The Indiana Law Blog: August 2005 Archives

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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.

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 hea

The Indiana Law Blog

Focus is on Indiana law, and on interesting developments in law, government, and more (not just in Indiana).

Wednesday, August 31, 2005

Ind. Courts - More on Judge Pfaff removal

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

Ind. Law - Questions prevail during session on living wills

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

Tuesday, August 30, 2005

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

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

Ind. Courts - Randolph Courthouse story today not encouraging

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

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

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

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

Monday, August 29, 2005

Law - Access to Abortion Pared at State Level

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

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

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

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

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

Sunday, August 28, 2005

Ind. Law - Appointment of child advocates in Indiana

Environment - Stories today on ethanol agri-park

Saturday, August 27, 2005

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

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

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

Friday, August 26, 2005

Environment - Power plant, shooting range

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

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

Environment - GAO Report on Great Lakes Initiative released

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

Indiana Decisions - Arthur Baird v. State now available online

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

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

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

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

Law - "Illinois medical malpractice law faces challenges"

Thursday, August 25, 2005

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

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