Sen. Tim Lanane, D-Anderson, said lawmakers should consider instead crafting legislation that requires eminent domain only to be a last resort. He said he could see situations -- especially involving large economic-development projects -- that might require taking private land.

Matt Greller, the executive director of the Association of Cities and Towns, said mayors already view eminent domain as a last resort. The association is fighting to keep the power, which it calls a "critical tool" for economic development.

The committee plans to meet again in September to discuss possible changes in state law. Wolkins said the committee could vote on recommendations at a meeting in October.

Niki Kelly of the Fort Wayne Journal Gazette reports:
Indiana’s legislative study committee was established even before the high court’s ruling. Rep. David Wolkins, R-Winona Lake, filed a bill in 2004 and 2005 to prohibit using eminent domain to obtain land for use by a private entity or developer. * * *

Mike Sylvester, of Fort Wayne, testified that the city misused eminent domain in the Grand Wayne Center expansion project by spending $1 million to seize the Belmont Liquors property at Harrison Street and Jefferson Boulevard to be used for a new hotel.

Now the city isn’t even sure they want that land anymore, he said, and is looking at using the site of a popular downtown diner instead.

“If that isn’t abuse of power I don’t know what is,” said Sylvester, also chairman of the Libertarian Party of Allen County.

The Indiana Association of Cities and Towns defended the practice, saying eminent domain is a tool they need to effectively bring economic development to their jurisdictions.

Several people testified that cities use eminent domain as a threat to get owners to agree to a lower price. But when Mishawaka Mayor Jeff Rea objected to the characterization – instead saying officials merely explain the powers of eminent domain – most members of the panel and the audience laughed heartily. * * *

Committee members seemed torn between protecting private property rights and encouraging economic development that could create jobs. They seemed less supportive of using eminent domain for smaller retail and housing projects that simply increases the tax base.

A complete prohibition of eminent domain seems unlikely, but many of the lawmakers gravitated toward changing Indiana’s definition of blight – or areas in need of redevelopment – that must be found by city officials in order to use eminent domain.

State law outlines eight criteria to be classified as blighted, but a property must meet only one of the criteria, compared with other states that require four or five factors to be met. The criteria themselves are also somewhat vague, such as age and cessation of growth.

Shyl Karshner of the Munster (NW Indiana) Times reports here:
Hammond officials are paying close attention to eminent domain law.

Cabela's Inc., a giant retailer of outdoor sporting goods, has been interested for months in the Woodmar Country Club property and has steadily upped its offers for the land from $7.5 million late last year to a pending offer of $14 million.

Mayor Thomas McDermott Jr. has avoided saying he intends to condemn the property under eminent domain law if the club members refuse to sell. However, his administration has hired a consultant at $25,000 to draft an "integrated economic development plan" for the property -- a plan specifically mentioned by the high court as necessary.

Michele McNeil of the Indianapolis Star writes:
In Indianapolis, eminent domain was used to transform a crime-plagued area into Fall Creek Place, the highly successful neighborhood revitalization project on the Near Northside.

Eminent domain also may be used to make way for a new stadium for the Indianapolis Colts.

John Klipsch, the stadium building authority's executive director, said eminent domain is a possibility for three of the last six properties the authority does not own on the site. City officials negotiated a price for two and the authority is working with the U.S. Postal Service on another one.

Negotiations continue with the private owners of the last three properties, and the authority has sent letters to start the eminent domain process, which can take 60 to 90 days, Klipsch said.

Rick Hurst, and his company that sells dry beans to grocery stores, is one of the last three holdouts in the path of the new stadium. His situation illustrates the problem facing Hoosier lawmakers -- how to make sure governments adequately compensate residents who lose their property.

Hurst told the committee the cost of relocating his business far exceeds the appraised value of his company, N.K. Hurst Co. There's the cost -- and difficulty -- of finding another facility that can handle cleaning and packaging millions of beans. And there's the cost of moving his employees or finding new workers.

There's an emotional cost as well. In the 1970s, when businesses and residents were fleeing downtown for the suburbs, he said: "We stayed."

Note: After watching the Bureau of Motor Vehicles hearing Tuesday via the General Assembly's website, I was very sorry the same couldn't be done for the eminent domain hearing. The availability of these hearings online would be an incredible service to the citizens of the state, most of whom cannot take off time from work to travel to Indianapolis. Hopefully, the BMV hearing will be archived and available for on-demand viewing online. And if the Eminent Domain hearing was recorded, and I assume it was, perhaps it could be made available as a podcast? Plus the handouts - how hard would it be to post the handouts from these two meetings online, at the legislative committee's sites?

Posted by Marcia Oddi on Thursday, August 11, 2005
Posted to Indiana Law

Law - Court of Appeals decision stuns the organic farming industry

The Chicago Tribune reports today (in a lengthy story that begins):

HARTFORD, Maine -- Arthur Harvey, an organic blueberry farmer, lives in a 168-year-old house with an outhouse out back and a solar panel on the roof, which he uses to power his computer.

He doesn't care for pesticides or herbicides, believing many of them aren't necessary and possibly are dangerous, and he decries modern plumbing because it fails to recycle the nutrients in human waste, which when composted properly can be turned into fertilizer.

Despite his off-the-grid lifestyle, Harvey has used the most conventional of means to turn the nation's booming organic industry on its head.

Frustrated by the federal rules that govern what foods can be labeled organic, Harvey, representing himself, sued the U.S. Department of Agriculture in 2002. He argued that the regulations were far more lax than the original organic legislation intended. While his lawsuit was tossed out of federal district court, Harvey won several crucial points on appeal earlier this year.

The appellate court agreed with Harvey that dairy farmers must feed their cows 100 percent organic feed in the transition year before their milk can be sold as organic, rather than 80 percent organic, 20 percent conventional feed.

And, in a decision that prompted doomsday warnings from some food companies, the court clamped down on manufacturers' use of non-organic agricultural products like oils and spices, and eliminated use of such synthetic substances as vitamins and bleach in organic processed food products.

As a result, some of the nation's largest organic companies may be required to reformulate their products or stop labeling them as organic, all thanks to Harvey.

What is this case? Harvey v. Veneman (CA 1st Cir., 1/26/05). This story in a Rodale Institute publication gives comprehensive coverage. See particularly the excellent timeline. (Be sure to catch the part about the revised footnote.)

Here is the Harvey decision via Findlaw.com. (I don't know why the last part is blue; probably a html error.) Here is the earlier opinion from the District Court of Maine.

[More] Well, here is the CA opinion as posted on the 1st Circuit website, in pdf format without the blue.

Posted by Marcia Oddi on Thursday, August 11, 2005
Posted to General Law Related

Wednesday, August 10, 2005

Law - A Kentucky Law Blog

Here is a blog in a sister state called the Kentucky Law Blog. It appears to have been around since at least February, 2005. A couple recent entries caught my eye:

Louisville Lawyer May Not Have Been a Lawyer At All is the heading to KLB entry- posted August 9th. Some quotes from the Louisville Courier Journal story referenced:

Christopher Watkins' resume was impressive: A 43-year-old Princeton University graduate, attorney, law instructor and an assistant district attorney in North Carolina, trying more than 750 cases.

But it was a lie, according to prosecutors in Jefferson County, who have charged Watkins with felony theft and unauthorized practice of law, most recently with the firm of Rawlings & Associates in downtown Louisville.

Prosecutors said Watkins was hired three times in the last seven years by local firms that somehow missed the fact that he was not licensed. * * *

Officials at Princeton, where Watkins said he had been class president and on the varsity tennis team, had no record of him attending. Nor did he graduate from the University of North Carolina law school, as his resume claimed; the school's office of the registrar said it has no record of it.

Court records also show he was not on the governor's crime commission in North Carolina or an assistant district attorney in that state, as his resume also claimed.

Prosecutor Elizabeth Downey said her office is seeking Kentuckians who may have been clients of Watkins since 1998. "I don't believe any of his clients are aware that he was not an attorney," she said. * * *

The length of time Watkins is accused of posing as an attorney -- and the corresponding felony charge -- are extremely rare, Downey said. When asked how someone could act as an attorney for so long without credentials, she said, "My guess is no one checked."

Downey said the Rawlings group could be open to malpractice lawsuits because of Watkins' impersonation.

The Silence of the Blawg - Day 60 is the heading to this entry that I quote in full:

Sixty days have passed and not a peep, posting, or postscript from http://www.LegalEthicsBlog.com. This was a useful and professional site dedicated to legal ethics, but the [Kentucky Attorneys'] advertising commission considered each "posting" an advertisement and expected to receive $50 per post. June 7, 2005 was the last day of any posting by the blawger at that site (not counting the June 10 update). Since then the silence has been deafening.

