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Friday, September 30, 2005

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending September 30, 2005

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending September 30, 2005. There are 43 Court of Appeals cases listed this week.

For earlier weekly NFP lists (going back to the week ending August 19, 2005), check "NFP Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending September 30, 2005

Here is the Indiana Supreme Court's transfer list for the week ending September 30, 2005. Three cases were granted transfer this week; two of these were NFP (unpublished).

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

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to Indiana Transfer Lists

Ind. Courts - Still more on "Plan to link 400 courts hits a wall, again"

Nick Fankhauser, the VP for Product Development at Doxpop LLC, in Richmond, Indiana, has sent me a note about the Court's judicial technology and automation project (JTAC), about which the ILB has most recently posted on 9/26/05 and 9/29/05.

Fankhauser's company, Doxpop, provides internet access to court records in a number of Indiana counties. Access its website here. A quote from the site:

Doxpop provides access to over 3,909,887 current and historical cases from 92 Indiana courts in the Doxpop Network. During the average working day a new case is added every twenty seconds.

Doxpop receives frequent updates from every court we work with. Most courts send updates every ten minutes so the information you see on the Doxpop web site is always current and complete.

The historical case information available varies from three years to twenty years back depending on the jurisdiction. Most courts have at least ten years of historical case information available though Doxpop.

Here is a list of the counties Doxpop serves.

With that introduction, here is what Fankhauser writes in his note to the ILB, in answer to my question of what would/should JTAC do next - open the project up for new bids? His answer:

I hope the Supreme Court notices that many of the software companies in the private sector not only share their commendable goals but have been quietly working to meet those goals during the last 5 years (JTAC actually got started 5 years ago). The counties who have worked with these companies have succeeded while Computer Associates [JTAC's vendor] only predicted success.

A major reason for this success is that competitive pressure and niche markets can produce many solutions to choose from. Both tiny counties like Union (Pop. 7000) and major counties like Marion (Pop. 855,000) can use the market to their advantage to implement a solution that matches their unique local needs while still complying with statewide standards.

It is foolhardy to believe that a single vendor without competitive pressure will serve the needs of both large and small counties with equal focus and attentiveness.

Perhaps it is time to open the door to those who have succeeded and involve them in producing an open market solution that Indiana can be proud of.

Re the oft-reported "fact" that a number of Indiana counties remain in the "dark-ages" with respect to technology, Fankahuser writes:
Although there are some stragglers, all Indiana courts can easily and for a reasonable cost procure the software needed to meet the goals that were set when the "Statewide CMS" project was started. Even the stragglers are not simply "do-nothing" counties -- the counties who are struggling with outdated systems are cautious people who have been waiting for nearly a decade to upgrade their systems because of uncertainty about State requirements.

Although most people are aware of the JTAC statewide CMS project, those who have worked with the courts for some time will recall that before JTAC existed, there was an effort to create standards via the "AIMS" project. This project was started in or about 1995 and at the time, local courts were advised not to upgrade their software until the standards had been produced. The standards were never to my knowledge disseminated to local courts or CMS vendors.

The obvious irony here is that because the local courts have been told for roughly 10 years not to upgrade their software, it might appear to an outsider that left to their own devices, the local courts working with their vendors are incapable of effectively utilizing technology. In fact they are quite capable, and those who have ignored the direction from above to "do nothing" have moved forward on their own and are doing very well.

For examples of this, compare the situation of the Montgomery County courts to the situation of the Clay County Courts. Montgomery decided to help themselves and two years ago, installed a CMS that meets all of the goals outlined in the CMS policy Statement of May 2002. Clay was to be the first recipient of the JTAC CMS and, along with about 12 other counties, they're still using a substandard system while they follow the suggestion to wait for someone else to solve their problems.

Fankhauser's conclusion:
I think we should all support public oversight by communicating with interested parties and encouraging media attention. I hope others will join us in asking JTAC to seriously re-evaluate not just their vendor choice but the entire project. Another message that the planned approach to achieving their goals is essentially unchanged despite years of major setbacks and a radically altered technology will not speak well for JTAC.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to Indiana Courts

Ind. Gov't. - Governor appoints environmental policy assistant

This position was called Executive Assistant for Environmental Policy in prior years; I don't know what it is called now. But Governor Daniels has appointed attorney Kari Evans to the post. I believe she started work on Sept. 12th and have been waiting for an announcement, but have not seen one.