Posted by Marcia Oddi on Wednesday, August 10, 2005
Posted to General Law Related

Law - Cost of State Judicial Races Stirs Reformers

A lengthy story Sunday from the Kansas City InfoZine reports:

In the wake of last year's costliest and possibly nastiest elections ever for state Supreme Court justices, a few states are drawing up changes to curb threats to the impartiality and fairness of their legal systems.

At the state level, it isn't grueling Senate confirmation hearings at the center of judicial battles, as is the prospect in store for U.S. Supreme Court nominee John Roberts. It's soaring campaign spending and bare-knuckled special interest politics.

At least one state -- West Virginia -- is considering scrapping judicial elections altogether after state voters were bombarded by more than 4,000 TV attack ads in 2004 during the most expensive high court race in state history.

West Virginia is one of 22 states that elect their high court justices in head-to-head races. * * *

Two Illinois state Supreme Court candidates raised $9.3 million combined in 2004, spending more than candidates in 18 U.S. Senate races. Gov. Rod Blagojevich (D) now is urging the state General Assembly to pass campaign finance caps.

In Minnesota, judicial races may soon see a flood of money. A federal appeals court on Aug. 2 struck down longstanding restrictions on judicial candidates from aligning with political parties and seeking donations. * * *

The Minnesota ruling likely will garner attention from the 13 other states that hold nonpartisan elections to choose judges. And Minnesota likely will become like eight states that now have partisan balloting -- Alabama, Illinois, Louisiana, Michigan, Ohio, Pennsylvania, Texas and West Virginia.

In 23 states, members of the high court are appointed by the governor with the help of a committee, and in 16 of those states [including Indiana] justices face uncontested "retention elections" at the end of their terms.

In Maine, New Jersey, New Hampshire, Virginia and South Carolina, either the governor or the legislature appoint justices.

Posted by Marcia Oddi on Wednesday, August 10, 2005
Posted to General Law Related | Indiana Courts

Tuesday, August 09, 2005

Environment - Several recent stories

Infectious medical waste - The Gary Post-Tribune has a story today reporting that the Lake county solid waste district will have a public hearing Aug. 18 on whether Lake County need a plant that processes infectious waste. Some quotes:

The district’s board wants to decide whether there’s a need for Midwest Medical Solutions to operate a medical waste sterilizing plant in Gary * * *

Midwest Medical co-owner Russ Karlins said the plant began operating in January after getting an Indiana Department of Environmental Management permit last year.

He contended that the Lake County Solid Waste Management District does not have authority to decide whether Lake County needs his medical waste processing plant, which has customers well beyond the county’s borders.

“It’s very clear that’s a state power and not the district’s,” Karlins said of the “needs” decision.

However, a Lake County judge ruled in June that IDEM’s permit for Midwest Medical was improper because the solid waste district hadn’t decided on its need.

IDEM and Midwest Medical are appealing that decision.

Midwest Medical’s is the only commercially operated medical waste sterilizer in Indiana, Karlins said. Several hospitals have smaller ones, but they can take only their own waste.

Sterilized medical waste can be deposited in any landfill; otherwise, it must be taken to special landfills.

Power plant ash - "Residents fight use of power plant ash near water" is the headline to this report today in the Evansville Courier& Press. Some quotes:
Environmentalists and some area residents are appealing a state permit that would allow the owner of Rockport River Terminal in Spencer County to use power plant ash as construction fill near the town water supply.

After a yearlong process, the Indiana Department of Natural Resources approved the business' permit in April. However, it is being appealed by the groups Save Our Rivers and Save Our Land & Environment and several area residents. * * *

A major source of groundwater stretches beneath the site along the Ohio River, providing a water source for the Indiana towns of Rockport and Grandview. The town of Rockport serves nearly 1,200 water customers, according to the town utility office. That concerns Save Our Rivers' Don Mottley. "There are too many people who depend on this aquifer. We don't need another Pines here in Southwest Indiana," Mottley said.

The Northwest Indiana town of Pines was declared a U.S. Environmental Protection Agency Superfund site in 2000 after a plume of groundwater contamination was discovered. The pollution was traced to power plant fly ash, which was disposed of in a landfill near the town.

"That was in a landfill with liners and monitors," Mottley said. "They are not proposing any monitoring here."

Fly ash - A story yesterday in Recycling Today reported:
A newly formed company, Midwest Celcon Products LLC, has taken the first step in building an aerated autoclaved concrete facility in Sullivan, Ind. According to published reports the company is looking to spend around $15 million to build the project, roughly 30 miles from Terre Haute, Ind.

When operational the project will use around 50,000 tons of recycled fly ash from Hoosier Energy’s Merom generating station.

If built, the project would be the first of its kind in the United States, although this type of operation is more common in Europe. A spokeswoman for the Sullivan County Redevelopment Commission, said that the end product has a number of excellent features, including soundproofing, insulation and the lightweight nature of the product.

While the company has taken the first step in building the project, it will be working on the financing part of the project. It is estimated that the project could be complete within the next 18-24 months.

Lake Michigan beach rights - The Chicago Tribune writes today that Michigan had recently "guaranteed the right to stroll along all Great Lakes beaches in that state."

But even though Illinois environmental groups believe the law is the same here, they don't expect a court ruling to clarify that point soon. Confusion remains over exactly where private property lines end and the public's begin, and several fences on the North Shore reinforce the point.

"Part of the reason it hasn't happened in Illinois is that virtually the entire lakefront of Chicago is open to the public," said Shannon Fisk, staff attorney for the Environmental Law and Policy Center in Chicago. "And the North Shore has its share of beaches." * * *

The [Michigan] ruling solidified the "public trust doctrine," said Keith Schneider, deputy director and founder of the Michigan Land Use Institute.

"This case showed that the public trust doctrine is the law of the land, that there are certain resources on Earth held in common by all people--the sea, the air and the shoreline," he said.

There has not been a major ruling on the public trust doctrine in Illinois since 1990, when a dispute over Loyola University's attempt to build into Lake Michigan went to court and U.S. District Judge Marvin Aspen ruled that the lake bottom was part of the "public trust."

A case similar to the one in Michigan "just hasn't come up," said Cameron Davis, executive director of the Alliance for the Great Lakes in Chicago, who was involved in the Loyola case. "I was surprised the Michigan case was a case at all. Most of this is pretty settled [legal] stuff right now."

But north of Chicago, where public beaches intermingle with palatial homes and at least one private club's beach on Lake Michigan, it is clearly unsettled.

Davis and Fisk believe that in Illinois the high water mark is the point at which the public access ends, not the wet sand.

However, Doug Gaynor, Evanston's director of parks, forestry and recreation, said that after private homeowners asked last year whether people they found on their beaches were trespassing, the city researched the issue.

"The interpretation we've been going on is you have to keep your feet in the water," Gaynor said. "If someone wants to challenge us, OK, we'll deal with it."

At the north end of Evanston, Northwestern University has a private beach, open only to students, faculty, staff and members of its athletic complex.

Though there is a small slice of city land next to it that could provide access to the university's beach under the "high water mark" standard, Alan Cubbage, a university spokesman, said there haven't been any disputes over the years.

"It has not been an issue," he said. "Sometimes we have to kick [NU] students off the beach [after regulated hours], but that's usually it."

For more on the Michigan decision, see this 7/31/05 ILB entry.

Posted by Marcia Oddi on Tuesday, August 09, 2005
Posted to Environment

Ind. Gov't. - More on "Daniels is cleared on his use of RV1"

Updating the 8/2/05 ILB entry titled "Daniels is cleared on his use of RV1" is this AP story by Mike Smith, written from the vantage of a week. It begins:

Ind. Gov. - INDIANAPOLIS -- In his run for governor, Mitch Daniels traveled the state relentlessly in a donated recreational vehicle that became a signature of his campaign.

It was a hit with lots of folks from big cities and little towns all over Indiana. Thousands signed it, many scribbling go-get-'em messages, making it a billboard that Daniels took to all 92 counties at least three times over 14 months.

It was featured in campaign commercials, rolling past scenic swaths of Indiana to drive home a message that Daniels cared about every inch of the state and all its people. Democrats poked fun at it, but there was really nothing controversial about it.

The same cannot be said about the new RV, a much larger vehicle that Daniels has called a mobile version of his governor's office.

Ethical questions have been raised about it, many by or sparked by the media. Warranted or not, they have given Daniels and his administration some headaches.

The questions largely stem from Daniels' pledge to make state government a model in ethics. On his first day in office, he imposed stricter rules on state employees. Among other restrictions, they cannot accept gifts from those who do business with the state. He also appointed an inspector general to help root out government corruption.

In mid-April, the State Ethics Commission issued some fines and reprimands based on the new rules. In one case, a prison superintendent was fined $100 for accepting a $20 hat and two meals worth less than $10 from employees of a health contractor for Indiana's prison system.

After Daniels took office, Monaco Coach Corp., an Oregon-based company with plants in Indiana, donated a $175,000 RV for Daniels' use. It runs on biodiesel fuel donated by the Indiana Soybean Board, a group that promotes the industry.

Daniels took a private plane trip to Washington and got a signed football from Indianapolis Colts quarterback Peyton Manning. In response to reporters' questions, he said they were not personal gifts.

He would not keep the football after leaving office, and the RV and plane trip were donations to the state that allowed him to conduct state business.

Last month, Daniels took RV1 to a political fundraiser for Republican state Rep. Troy Woodruff of Vincennes. According to a story by the Evansville Courier & Press, some people shook hands with Daniels and boarded RV1 for a look around.

That prompted the Indiana Democratic Party to file an ethics complaint with Daniels' inspector general. It said that since the RV was state property, it should not have been used for political purposes.

[Thanks to the often outrageous Taking Down Words. I'd overlooked this piece.]

Posted by Marcia Oddi on Tuesday, August 09, 2005
Posted to Indiana Government

Law - More on "Kentucky Governor charged with circumventing state merit law"

Updating the ILB entry from Saturday, today's Louisville Courier Journal has two stories, one headlined "State Personnel Board chairman Chowning resigns: Other commitments cited; his replacement is lawyer." The lead:

FRANKFORT, Ky. -- The chairman of the state Personnel Board has resigned amid the board's investigation into allegations of illegal hiring for state jobs by the Fletcher administration.
The second story is titled: "Study of workers' party affiliation debated: State report will give breakdown." Some quotes:
FRANKFORT, Ky. -- Two members of the governor's task force on the merit system disagreed yesterday over whether compiling a breakdown of political registrations of state workers, as the state is doing, is a productive idea.

Senate Republican leader Dan Kelly, of Springfield, said the report -- which the Personnel Cabinet is compiling -- would help determine whether the merit system has insulated hiring decisions from politics in recent years.

"The question is, if the merit system is working as intended then there should be a representative number of Republicans that have been hired in previous administrations," Kelly said after the task force's second meeting.

If the percentage of Democrats employed within the merit system is far higher than that of registered Democrats in the state, it would prove there has been preference in hiring in the past, he said.

But a Democratic member of the task force, Rep. Mike Cherry, said after the meeting that such a report could be inconclusive and counterproductive to the task force's work.

"To me it's almost contrary to what we're here to do. We're here to ensure politics is not involved in the process that we're reviewing, so I want to do what I can to depoliticize our actions," said Cherry, who is from Princeton. "This sends a signal that this task force ought not to be sending."

Gov. Ernie Fletcher has estimated that about 90 percent of state employees are Democrats because of hiring decisions during 32 years of Democratic administrations that preceded his election in 2003.

Posted by Marcia Oddi on Tuesday, August 09, 2005
Posted to General Law Related

Ind. Gov't. - Hearing of legislative committee on license branch closings will be online live today

This AP story today by Mike Smith reports:

A legislative committee created to examine license-branch closings and other matters involving the Bureau of Motor Vehicles plans to broadcast its first meeting today live on the Internet.

Although full House and Senate floor sessions were available via both Internet video and audio for the first time last session, it will be the first time the Senate has broadcast a committee hearing, Senate Republicans announced yesterday. * * *

Because the Webcam used to broadcast floor sessions in the Senate is not portable, only hearings taking place in the chamber can be available online.

Today's hearing will be held in the Senate chambers and is set to begin at 1 p.m. EST. The live broadcast can be seen by visiting www.legislative.in.gov and clicking on "Watch the General Assembly Session," then selecting "Watch video from the Senate."

Access the home page of the Interim Study Committee on Motor Vehicle Issues here. The agenda for today's meeting is available here. It includes:
(1) Introduction of Committee Members and Staff
(2) Review of Committee Charge
(3) Initial Comments By Committee Members
(4) Public Testimony
(5) Mr. Joel Silverman, Commissioner of the Bureau of Motor Vehicles
(6) Other Business
(7) Select next meeting date.
Note: I have seen no similar annoucement re the Interim Study Committee on Eminent Domain, set to be held Wednesday in the ISOB Auditorium.

Posted by Marcia Oddi on Tuesday, August 09, 2005
Posted to Indiana Government

Monday, August 08, 2005

Ind. Law - Political yard signs in the news again

An ILB entry from Sept. 30, 2004, titled "More on political yard signs," begins: "First it was Noblesville, then it was Lake County, yesterday it was Valparaiso (in Porter County)."

Today the Anderson Herald Bulletin has a story titled "Signs becoming a hot topic," that begins:

A familiar sight in Madison County during an election year is the plethora of yard signs trumpeting candidates running for office. If the Indiana Civil Liberties Union has its way, those signs might become permanent fixtures.

Currently a Madison County ordinance restricts election signs to two months prior to an election to 10 days after Election Day. The county Plan Commission can seek a court injunction if the signs are not removed by the deadline and the court can levy a $1,000 per day fine.

The ICLU argues that time limits on yard signs is an infringement on free speech and wants the restrictions removed.

Posted by Marcia Oddi on Monday, August 08, 2005
Posted to Indiana Law

Ind. Law - More on eminent domain in Indiana

The Noblesville Daily Times also has a comprehensive story today on eminent domain and the upcoming legislative interim committee meeting. Some quotes:

State Sen. Luke Kenley said a [2005] bill from a northern Indiana legislator would have made it harder for Indiana units of government to take land and would ban the practice of taking land for private development.

With the U.S. Supreme Court's decision in Kelo vs. the City of New London, it is likely that a bill by Rep. Dave Wolkins, Winona Lake, will get more attention in the coming General Assembly, Kenley said. Wolkins chairs a new eminent domain study committee, which begins its work this week. Kenley serves on that study committee. * * *

Wolkins' bill would require that private property taken by the government not be used for the benefit of another private property owner, Kenley said. It also would make the government pay a premium for taking land.

Presently, Indiana landowners are supposed to be paid a fair price for their land if the government takes it. That price is usually determined by an appraisal process. * * *

Wolkins has stated that in light of the Kelo ruling, revising Indiana's eminent domain laws will be one of his top legislative priorities in the 2006 legislative session.

"In the last session, there were particular special interest groups at work to defeat my eminent domain legislation despite an overwhelming amount of citizen support in favor of it. I intend to do whatever it takes to get my legislation passed in the upcoming session," Wolkins said.

In particular, he takes issue with a position by the Indiana Association of Cities and Towns supporting the Supreme Court ruling. In a recent letter to newspapers, IACT said the court's ruling is good for Indiana and will allow local governments to "bring jobs and a vibrant economy to cities and towns."

Wolkins disagrees, saying, in a news release, "While I fully support economic development and job creation, local government's seizure of land to be privately developed should not be considered to be in the best interest of citizens. The goal of government should be to serve the people, not turn a profit."

Indiana law allows governments that want to redevelop an area to first decide that the area is "blighted." Wolkins said his bill would put new requirements in place that would make it harder for an area to be declared blighted. This is important, he said, because local governments have sometimes declared areas that have had well-kept homes in them as blighted only so a private developer could obtain the land and build something else.

Kenley, who said he generally agrees with the Wolkins bill, said the Eminent Domain Committee will try to have a bill crafted by November that would be introduced to the next session of the General Assembly.

Posted by Marcia Oddi on Monday, August 08, 2005
Posted to Indiana Law

Ind. Law - Legislative Interim Committee on Eminent Domain to meet

The Fort Wayne Journal Gazette has an editorial today on the first meeting of the legislative Interim Committee on Eminent Domain, scheduled for this week.

A U.S. Supreme Court ruling has given an unusual level of importance and immediacy to a legislative study committee that holds its first meeting this week. While such panels can sometimes be an exercise in bureaucratic futility, many Hoosiers will be watching for the results of the Interim Committee on Eminent Domain.