Ms. Evans most immediate former employer was Barnes & Thornburg, where her focus was water quality issues. Prior to that, she was a water quality expert at IDEM. She was highly regarded in both posts.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to Environment | Indiana Government

Law - Large Firms Discover New Marketing Tool: Blogs

"Large Firms Discover New Marketing Tool: Blogs" is the headline to a story today in the National Law Journal.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to General Law Related

Ind. Decisions - Several Court of Appeals rulings today

Among the 8 opinions issued today by the Court of Appeals is a 20-page opinion by Judge Sullivan in Courtney Smith v. Natalie Deem & Susan Stafford, which holds "Because we agree with Deem that Smith did not timely file her Notice of Appeal, we dismiss this appeal."

In a 32-page opinion (including Judge Crone's 4-page dissent), George S. Row III v. Holly Holt, et al., Judge Mathias rules: "Concluding that genuine issues of material fact exist as to “false arrest” and “false imprisonment,” and, therefore, the law enforcement officials are not entitled to qualified immunity, we reverse summary judgment and remand for further proceedings consistent with this opinion."

Another property law case today, 7-page opinion by Judge May in Kevin Hysell & Karen Jones v. Joseph B. Kimmel & Mary Sue Kimmel-Yater reversing the trial court and holding: "As no easement across the Hysell property may be implied and Hysell was not estopped from withdrawing permission for Kimmel to use the driveway, we must reverse the order enjoining Hysell from blocking the path across his property."

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to Ind. App.Ct. Decisions

Law - What is a "holding"?

Professor Lawrence Solum of the Legal Theory Blog had an excellent piece last weekend, as part of his continuing series of the basics of legal theory for beginning law students, on "what is a holding?" A short quote:

It may be obvious, but let's say it anyway. The notion of a "holding" is only relevant because of the doctrine of stare decisis or binding precedent. In common law systems, decisions have precedential effect. It is easy for lawyers--in the United States and other legal cultures descended from the English common-law system--to forget that this need not be the case: in civil law systems, court decisions do not create binding precedents!

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to General Law Related

Law - Local color on confirmation of new Chief Justice of the U.S.

"Roberts sister beams about confirmation" is the headline to this Jim Stinson story in today's Gary Post-Tribune. Some quotes:

Shortly after the U.S. Senate confirmed John G. Roberts Jr. as the nation’s 17th chief justice of the United States, four women applauded on Paw Paw Creek Court in Valparaiso and toasted the man one of them calls her brother.

Kathy Godbey, a nurse at St. Anthony Medical Center in Crown Point and a 26-year resident of the Heritage Valley subdivision on the city’s southwest side, is Roberts’ older sister. * * *

Roberts, the La Lumiere School graduate and former Long Beach resident, was confirmed late Thursday morning by a vote of 78-22, replacing the late William Rehnquist as the next leader of the U.S. Supreme Court. * * *

Unlike other Roberts family members, Godbey stayed in Northwest Indiana long after the family relocated to Maryland.

She married Dustin Godbey, and the couple have two children, Becky, 21, and Katie, 17, a Valparaiso High School senior. Becky attends Butler University.

Kathy and the Roberts family have strong ties to Porter and LaPorte counties.

Although the new chief justice was born in Buffalo, N.Y., in 1955, the family moved to Long Beach, near Michigan City, when John was a child.

John G. Roberts Sr. was a manager at the Bethlehem Steel plant in the 1960s and 1970s.

The parents moved to the East Coast about 1979, and now live in a Baltimore suburb.

The retired couple will be with Roberts for the private swearing-in ceremony, Godbey said.

Godbey couldn’t get to Washington, D.C., in time for the vote, but will fly out today with her family.

There, they will meet up with the parents, the other sisters and Roberts’ own family, and attend a private dinner hosted by friend Dean Colson of Miami. Then the family and others will attend a public swearing-in on Monday.

The Munster (NW Indiana) Times has this story, titled "Locals expect Hoosier Roberts to be fair, impartial: Long Beach native confirmed as Supreme Court chief justice."