When Rep. David Wolkins, R-Winona Lake, sponsored a bill in the last legislative session to limit cities’ powers to declare eminent domain and seize private land, the issue was under the radar screen of much of the public. The Supreme Court’s July decision allowing cities to seize private land and transfer it to other private owners if it benefits the public changed that, drawing criticism from both conservatives and liberals.

Unlike some Supreme Court rulings that override state laws, Justice John Paul Stevens made clear in his decision that states can raise the bar for declaring eminent domain in taking land. Wolkins, chairman of the study committee, will very likely lead the effort to encourage fellow lawmakers to do just that. His efforts will probably run into heavy opposition from the Indiana Association of Cities and Towns, which also opposed his bill.

The legislature should preserve the powers of local governments to take land for public use such as highways or government buildings. Such power often gives landowners a strong incentive to negotiate. And the legislature should review how property is valued to make sure people whose land is taken through eminent domain are fair compensated.

But allowing government to take private land and give it to another private owner is wrong, and the General Assembly should ban the practice in Indiana.

The meeting will be Wed., August 10 at 1 p.m. in the Auditorium of the State Government Center. Here is the agenda. Here is the membership. Here is the enrolled version of HB 1063 (PL 173-2005), that established the interim study.

Posted by Marcia Oddi on Monday, August 08, 2005
Posted to Indiana Law

Ind. Gov't. - IU president tries to deflect critics

The Louisville Courier Journal carries this AP story today that begins:

BLOOMINGTON, Ind. (AP) -- Two years after becoming Indiana University president, Adam Herbert is hearing from critics who say he takes too long to make decisions, keeps a low profile and spends too much time on sports.

But IU trustees say Herbert has taken the right approach by focusing first on university operations and problems in the athletic department.

"This is a very complicated institution, and two years is not very long to get your hands around Indiana University," Steve Ferguson, who will become president of the board of trustees this month, told The Herald-Times for a Sunday story.

The newspaper asked in July for Herbert's 2005 appointment calendar under the Indiana Access to Public Records Act. Herbert provided a copy.

It shows conferences with IU administrators, time spent preparing for and attending university trustee meetings and travel to alumni events in other cities.

It shows no IU activity during spring break or the week after commencement ceremonies and indicates Herbert has been gone from Indiana since early July - another topic of criticism.

Herbert defended his record in a phone interview last week from Florida, where he has a home.

I don't know how accurate this story is. But as an IU alumn, I must confess that everytime I see one of those Purdue ads on TV featuring their high-octane president, Martin C. Jischke, I'm jealous. And new Ball State president Jo Ann M. Gora looks to be a real find, as this Indianapolis Star story on her "freshman year" attests.

[More] This week's Indianapolis Business Journal has a front-page story titled "Quiet approach drawing criticism: President's lack of visibility hurts IU, some complain." The story is currently available online, here.

Posted by Marcia Oddi on Monday, August 08, 2005
Posted to Indiana Government

Sunday, August 07, 2005

Law - Lack of comity on the Michigan Supreme Court?

The South Bend Tribune has an interesting AP article today by David Eggert that is partially a review of the 2004-05 term of the Court and partially an account of judicial sniping. The conclusion:

"This idea that judges or justices are always tea and crumpets, civil and polite -- that's a bunch of hooey," Ballenger said.
A second story by the same writer is headlined: "Land gets court's highest attention: Second straight term concludes with land-use ruling."

The land-use case this year is Glass v. Goeckel, concerning the right to walk along the Lake Michigan beach. See ILB coverage here, from June 30, 2005.

The land-use case referenced from the last term of the Michigan Supreme Court presumably was County of Wayne v. Hathcock. The lead from the Detroit Free Press on July 31, 2004 was:

Reversing more than two decades of land-use law, the Michigan Supreme Court late Friday overturned its own landmark 1981 Poletown decision and sharply restricted governments such as Detroit and Wayne County from seizing private land to give to other private users.
Ironic, isn't it? Access the entire ILB entry here.

Posted by Marcia Oddi on Sunday, August 07, 2005
Posted to Indiana Law

Law - More on eminent domain

"A backlash on eminent domain case" is the headline to this balanced editorial today in the Richmond Palladium-Item.

In the ILB entry on eminent domain last Wednesday, HB 1063 from the last session was mentioned. Here are some of the earlier references to that proposal:

The first mention was on Jan. 23, 2005. Others: Jan. 31, 2005; Feb. 22, 2005; March 15, 2005; and April 1, 2005.

[More] See this AP article for a review of what states are doing to blunt the effect of Kelo.

Posted by Marcia Oddi on Sunday, August 07, 2005
Posted to Indiana Law

Saturday, August 06, 2005

Ind. Gov't. - Courthouse Girls calendar hits the streets

"Courthouse Girls calendar hits the streets" is the headline to this story by Joy Leiker in the Muncie Star-Press today.

This July 9th story, also by Joy Leiker, gives some background. "The Board of County Commissioners voted 2-1 on June 6 to raze the 128-year-old courthouse and replace it with a new structure on the downtown square." More quotes:

WINCHESTER - Schools. Homes. Government buildings. Is any historic building in Winchester safe? All types, shapes and sizes of buildings have been demolished over the years, but none have fallen with the fury that's tied to the planned demolition of the Randolph County Courthouse.

It's the centerpiece of a downtown district that four years ago was added to the National Register of Historic Places. Talk of its demise has created a stir that local historians cannot find a match for in the record books. Objectors have signed petitions, rallied on the courthouse lawn and begged officials to reconsider.

Here is the Indiana Historic Landmarks Foundation page on the endangered Randolph County Courthouse, including a photo of the building.

And here is a direct link to the Muncie paper's photo of the calendar's back cover. Here is a link to the Court House Girls' website, where you can order the calendar or a T-shirt (caution - loud music plays when you access this site).

[More] "Calendar signing brings in a crowd: Spunky senior models' project attracts interest from near and far" is the headline to this story, also by Joy Leiker, in today's Richmond Palladium-Item. Some quotes:

To the seven women, saving the Randolph County Courthouse can't just be a side effect. It's the main goal.

The calendar is their protest of plans to tear down the 128-year-old building. Five dollars of every $12.95 calendar sold goes into a save the courthouse fund.

It's clear that at least on the first day of sales, plenty of people found something they liked on the calendar's pages. Organizers estimated that 250 people stood in line to meet the models and get autographs when the calendars went on sale at 11:30 a.m. Friday. By the end of the day almost half of the 3,000 calendars were sold -- 750 sold to people who showed up in Farmland for the unveiling, and another 750 stuffed into envelopes ready for the mail.

Posted by Marcia Oddi on Saturday, August 06, 2005
Posted to Indiana Government

Law - Kentucky Governor charged with circumventing state merit law

In the latest in an ongoing series, the Louisville Courier Journal has a story today with these headlines: "Merit system investigation: 'A corrupt political machine' - Court filing alleges administration aimed to put supporters in merit jobs." Some quotes:

FRANKFORT, Ky. -- Top Fletcher administration officials formalized "a corrupt political machine" earlier this year to circumvent state civil service law and give more jobs to their supporters, according to a court filing.

The filing yesterday by the state attorney general's office also said the administration put people into all nine state cabinets to act as "eyes and ears" on personnel matters so the secretaries could handle other business. * * *

The filing in Franklin Circuit Court summarized findings of a three-month investigation into allegations of illegal hiring based on politics for rank-and-file state government jobs.

Kentucky law requires that such jobs be filled on qualifications.

Nine current or former Fletcher administration officials have been indicted by a special grand jury, including Nighbert and two other Transportation Cabinet officials who were indicted on three misdemeanor counts each involving Duncan's firing.

All have denied wrongdoing.

Fletcher has repeatedly said since the investigation began that while some mistakes were made, he's unaware of any violations of the merit system, the state civil service law.

Posted by Marcia Oddi on Saturday, August 06, 2005
Posted to General Law Related

Ind. Law - State tax officials recall county tax warrants

An interesting report in the Evansville Courier& Press by Jennifer Whitson, headlined "Late tax collections delayed for amnesty." It begins:

INDIANAPOLIS - In preparation of a one-month amnesty program where tax delinquents can get caught up interest- and penalty-free, state tax officials have recalled county tax warrants, halting county-level efforts to collect certain back taxes.

In the 2005 session, the Legislature passed a bill requiring the Indiana Department of Revenue to set up a tax amnesty program. Under the program, people or businesses who owe taxes that accrued before July 1, 2004, will get a one-time, one-month period during which they can pay up without paying interest or penalties.

Usually when people fall behind in their taxes, the state first tries to collect. If that doesn't work, the state issues a tax warrant and sends those warrants to the county level. Sheriff's offices hold the warrants for 120 days and try to collect. If unsuccessful, the warrants go back to the state, which then turns them over to a collection agency.

Department spokeswoman Stephanie McFarland said the amnesty will begin Sept. 15. As it nears, the department plans an aggressive advertising campaign including radio and TV commercial and mailings to those behind in their taxes.

But also in preparation, in July the state recalled all eligible tax warrants forwarded to the counties. That means counties aren't trying to collect on any taxes from before July 1, 2004, but they still are working on a smaller number of warrants issued for newer tax debts.

Here is the Indiana Department of Revenue's Tax Amnesty site.

[Update 8/9/05] The Evansville Courier& Press printed a correction today to the above-quoted story:


In a Saturday article on Page A1, the Courier & Press incorrectly reported the time frame for the state's tax amnesty program. Those who are behind on their taxes, owed through July 1, 2004, can pay up without interest or penalties, during a two-month program. The program begins Sept. 15 and ends Nov. 15. Also, the story incorrectly reported the amount of money the Department of Revenue hopes to collect through the program. It is estimated to bring in $65 million.

Posted by Marcia Oddi on Saturday, August 06, 2005
Posted to Indiana Law

Law - Gary native is first woman in top steel job

The Gary Post-Tribune reports today that:

Gary native Sharon K. Kelley is forging ahead in the male-dominated steel industry.

U.S. Steel has named the 50-year-old Kelley as the new plant manager at its Midwest plant in Portage, making her the only female steel-plant manager in the company and possibly the first female steel plant manager in the United States, according to one analyst. * * *

Kelley holds a bachelor of science degree in chemical engineering from Purdue University and a master’s degree in business administration from the University of Pittsburgh.

She was most recently general manager of automotive sales and vice president of U.S. Steel International.

She started her career with the company 27 years ago in the quality assurance department at Gary Works. She’s also been involved in operations, including as a senior area manager for steel producing at Gary Works. She was also manager of quality assurance at the Fairless plant and has been general manager of the commercial department.

[ John H. Goodish, U. S. Steel’s chief operating officer] was surprised that Kelley had worked in steelmaking. “It’s hard work. It’s dirty and hot. I don’t pay that much attention to plant managers. But from all the plants I’ve been to, I’ve never seen one woman. The steel industry tends to be heavily overwhelmingly populated by men.”

My dad worked in the Gary mills, and no women were permitted to set foot in the plant back then, even to tour. That meant no summer jobs for female college students when I was in school. I don't know if that had changed by the time Supreme Court nominee John Roberts had a summer job in the Bethlehem plant a decade later.

Posted by Marcia Oddi on Saturday, August 06, 2005
Posted to General Law Related

Law - Pssst, looking for a deal on an artificial knee?

Maureen Hayden of the Evansville Courier& Press had a story yesterday headlined "Fake knees, hip implant part of eBay's stolen stash." Some quotes:

On the morning of July 26, a visitor to the eBay online auction site would have found some bargain prices on medical supplies, including a set of eight artificial knees with rotating hinges. Wholesale priced at $5,000, the box of Zimmer Nexgen artificial knees had gone to the top bidder for only $299. It was a steal. Literally.

Evansville police say those bargain-basement-priced joints were stolen by an employee of St. Mary's Medical Center, who hid them under a pile of linens in a cart and snuck out of a storage area, so he could take them home and sell them to the highest online bidder. The artificial knees were just one of more than two dozen items stolen from the hospital and up for sale on eBay on the morning of July 26, when a medical supply salesman discovered that his $116,000 spine-surgery equipment set was missing from the storage area.

Other items stolen from the hospital and offered to the highest eBay bidder that day, according to court records, was a $5,000 artificial hip implant; a pair of cystic duct forceps for use during gallbladder surgery; some eye surgical instruments; knee braces; pancreatic surgery tubing clamps; a complete instrument tray for knee-replacement surgery; and assorted other medical supplies. * * *

Evansville resident Brian Pickens, 31, was charged with the thefts Tuesday, a week after a Synthes medical supply salesman discovered his missing spine-surgery kit was posted for sale on eBay. If the allegations are true, it wouldn't be the first time eBay has been used to fence stolen goods. Company officials admit that people have tried to use eBay to unload everything from stolen pacemakers to fake art masterpieces. * * *

Pickens admitted in a taped statement that he took part in some 200 eBay transactions involving stolen medical supplies, and had buyers in Russia, Ukraine, Mexico and the United Kingdom.

Getting those stolen items back may be a challenge. Evansville police don't have jurisdiction outside the city limits, much less outside the continent. Gulledge said the city will have to rely on relationships with other police agencies across the globe, as the investigation continues. Right now, detectives still are trying to determine just how wide the scope of stolen medical supplies from an Evansville hospital may be.

Posted by Marcia Oddi on Saturday, August 06, 2005
Posted to General Law Related

Friday, August 05, 2005

Ind. Decisions - No transfer list for week ending August 5, 2005

There is no transfer list this week.

Posted by Marcia Oddi on Friday, August 05, 2005
Posted to Indiana Transfer Lists

Ind. Decisions - Still more on Fort Wayne Airport decision

Balencing yesterday's editorial in the Fort Wayne News-Sentinel is an editorial today in the Fort Wayne Journal Gazette headlined "Common-sense court." Some quotes:

At a time when many Americans on both sides of the political aisle are criticizing various court rulings for supposedly reaching too far beyond the laws they are interpreting, the Indiana Supreme Court this week delivered a reminder that common sense, the law and the courts can all be on the same page.

The state’s highest court determined that it’s simply too late and too much has happened to challenge the constitutionality of the 1985 law that created the Fort Wayne-Allen County Airport Authority. The ruling was unanimous and upheld the decision by Judge Thomas Felts of Allen County Circuit Court. It also ends a cloud of uncertainty that delayed the authority’s ability to borrow money. And the justices offered more clarity to their 2003 ruling that called into question legislators’ habit of adopting special legislation that narrowly and unfairly benefits a single city, county or other governmental unit. * * *

An attorney for the plaintiffs expressed disappointment that the state Supreme Court did not specifically rule whether the authority’s creation was unconstitutional special legislation. In 2003, the court, in the case of South Bend v. Kimsey, struck down a South Bend annexation for that reason. And Hoosier officials had been awaiting follow-up rulings to explain more precisely which laws applying to specific localities are constitutional.

The Kimsey ruling, which Boehm also authored, was bold but correct. It bluntly warned legislators that the constitutional prohibition against special laws that favor a particular community above others is well founded while, at the same time, recognized that special legislation is appropriate in truly unique situations. In its wake, some officials worried that hundreds of state laws could be found unconstitutional.

Tuesday’s ruling offered additional clarification, indicating the justices are not inclined to undo special legislation that has gone unchallenged for years and that empowered governments to borrow money, buy property and levy taxes. Had the court ruled the other way in the Smith Field case, taxpayers across the state would be spending more of their tax money on the services of lawyers because hundreds of state laws would indeed have come into question, likely spurring a rash of new lawsuits.

This week’s ruling goes far in putting to rest the worst-case scenarios expressed after the Kimsey decision. And following controversial U.S. Supreme Court rulings on eminent domain, medical marijuana and the Ten Commandments, the Indiana justices demonstrated there is a place for simple common sense in the law and in judicial rulings.

Posted by Marcia Oddi on Friday, August 05, 2005
Posted to Ind. Sup.Ct. Decisions

Environment - Chicago River's Clean Water Act success: Beavers at Merchandise Mart

The headline today to this story in the Chicago Tribune: "I'll be dammed! Wildlife moves to Chicago River: With cleaner water, many critters have decided they also like a downtown river view. As for tree damage, leave it to beavers." Some quotes:

It wasn't the trendy restaurants or the stunning architecture that brought the latest visitors downtown.

The brown, bucktoothed rodents came because of a natural riverbank with tempting poplar trees.

The beavers swam to Wolf Point, puttered up the riverbank and snuck under the black iron gate near the Merchandise Mart. They blatantly ignored signs that warned plant vandals of arrest and in the shadow of the city's skyscrapers chowed down on a few dozen poplar trees.

It wasn't the first sighting of beavers--or rather beaver damage--in Chicago. But, say members of Friends of the Chicago River, it highlights how improvements to the river attract intriguing wildlife downtown.