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to General Law Related

Ind. Gov't. - BMV publishes draft ID requirements and schedules hearing

The October 1, 2005 Indiana Register contains the proposed new Bureau of Motor Vehicles rules. Access them here. The Digest:

Adds 140 IAC 7-4 to establish standards for operator’s licenses under IC 9-24-9 and identification cards for nondrivers under IC 9-24-16.
This 9/10/05 ILB entry gives background, including:
Next the BMV has to schedule and conduct a public hearing(s) on the draft rule. Public notice of the hearing has to be published in a newspaper of general circulation in Marion County. All this is covered under IC 4-22-2, sections 23, 24, and 26. Section 27 provides that the comments from the hearing(s) must be considered. After complying with the preceding (and other related) requirements, the agency may adopt the rule. See section 29. Thereafter the proposal has to undergo review and approval by the attorney general, the governor, and be filed with the secretary of state. The rule takes effect 30 days thereafter.
The draft requirements look to be the same as those the Court of Appeals declared to be void, not because of their content, but because they were adopted without following the requirements of the rulemaking statutes, including a public hearing.

A single public hearing has been scheduled, for Monday, October 24 at 9:00 a.m., in the IGCS Auditorium. Hopefully, 78-years-old Theresa Clemente, featured in this 9/25/05 Frank Gray column in the Fort Wayne Journal Gazette, will be able to attend to testify on how the current "unofficial" rules (which presumably do not differ from the published "draft rules") operate in the real world. Ms. Clemente, according to the column, was turned away three times from a Fort Wayne BMV office in effort to obtain a photo ID, a requirement for voting in Indiana as a result of 2005 legislation. Some quotes from the story:

On her first visit last July, Clemente brought her Social Security card, voter registration card, property tax bill, utility bill and credit card to the BMV at Southgate. But she was turned away. She needed a birth certificate.

So Clemente went home, got her copy of her birth certificate, and went back.

No, she was told, she needed a certified copy of her birth certificate.

Oh.

So Clemente contacted officials in Boston and after paying $28 got a certified copy of her birth certificate and went back to the BMV, her third trip.

It all went smoothly. She had everything she needed, it seemed. All the papers were filled out and she was sent to the end of the room to get her picture taken.

Then, more bad news. We can’t give you an ID. It says on the paperwork that your name is Grady, but you say it’s Clemente.

Well, I’m married, she said. My name has been Clemente for 53 years now.

For some reason, the staff at the BMV had filled out the paperwork for her ID using the name on her birth certificate, not the name on her Social Security card or credit card or utility bill or property tax bill or voter registration card.

One would think the problem could have been quickly remedied. People might realize that Clemente, like pretty much everyone, wasn’t married when she was born and the BMV would go back and correct the paperwork.

Instead, officials said she needed to produce a marriage certificate.

Clemente was prepared. She had that on hand.

No, she was told. We need a certified copy of your marriage certificate.

Clemente was sent away again.

At this point, Clemente and her husband, who was with her, got a little testy. This is their third trip, and every time they appear at the license branch, she’s told she needs something different. Now this.

Clemente said she asked to speak to a supervisor, and was approached by someone who gave her a yellow piece of paper explaining what she needed to get an ID. It was the first time she had been offered the sheet.

The contents of that "sheet" are presumably what is incorporated in the new draft rule. Unfortunately, according to the article, Ms. Clemente already had submitted everything required on the yellow sheet, but had still been turned away. Perhaps once the BMV has an officially promulgated list of requirements, it will abide by it.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to Indiana Government

Ind. Courts - Corydon attorney suspended

The Louisville Courier Journal reports today that:

Corydon lawyer David Layson, a former county attorney for Harrison County, has been suspended from practicing law for 60 days by the Indiana Supreme Court's Disciplinary Commission.

This is the third time since 1998 that state authorities have suspended Layson's law license -- this time for professional misconduct.

As for more general statistics, the story conlcudes:
The Supreme Court can impose a variety of sanctions against lawyers, and any previous actions are considered. Disciplinary actions against the state's 15,508 active lawyers, however, are relatively rare, said Donald Lundberg, the disciplinary commission's executive secretary.

During the last fiscal year, Lundberg said, 12 lawyers were forced to resign and one was disbarred. The licenses of 23 others were suspended for specific periods or indefinitely, with a variety of conditions placed on the chances for reinstatement.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to Indiana Courts

Environment - More on Gov. Daniels' plan to expand logging

"State to expand logging of forests" is the headline to a story by Lesley Stedman Weidenbener in today's Louisville Courier Journal that explores the pros and cons of the plan. Be sure to check the useful "What's next" sidebar.