"I personally have seen trees chewed, north and south of River City as well as Bubbly Creek [South Fork of the South Branch] and near Diversey," said Margaret Frisbie, executive director of Friends of the Chicago River. "People will be very surprised to know beavers are in the Chicago River and especially downtown, in an urban area."

There are more surprises in store. Friends of the Chicago River also report sightings of muskrats; minks; foxes; blue, green and black-crowned night herons and kingfishers.

Much of the improved water quality has to do with the Clean Water Act, federal legislation from 1972 that limits the amount of contaminants that can be dumped into the nation's waterways, said Frisbie. Infrastructure changes to improve sewage treatment at the Metropolitan Water Reclamation District and efforts by the city and volunteers to clean the river also have helped, she said.

Posted by Marcia Oddi on Friday, August 05, 2005
Posted to Environment

Ind. Courts - News of Indiana judges

The Louisville Courier Journal reports today that "Ex-Floyd Circuit Judge Henry Leist dies: Had long career at local, state levels."

Henry Leist, a Floyd Circuit Court judge for 18 years and later a senior judge for the state of Indiana, died Wednesday at Floyd Memorial Hospital. He was 76.

He died of complications from an infection, said his wife of 34 years, Patricia Leist.

And Ed Feigenbaum reports in Indiana Daily Insight today:
After 14 years on the bench, Carroll County Circuit Court Judge Joseph Carey, 79, informs the Governor that he plans to retire on October 1.

Posted by Marcia Oddi on Friday, August 05, 2005
Posted to Indiana Courts

Thursday, August 04, 2005

Ind. Decisions - More on Fort Wayne Airport decision

Following up on reports yesterday and Tuesday on the Fort Wayne-Allen County Airport Authority ruling (scroll down to read), there is this editorial in the Fort Wayne News-Sentinel that concludes:

A group called SMDfund filed a lawsuit in 2003 challenging the law that created the airport authority. The law, the suit said, violated the state constitution’s prohibition on special legislation that affects only certain communities instead of the whole state. Lawmakers historically have gotten around that provision by using population limits instead of naming specific locations. The airport-authority legislation, for example, allowed a city-county airport authority in any county populated by more than 300,000 but less than 400,000 people. Guess which Indiana county is the only one of 92 to fit that category?

The Indiana Supreme Court had always looked the other way instead of confronting such fiction. But in 2003, justices struck down an annexation law in St. Joseph County because it was contrary to one applying to the rest of Indiana. That made a lot of people nervous.

Which the court probably realizes. This week, it ruled against SMDfund, but on the narrow, technical grounds that the group shouldn’t have waited 17 years before challenging the law. Of course, the group had no reason to challenge the law before the Supreme Court signaled that it might take such a challenge seriously.

Nobody should relax too much because of this ruling. The court left another shoe up in the air, which it could drop at any time.

Posted by Marcia Oddi on Thursday, August 04, 2005
Posted to Ind. Sup.Ct. Decisions

Environment - More on "Head of Improving Kids' Environment moves on"

Updating the ILB entry from 7/31/05, the Indianapolis Star has an editorial today titled "Worthy successor takes up the cause," commenting on Janet McCabe's replacing Tom Neltner as head of the Indiana environmental group, Improving Kids Environment (IKE). The Star concludes:

A Harvard Law School graduate, [Janet] McCabe showed persistence, flexibility and talent for bringing about compromise in dealing with controversial air pollution issues while assistant commissioner for the Indiana Department of Environmental Management's Office of Air Quality. Both McCabe and Neltner bring commitment, competency and common sense to their crusade for a healthier environment.

Tom Neltner has made a difference. While he will be missed, his environmental legacy will continue in the capable hands of his successor.

See also this announcement on the IKE website.

Posted by Marcia Oddi on Thursday, August 04, 2005
Posted to Environment

Law - Chart of "Reaching the Court"

The LA Times has a nice PDF chart of the process of selecting a new U.S Supreme Court justice, available here.

Posted by Marcia Oddi on Thursday, August 04, 2005
Posted to General Law Related

About this blog - Nice mention today

The Indiana Law Blog received this very nice mention this morning in Ed Feigenbaum's Indiana Daily Insight:

(THURS) Some good news: due to popular demand, Marcia Oddi has jump-started her invaluable Indiana Law Blog. We told you before here -- and we continue to believe -- that a sponsorship opportunity here would prove to be of great benefit to just about any entity that chose to help underwrite her venture, which has been lauded by judges, lawyers, legislators, state and local officials, business leaders, reporters, and others.
It is true, the Indiana Law Blog is back, after a three-month hiatus. I'm trying to pace myself ...

Posted by Marcia Oddi on Thursday, August 04, 2005
Posted to About the Indiana Law Blog

Ind. Gov't. - Indiana governor's residency requirement, as contrasted with New York's

Remember the flap about the Indiana governor's residence? (If not, see this 2/11/05 entry titled "The Governor shall reside in the 'seat of government'" and this 2/12/05 follow-up.)

The short of it was that Governor Daniels had hoped to build and live in a "dream home in Carmel" within the next few years, but put plans on hold when reminded that the Indiana Constitution requires that the governor reside in the "seat of government."

Well, not so in the State of New York, if you read this story yesterday in the NY Times, headlined "Remember New York's Capital? Forget It." Some quotes:

ALBANY, Aug. 2 - The sign on the Thruway here says "Welcome to Albany, Capital of New York State." And, sure enough, Section 1-A of the Consolidated Laws of New York State spells it out in plain enough English: "The capital city of the state of New York is hereby designated to be the city of Albany."

But the casual observer could be forgiven for wondering whether Albany, where the halls of power are pretty empty these tranquil summer days, is really the state capital. Gov. George E. Pataki, after all, has left the Governor's Mansion here, preferring to live in his home in Garrison, a good hundred miles to the south. * * *

Sure, the State Legislature still convenes here, as it has since 1797. But the Legislature is still officially part time, and its session ended in June after 67 working days in Albany. * * *

Assemblyman John J. McEneny, a Democrat who represents Albany and was once its county historian, said that things began to change with the opening of the New York State Thruway in 1954. Before that, he said, travel took so long that people tended to stay in Albany for the whole legislative session. (Now, the legislative session ends most weeks on Wednesdays, which are known as "getaway days," when lawmakers tend to hit the Thruway or the airport to return to their districts.)

When Governor Pataki proposed moving several thousand state workers to old I.B.M. offices in the Hudson Valley early in his term, Assemblyman McEneny fought back with a 1797 law that stated that fiscal records must be kept in Albany. "It's important that you have a capital where people rub elbows all the time," he said.

But New York apparently does not have a "the governor shall reside in the seat of government" provision. Rather, it has, according to my review of the New York Constitution, a much less demanding provision at the end of Article 4, Sec. 3:
The governor shall receive for his or her services an annual salary to be fixed by joint resolution of the senate and assembly, and there shall be provided for his or her use a suitable and furnished executive residence.

Posted by Marcia Oddi on Thursday, August 04, 2005
Posted to Indiana Government

Wednesday, August 03, 2005

Law - News from a sister state, Illinois

Two stories in the Chicago Tribune caught my eye this morning.

"Inspector general saw violations, did nothing"
is the headline to this story. It begins:

When reports surfaced in 2004 that a white-owned firm was cashing city checks that were intended for a minority-owned company supplying the city with garbage carts, the inspector general was asked to investigate.

Six months later, Alexander Vroustouris sent his report to Mayor Richard Daley with his findings: There was no wrongdoing, concluded Vroustouris, who was forced out last month amid allegations by top City Hall officials that he failed to ferret out corruption in city government.

The inspector general's report, obtained by the Tribune, raises questions about the quality of the investigation that he conducted.

It shows that Vroustouris didn't recommend any action despite finding violations of city purchasing rules by two companies with similar-sounding names and didn't explain how checks made out to the minority-owned firm were cashed by the white-owned firm.

"This investigative report is just sort of ludicrous. It outlines all kinds of problems and concludes there is no problem," said Cindi Canary, executive director of the Illinois Campaign for Political Reform. Vroustouris declined to comment.

"Ex-judge admits he looted estate: Downstate jurist stole while on bench", is the headline to this story. Some quotes:
A former Downstate judge admitted he stole hundreds of thousands of dollars from a businessman's estate after being elected to the bench in 1990, pouring the money into his family's failing businesses and a second home for himself.

Robert Cochonour, who was a Cumberland County circuit judge from 1990 to 2002, testified that he stole from the $2.2 million estate as a "last resort" to save his family's oil and horse businesses and that he intended to pay the money back.