Posted by Marcia Oddi on Friday, September 30, 2005
Posted to Environment

Thursday, September 29, 2005

Environment - Stories today

"Dunes group warns of threat to National Lakeshore: Changes to National Park Service policy would downgrade preservation" ist he headline to this story today in the Munster (NW Indiana) Times. Some quotes:

Proposed changes in the National Park Service's policy manual could upend the original intent of the service to protect the nation's natural and cultural areas for future generations, says Tom Anderson, executive director of the Save the Dunes Council.

Instead of maintaining higher priority on the preservation of land, plants and animals, the changes would elevate public use of national park land. Preventing "impairment" of park resources would become just one of several goals. Greater openness to commercial activity within the parks would also be part of the new emphasis.

For Save the Dunes officials, that raises the prospect of off-road vehicles and Jet Skis running rampant at Indiana Dunes and park rangers running ragged trying to police them.

The changes appear in a rewrite of park service policy by Interior Department official Paul Hoffman, who served as a congressional aide to Vice President Dick Cheney and as head of the Cody, Wyo., Chamber of Commerce.

The Hoffman draft is troubling, Save the Dunes President Geof Benson said, because it was done in secret by someone without park service experience and it bypassed the accepted process of input and consultation. In addition, Benson said, the policy manual, which is revised about every decade, was last updated just four years ago.

The Seymour TribTown has a lengthy story today about a public hearing on Rumpke of Indiana's effirts to expand its landfill near Medora. More than 30 people spoke against the request. Some quotes:
MEDORA — New allegations about past and present misconduct by a Cincinnati company hoping to expand its landfill near Medora surfaced during a public hearing Wednesday.

Those allegations included video testimony from a former Rumpke of Indiana employee who said he hauled three loads of waste from a Salem company in 2003 that contained a liquid that had a solvent-like smell and that the liquid burned when lighted. * * *

The DVD containing those allegations came to light during the second part of a two-part public hearing held by the Indiana Department of Environmental Management at Medora High School.

The first part involved a presentation by Rumpke officials, followed by a question-and-answer session with the public, which included members of Jackson County Citizens Against Rumpke Expansion as well as Friends of Rumpke Expansion. The second session involved IDEM taking public comments and concerns about Rumpke’s request. It was conducted by IDEM hearing officer Tom Linson.

Posted by Marcia Oddi on Thursday, September 29, 2005
Posted to Environment

Law - More U.S. legal work moves to India

The Wall St. Journal had a story yesterday (subscription only) on page B1 titled "More U.S. Legal Work Moves to India's Low Cost Lawyers." It reports that:

The practice started a few years ago with simple word processing and filing services filled by nonlawyers. But increasingly, squads of experienced but inexpensive lawyers based in India are doing things ranging from patent applications to divroce papers to legal research for Western clients. * * * "The people to whom you are outsourcing are well-educated and can work at an hourly rate that is 10% of what large-firm lawyers charge."
An earlier ILB entry, from 6/7/04, reported on outsourcing "law office functions" to India.

This brings to mind the 8/24/05 Indianapolis Star story headlined "Court records sent abroad: Trial and hearing tapes were farmed out to Hong Kong for transcription, in violation of rule," quoted in this ILB entry. That story is expanded upon in a front-page story in the Sept. 21-Oct. 4, 2005 issue of Indiana Lawyer, also subscribers only.

Posted by Marcia Oddi on Thursday, September 29, 2005
Posted to General Law Related

Ind. Decisions - Interesting Court of Appeals decision today

Life estates and remaindermen are not topics you read about every day, at least not once you get out of law school. Today, in Scottish Rite of Indianapolis Foundation v. Barbara Adams (9/29/05 Ind.Ct.App.), Judge Baker writes:

Appellant-respondent Scottish Rite of Indianapolis Foundation, Inc. (Scottish Rite) appeals the trial court’s interlocutory order granting appellee-petitioner Barbara Adams’s petition for partition and sale of real estate. Specifically, the Scottish Rite argues that Adams, as a life tenant, has no right to compel the sale of real estate over the protest of the Scottish Rite, as the remainderman. Finding that the sale of the real estate here was not advantageous to both parties and that a life tenant does not otherwise have standing to force the partition and sale of real estate, we reverse the judgment of the trial court and remand with instructions to dismiss Adams’s petition. * * *

To allow a life tenant to force the partition and sale of the fee simple interest in a piece of real estate would be to allow her to convey a greater interest than she actually owns. Thus, it is reasonable to treat life tenants differently from fee simple owners based on inherent characteristics that distinguish them.

In sum, we find that the partition and sale of the real estate was not proper under Indiana Code section 32-17-5-2. We also find that Indiana Code sections 32-17-4-1 and -23 are constitutional and that they prevent Adams as the life tenant from forcing the partition and sale of the real estate. The judgment of the trial court is reversed and remanded with instructions to dismiss Adams’s petition.

In a child-support dispute today Judge Baker wrote:
Jessica’s rent-free living arrangement did not free up money for the support of S.T. To the contrary, Jessica was a young, full-time student, trying to raise a baby, who had no income on which to draw to pay for living expenses. Under these circumstances, the support that she received from her family was not an extra, padded, amount that added to her already-present ability to support herself and her child. To the contrary, the support of Jessica’s family was an absolute necessity in her pursuit of a college degree. The trial court properly took into consideration the totality of the circumstances and determined that the support that Jessica received from her family to enable her and S.T. to live comfortably while she got her teaching certificate—vastly increasing her earning potential—was not additional income to be imputed to her. Given the circumstances of this case, we conclude that the trial court did not err in arriving at this result.

(Robert Thomas v. Jessica Orlando)

Posted by Marcia Oddi on Thursday, September 29, 2005
Posted to Ind. App.Ct. Decisions

Env./Econ. Dev. - Tondu plant rejection lamented

From an editorial yesterday in the South Bend Tribune:

We are disappointed by the St. Joseph County Council's denial of a special use permit for Tondu Corp. to build a coal gasification power plant near New Carlisle. But we aren't surprised.

If the permit had been granted, the project would have moved to the next phase: analysis by the Indiana Department of Environmental Management of the ecological impact of the proposed plant. Concerns about air and water pollution would have been addressed based on facts, not fears and unsupported assumptions.

Because the power plant proposal never made it to the second phase, the ecological impact of the plan remains unknown and the possibility of a major economic boost and a future energy source in this community is lost.

Why aren't we surprised? Because almost no local support for the Tondu proposal was expressed.

Where were the mayors of South Bend and Mishawaka? The business leaders? The building industry that would have benefited tremendously from construction of the power plant? Our state representatives and senators?

Except for Gov. Mitch Daniels, who supported granting the special use permit, leaders' voices were silent on the subject.

For other Tondu-related items, use the search box in the right column.

Posted by Marcia Oddi on Thursday, September 29, 2005
Posted to Environment | Indiana economic development

Ind. Courts - More on "Plan to link 400 courts hits a wall, again"

The ILB has received a copy of an announcement that recently went to the clerks of the various Indiana counties:

At the regional meetings of the Clerks’ Association last week, Mary DePrez, the director of the Indiana Supreme Court’s Judicial Technology and Automation Committee, did not make a report on the statewide case management system. This was because, after completing within the last few weeks a very detailed and systematic analysis of all of the re-quirements and features that need to be included in the statewide CMS, we were engaged in discussions as to the best way to proceed given the amount of work that still needs to be done and the time and money that it will take to do it. These discussions have continued since last week and we are now able to make the following announcement:

Computer Associates, International, Inc. (CA) and the Indiana Supreme Court's Judicial Technology and Automation Committee (JTAC) have been working to build a state-wide computerized case management application for Indiana courts. During the past several months, CA committed additional CA resources and assigned project oversight to a senior-level executive to work with JTAC to conduct a detailed review of the State's requirements. Upon completion of this review, CA and JTAC concluded that it is not in the best interests of either party for CA to support the additional requirements resulting from this review. A factor in this decision was CA’s determination, subsequent to the initial award of this contract, that application development services would no longer be one of its core businesses and as such CA is no longer pursuing business in this area. As a result, CA and JTAC have agreed to a termination of their contract on financial terms mu-tually acceptable to both parties, including a refund of fees associated with this applica-tion development project.