He also acknowledged spending money on improvements to a country house, which he used for entertaining, and on expenses such as restoring and tuning a piano, according to a transcript of his testimony. * * *

A judge ruled in June that Cochonour had to testify or risk losing his plea bargain. The plea deal is crucial for Cochonour--and unpopular with many in Cumberland County--because it allowed him to keep a judicial pension of $76,650 a year. He also gets a pension of nearly $19,000 a year as a former Cumberland County state's attorney, according to the transcript. * * *

Cochonour's scheme did not begin to unravel until 2001. When Cochonour pleaded guilty, he admitted stealing an unspecified amount "in excess of $100,000" from 1985 to 1990--before he became a judge. A probate judge later ruled that Cochonour owed the foundation $5.2 million, including more than $3 million in interest.

During the deposition, Cochonour said he could not estimate how much money he had stolen. "Obviously it's seven figures," said his attorney, Rick Halprin of Chicago. But "my view is there's none of it left. It went into a failed oil company and failed horse-breeding [business]." Some money also went into the country house. But Halprin said the house is worth about $120,000 and "it's mortgaged up to the hilt."

Posted by Marcia Oddi on Wednesday, August 03, 2005
Posted to General Law Related

Law - More on eminent domain

Updating the ILB entry from Sunday, 7/31/05 -- Andrea Neal has a lengthy piece today that appears in both the Indianapolis Star (here) and the Evansville Courier& Press (here) that begins:

Long before the Supreme Court's explosive ruling to expand the reach of eminent domain, Rep. David A. Wolkins had crafted a bill to limit Indiana government's ability to take private property.

In its earliest form, HB 1063 would have barred local and state entities from condemning private property and then turning it over to private developers for commercial use.

The measure went through several rewritings before lawmakers voted to send the issue to a study committee. Wolkins, R-Winona Lake, will serve as chairman of the Interim Committee on Eminent Domain, which will meet for the first time at 1 p.m. Aug. 10 in the Indiana Government Center South. * * *

Wolkins said it's unlikely his committee would choose to impose an outright ban on commercial use of eminent domain, which some states are contemplating, but will undoubtedly want to tighten up Indiana law. As it now stands in Indiana, government can take property for private development if it meets the definition of blighted, a slightly different scenario than the New London and Lakewood cases, whose main purpose was generating more tax dollars. Among other objectives, Wolkins would like to guarantee property owners receive a premium price when forced to sell for economic development.

[Later today I will add links to earlier ILB entries on HB 1063.]

And the Wall Street Journal has a story in its free section titled "Eminent-Domain Uproar Imperils Projects." Some quotes:

When the U.S. Supreme Court ruled that governments had broad power to take private property to boost economic development, real-estate executives cheered.

But an unexpected backlash against the ruling stopped the cheering and threatens to derail some projects that depended on the use of eminent domain to seize property. * * *

In the six weeks since the Supreme Court's ruling in the Kelo v. New London case, bills have been introduced in Congress and in more than half of the state legislatures that would restrict, to varying degrees, the use of eminent domain for private development. Delaware has gone the furthest, passing a law restricting the use of eminent domain. In Alabama, legislation curbing eminent domain for economic purposes has passed both houses and awaits the governor's signature.

Real-estate and economic-development officials are growing increasingly concerned that the backlash will block more projects, potentially causing big losses for developers and canceling long-planned projects. * * *

Leading the charge against eminent domain is the Institute for Justice, the nonprofit law firm based in Washington that argued and lost the Kelo case in the Supreme Court but has scored big in the court of public opinion.

The group has a Web site cataloging hundreds of eminent-domain cases around the nation and offering "Eminent Domain Abuse Survival Guides." The group has printed T-shirts, with a picture of a huge hand about to squash a home. It says the Kelo decision focused the public's attention on a longstanding, but little-known, power of government.

"It's finally dawning on homeowners and small businesses that this could happen to me," says Dana Berliner, a lawyer at the Institute for Justice.

Whether the Institute for Justice can take credit or not, the issue has struck a nerve with Americans. In Connecticut, where the Supreme Court case originated, a Quinnipiac University poll shows just how much the eminent-domain issue resonates. By an 11-to-1 margin, those surveyed said they opposed the taking of private property for private uses, even if it is for the public economic good. According to the poll, 89% of those surveyed were against condemnations for private economic development, compared with 8% for them. Douglas Schwartz, head of the poll, says he has never seen such a lopsided margin on any issue he has polled.

Real-estate and economic-development executives say it's difficult to counter the emotional side of the argument that focuses on individual property rights. "It makes better headlines if there is an 85-year-old grandmother who is losing her house because of a highway," says Jeffrey Finkle, president of the International Economic Development Council, a nonprofit group based in Washington.

The group has posted an eminent-domain resource kit on its Web site and is talking to members of Congress about the importance of using eminent domain to redevelop cities and attract business.

Posted by Marcia Oddi on Wednesday, August 03, 2005
Posted to General Law Related

Ind. Decisions - More on yesterday's Supreme Court decision re the Fort Wayne airport

Niki Kelly of the Fort Wayne Journal Gazette writes today:

INDIANAPOLIS – The Fort Wayne-Allen County Airport Authority got welcome news from the Indiana Supreme Court on Tuesday when the five justices ruled unanimously to throw out a lawsuit challenging the airport authority’s constitutionality.

Several supporters of Smith Field banded together as SMDfund and sued in 2003, alleging that the airport authority was illegal because it was created in 1985 by special legislation.

The challenge could have altered the fate of more than 500 laws on Indiana’s books that benefit specific communities or counties.

Instead, the court decided the case on procedural grounds and didn’t venture near the constitutional questions surrounding the case.

The decision said the doctrine of laches – sometimes referred to as when people sleep on their rights – barred the case from moving forward. Laches requires an inexcusable delay in asserting a known right and a change in circumstances causing prejudice to the opposing party, the ruling said. The first element was easily satisfied because the plaintiffs waited 17 years before bringing suit.

In addition, the justices ruled the airport authority would be prejudiced because it has incurred more than $44 million in debt and entered into a variety of leases, contracts and other obligations since its creation. * * *

Joe Tocci, chairman of the SMDfund, said that it took more than seven months for the justices to essentially decide the case on procedural grounds.

“We are relieved they finally made a ruling, but I’m rather perplexed,” he said.

Tocci’s counsel, Charles Shedlak of South Bend, said he was disappointed that the court didn’t rule on whether the statute violated the Indiana Constitution, which bars special legislation and says laws should be uniform throughout the state.

Access the entire story here. See the ILB entry immediately below for more on yesterday's ruling.

Posted by Marcia Oddi on Wednesday, August 03, 2005
Posted to Ind. Sup.Ct. Decisions

Tuesday, August 02, 2005

Ind. Decisions - Important Indiana Supreme Court decision today

Today the Ind. Supreme Court has posted its decision in SMDfund, Inc., et al v. Fort Wayne-Allen Co. Airport Authority, et al., available here. This is the trial court decision for which the Supreme Court granted emergency transfer (bypassing the Court of Appeals) on Sept. 13, 2004. This case touched on several issues, and I recommend to those interested this 9/21/04 ILB entry. See also the 9/22/04, 12/20/04 and 1/2/05 ILB entries.

Today's 9-page ruling, by Justice Boehm, with the other four justices concurring, begins with the somewhat disappointing:

The plaintiffs challenge the constitutionality of the statute creating the Fort Wayne-Allen County Airport Authority. The Authority was created in 1985 pursuant to a statute the plaintiffs now contend violates the prohibition in the Indiana Constitution against special legislation. We hold that laches bars this claim.
At page 8 Boehm writes:
In short, laches bars the plaintiffs’ claim. Because we hold that the plaintiffs’ claim is barred by laches, we need not address the statute of limitations issue which was the basis of the trial court’s ruling reaching the same result. We affirm the trial court’s entry of summary judg-ment for the defendants.
[More] The AP reports late this afternoon, in a story headlined "Court avoids decision on special laws", that:
A group’s claim that the Fort Wayne-Allen County Airport Authority is illegal because it was created by unconstitutional special legislation is invalid because the plaintiffs waited too long to sue, the Indiana Supreme Court ruled today.

The case could have potentially struck down hundreds of state laws for violating a state constitutional provision designed to bar legislation that benefits only specific counties or communities.

But the justices ruled on more narrow grounds, saying it was unfair for the plaintiffs to wait 17 years before challenging the 1985 law that created the airport authority. The unanimous ruling upheld a lower court decision dismissing the lawsuit on procedural grounds. * * *

The Indiana Constitution has a provision prohibiting special legislation, saying laws should be uniform throughout the state. But lawmakers have gotten around that by using population limits instead of naming specific locations.