In 2002, after an extensive competitive procurement process, JTAC selected CA to develop and provide to Indiana courts and court clerks a single statewide computer system to help them manage their caseloads and share court information with law enforcement and others who need and use court information. Both JTAC and CA worked very hard on the project but concluded that it was in their mutual interest that JTAC should find an alternate partner. The Supreme Court remains committed to providing Indiana courts with the technology they need and will announce its plans for moving forward on this project within the next 30 days.

CA and JTAC believe that the mutually acceptable terms they have reached will facilitate the continuation of this important project. Two other related and extremely significant and far-reaching projects -- a new partnership between JTAC and the state Bureau of Motor Vehicles to transfer data electronically and development of the Marion County module of the case management system (called JUSTIS.NET) – are not affected by this decision and are continuing without interruption.

A check of the JTAC website this morning, however, shows that it does not reflect the recent decisionmaking, but instead reports:
JTAC Newsletter Top Story: Case Management System Project Back in High Gear

The Indiana Supreme Court's Judicial Technology and Automation Committee (JTAC) remains committed to providing all Indiana courts with a 21st century Case Management System that connects all courts throughout Indiana's 92 counties with state agencies and provides the public with vital information on a wide variety of matters.

Work began on the CMS project several years ago, and it has been some time since you received an update on its progress. There was an interruption in this project while we reviewed the work completed to date to ensure the system met our collective requirements. As a result of this review, we determined that the CMS application needs further customization than originally planned. For example, the Clerk's financial solution will now be a custom-built component of the system. Now that we have determined how best to move forward, work on the project is once again underway.

However, that was the status six months ago. The project has now halted again, for reevaluation, as reported in this ILB entry from 9/26/05.

Posted by Marcia Oddi on Thursday, September 29, 2005
Posted to Indiana Courts

Law - Ohio Firm Seeks to Join the Bigs in Election Law

On Tuesday the ILB wrote that Terre Haute attorney James Bopp, Jr., who has a national campaign finance and election law practice, has, as of the U.S. Supreme Court's announcements Tuesday, two important campaign finance cases pending before the Court this term. (See also this coverage from the following day.)

Today the "Special Interests" column in the Washington Post has an item titled "Ohio Firm Seeks to Join the Bigs in Election Law" that does not mention the Republican-oriented Indiana firm, but does mention an Ohio wanna-be. Some quotes:

Campaign finance and election law certainly seems a natural specialty for a Washington law firm, but there are only a handful of major players: Wiley Rein , Perkins Coie , Skadden Arps , Patton Boggs most often come to mind.

Vorys, Sater, Seymour and Pease , an Ohio-based firm, wants to join their ranks -- and is making a big splash with the signing of Bradley A. Smith , the former chairman of the Federal Election Commission.

The firm had already made a commitment to growing the practice when in the past year it hired Brett G. Kappel , a longtime election-law specialist, to join Randal C . Teague in Washington. Kappel and Teague also lobby, but Smith says he has no plans to do so.

Smith, who worked at the firm before joining the FEC, and Joseph D. Lonardo , managing partner of the D.C. office, say the plan is to create a bipartisan group. They note that Wiley Rein is known for its Republican lawyers and Perkins Coie for its Democrats.

Smith, a Republican, has been known for his strong criticism of much of federal campaign finance regulation. But he says he would be willing to represent Democratic and liberal clients and notes that left-wing bloggers were pleased with his opposition to regulation of their Internet activities.

"By nature, most of what you do . . . is help the client to comply with the law," Smith said. "You better have an argument that fits with law, not with what you would like it to be."

Lonardo said some of the firm's big corporate clients are concerned about complying with the complicated McCain-Feingold campaign finance law enacted in March 2002.

Posted by Marcia Oddi on Thursday, September 29, 2005
Posted to General Law Related

Law - More on hurricane insuance claims

The Washington Post has a long article today headlined "Homeowners Wait for Claims To Be Adjusted: Industry Chokes on Volume of Work." Some quotes:

The one-two hurricane punch of Katrina and Rita has strained the insurance industry's ability to answer phones, investigate claims and get money into the hands of shattered survivors of the storms.

Some 10,000 insurance adjusters are deploying in the Gulf Coast region to handle more than 1 million claims expected to result from Katrina and Rita. But their progress has been slowed by their inability to inspect houses in inaccessible sections of the disaster areas and by the sheer bulk of the claims.

Katrina-related claims are expected to total between $35 billion and $60 billion -- an industry record even on the low end -- and Rita claims could reach $7 billion.