The 1985 law in question, for example, allowed a joint city-county airport authority in any county having a population of more than 300,000 but less than 400,000. Allen County was — and still is — the only one of the state’s 92 counties that falls within that range.

The state Supreme Court went along with that approach for years, saying other cities or counties could grow to meet certain population levels. But in 2003, justices struck down an annexation law in St. Joseph County because it was contrary to one applying to the rest of the state.

That raised concerns among lawmakers that hundreds of old laws might be in jeopardy, and because of that, the Fort Wayne case was being closely watched.

But the justices ruled primarily on procedural grounds today, saying 17 years was an unreasonable delay in challenging the law and would harm the airport authority if the lawsuit were allowed to proceed.

Posted by Marcia Oddi on Tuesday, August 02, 2005
Posted to Ind. Sup.Ct. Decisions

Indiana Law - "When is a river navigable?" Part II

Following up on the ILB entry from Sunday, Frank Gray of the Fort Wayne Journal Gazette reports today that the citizens of Mongo did indeed meet with the county commissioners about declaring the Pigeon River navigable. Some quotes:

The people of Mongo, who have long complained they are ignored and shoved around, must be feeling pretty good today.

Someone finally listened to them.

Just listened, mind you, but that’s a victory for them.

Monday morning, about 30 residents, about 10 percent of Mongo’s population, turned out at a LaGrange County commissioners’ meeting. Middle-aged men with shaved heads, old men with wrinkled necks, wearing blue jeans, and old ladies with white hair, showed up to air their gripes. * * *

They presented the commissioners with a petition containing about 100 signatures asking the county to enact a law declaring the Pigeon River a navigable river. This, they say, would eliminate the Department of Natural Resources’ power to restrict activities on the river and even close the river on some occasions.

The story ends on a somewhat promising note for the citizens of Mongo.

Posted by Marcia Oddi on Tuesday, August 02, 2005
Posted to Indiana Law

Ind. Gov. - Daniels is cleared on his use of RV1

"Daniels is cleared on his use of RV1" is the headline to this story today in the Evansville Courier& Press by Jimmy Nesbitt. Some quotes:

ndiana Gov. Mitch Daniels did nothing wrong when he used RV1 to travel to a political fund-raiser last month, the state's inspector general ruled Monday. "... Our investigation shows that the RV was not in any way connected with a partisan event, other than as a means of transport for the governor to get to the location ...," Inspector General David Thomas wrote. Daniels, a Republican, attended a July 19 fish fry in Vincennes, Ind., for Rep. Troy Woodruff, R-Vincennes. Wood-ruff was the House member who changed his vote, allowing the daylight-saving time bill, one of the governor's top legislative priorities, to pass the House.

Courier & Press reporter Jennifer Whitson wrote that people toured RV1, a vehicle donated to Daniels during his 2004 campaign. After Daniels was elected, he donated the RV to the state.

Thomas interviewed Daniels' security escort, a team of Indiana State Police officers, who said no one except the governor's staff entered the RV. Eric Holcomb, an employee of the governor's office who attended the fundraiser, said the RV was parked 100 yards from the fish fry. Holcomb didn't see anyone enter the RV, but if someone did, "it probably would have been a spontaneous and unplanned occurrence as has happened in the past," Thomas wrote. Invitations to the fundraiser did not mention tours of RV1, Thomas said.

Whitson reported that Rob and Kathy Southwood took their twin 6-year-old daughters, Hannah and Heidi, inside the RV. Thomas did not mention the family by name but said his office contacted a family "revealed in the article" who said Whitson's report was false. "With our focus on whether the RV was used to obtain political donations in alleged violation of an ethics rule, the evidence did not even show that members of the public entered the RV for any purpose," Thomas wrote.

Courier & Press Executive Editor J. Bruce Baumann supported Whitson's account of the fundraiser. "We stand behind our reporter as she personally observed ordinary citizens entering and leaving RV1, and therefore we stand behind her story," he said.

For earlier Evansville Courier& Press reports, see the ILB entries here and here.

Mike Smith of the AP also has a story today, titled "Inspector general OKs Daniels' use of RV at event."

Mary Beth Schneider of the Indianapolis Star has a story here. Some quotes:

State Inspector General David Thomas says a complaint by Democrats that Gov. Mitch Daniels violated ethics rules by taking RV1 to a political fundraiser is hogwash.

The Democrats call that a whitewash.

Thomas -- appointed by Daniels to be the state's first inspector general investigating ethics violations and corruption in state government -- said Monday that the governor broke no ethics rules by parking the 34-foot recreational vehicle outside a July 19 fundraiser for Rep. Troy Woodruff, R-Vincennes.

"Our investigation shows the RV was not in any way connected with a partisan event, other than as a means of transport for the governor," the report concludes.

Daniels is traveling on a trade mission to Taiwan and Japan. His chief of staff, Harry Gonso, said Daniels would be pleased but not surprised by the inspector general's decision.

But, he added, the RV won't go to any future political events.

"Going forward, the governor does not intend to take RV1 to political events. Even though it is ethical, legal and would actually save taxpayer money, he sees no sense in fueling a contrived political controversy, or in risking that any more of the inspector general's time would be diverted from important work," Gonso said.

Posted by Marcia Oddi on Tuesday, August 02, 2005
Posted to Indiana Government

Monday, August 01, 2005

Ind. Decisions - Appeals court upholds $39 million judgment

"Appeals court upholds $39 million judgment" is the headline to a brief story today in the Indianapolis Star:

Muncie -- The Indiana Court of Appeals has upheld a $39 million judgment against Outback Steakhouse Inc. in an Indiana couple's lawsuit alleging they were severely injured in a crash caused by a motorist who got drunk at a restaurant's grand opening.

In June 2003, a Delaware Circuit Court jury found in favor of David and Lisa Markley, whose motorcycle was struck by a drunken motorist on July 21, 1997.

The couple alleged the motorist, William Whitaker, Albany, became intoxicated at an Outback Steakhouse in Muncie. Witnesses testified that alcoholic beverages were served free of charge or for as little as a dime at the eatery's grand opening party.

As in its earlier appeals, the restaurant's attorneys focused on former Outback waitress Patrice Roysdon, who testified in a 2001 deposition that Whitaker "appeared fine" at the grand opening. At trial two years later, however, Roysdon said her earlier statements had been false, and Whitaker was indeed drunk.

Outback's attorneys maintained the Markleys' attorneys should have informed them of Roysdon's intention to change her story.

Despite upholding the verdict, the appeals court ruled the attorneys had committed "an egregious breach of their 'absolute' duty" to let Outback's lawyers know about the development as soon as possible.

Here is the opinion, Outback Steakhouse of Florida, Inc., et al v. David D. & Lisa K. Markley (7/25/05).

Posted by Marcia Oddi on Monday, August 01, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - Indiana to join national sex offender database

The Munster (NW Indiana) Times reports today, in a story headlined "Justice Department launches sex offender database: Lack of technology prevents Indiana from listing names on Web site," that:

WASHINGTON | Indiana is three to four months away from joining a national online database that will allow users to search the country's more than half a million registered sex offenders.

Illinois was one of 21 states plus the District of Columbia included in last Wednesday's launch of the National Sex Offender Public Registry, a searchable Web database controlled by the Justice Department's Office of Justice Programs.

Indiana has yet to join primarily because the state did not have the needed technology in place, a spokeswoman for the Justice Department said.

All states were invited by the Justice Department to join the database, which allows users to conduct a free nationwide search for a person based on a name, state, county, city/town or zip code.

Here is the National Sex Offender Public Registry website.

Posted by Marcia Oddi on Monday, August 01, 2005
Posted to Indiana Government | Indiana Law

Ind. Government - More on "Inspector general investigation of Governor's RV use"

The Evansville Courier& Press, which first reported on possible issues with the Governor's use of RV1 (see Friday's ILB entry, here), ran an opinion piece yesterday titled "Blind spot on ethics: Daniels dismisses RV1 flap as being a 'cheap shot'." The lead:

The irony may not be appreciated in the governor's office, but who would have thought that an early target of the state's new inspector general would be the very person who pushed so hard to create the post?

That, of course, would be Gov. Mitch Daniels, who along with Republican legislative allies, pushed through the inspector general bill this spring in what was billed as an attempt to clean up state government.

Posted by Marcia Oddi on Monday, August 01, 2005
Posted to Indiana Government