Many policyholders will pick up a major share of costs for their uninsured losses, and down the road, insurance premiums are likely to be higher -- for less coverage -- particularly in the regions where the hurricanes hit.

An insurance industry spokesman said it was too soon to know the extent of rate increases. J. Robert Hunter, a former Texas insurance commissioner who heads the insurance section of the Washington-based Consumer Federation of America, said premiums in some parts of Florida rose between 10 percent and 25 percent after last year's four hurricanes. * * *

Gulf-area residents are getting a crash course in collecting homeowner's insurance, which can be arduous even in normal times. Insurance companies generally require policyholders to fill out a claim form, also called a "proof of loss" form; make an inventory of damaged items; and keep receipts from temporary repairs.

Some insurers pay small advances to displaced homeowners for living expenses even before they are able to inspect the property. State Farm Insurance Cos. says it sent out tens of thousands of $2,500 checks to policyholders who were subject to mandatory evacuation and were not able to return quickly to their homes. Lexington Insurance Co., an AIG unit, says it sends living expenses -- $1,500 or so -- via Western Union to all policyholders making a claim regardless of whether it turns out to be valid.

But for benefits to start flowing, insurance companies usually require a visit to the property by an adjuster, or claims investigator, who estimates the total damage amount, makes a ruling on the cause and sends the paperwork back to the home office for a final decision.

Eaalier ILB entries on hurricane insurance-related issues may be found at: 9/16/05; 9/9/05; 9/8/05; ad 9/4/05. Although we don't have hurricans in Indiana, we do have tornados, and floods.

Posted by Marcia Oddi on Thursday, September 29, 2005
Posted to General Law Related

Ind. Courts - Is Judge Tinder our most interviewable jurist?

"Is Judge Tinder our most interviewable, or most interviewed, federal jurist?" It might seem so, at least on the Internet. IU-Indy law student Josh Claybourn posted this interview with federal (S.D. Indiana) Judge John D. Tinder on his blog, Indiana Barrister, yesterday.

Earlier this year, Judge Tinder was the focus of an entertaining two-part interview in Underneath Their Robes, on 3/4/05 and 3/7/05.

Judge Tinder also appears to read blogs on occasion, and even comment, as shown by this comment he submitted in August 2004 in response to a post in Professor Doug Berman's Sentencing Law Blog.

But the undisputable champion in our circuit is Judge Richard Posner (7th Circuit), who has his own blog, The Becker-Posner Blog, and was featured here in Howard Bashman's 20 Questions for the Appellate Judge at the end of 2003.

The 7th Circuit's Judge Frank H. Easterbrook also participated in a How Appealing 20 Questions, in August, 2004.

Posted by Marcia Oddi on Thursday, September 29, 2005
Posted to Indiana Courts

Wednesday, September 28, 2005

Environment - Several copies of the 2005 Indiana Environmental Statutes are available

The pre-sold 2005 Indiana Environmental Statutes, published by my company, have all been distributed. As of 9/28/05, I have ten extras. They are $30.00 each, plus tax. Let me know if you want one; first come, first serve.

Posted by Marcia Oddi on Wednesday, September 28, 2005
Posted to Environment

Ind. Courts - Supreme Court Commission on Race and Gender Fairness Diversity Summit

The Supreme Court has issued this press release:

Noted civil rights leader and entertainer Harry Belafonte will be one of many highlights at the first Supreme Court Commission on Race and Gender Fairness Diversity Summit, Chief Justice Shepard announced today.

“The Indiana Supreme Court Commission on Race and Gender Fairness is proud to host the 2005 Diversity Summit for attorneys, judges, law enforcement officials and other individuals interested in diversity issues affecting Indiana's judicial system,” said former Supreme Court Justice Myra Selby, who chairs the Commission along with Court of Appeals Judge Ezra Friedlander.

The Summit will be held October 14-15, 2005 at the Madame Walker Theatre and the Indiana University School of Law-Indianapolis.

Mr. Belafonte will speak on October 15th from 12:45 to 1:45 p.m. at the Madame Walker Theatre. Tickets for Harry Belafonte's speech are $25.00 and are available to the public. Tickets can be obtained by calling 317-232-2542. Please mention the Diversity Summit.

Since 1999, the Commission has been working to develop ways to limit bias in Indiana’s legal system. Following extensive study that included random and targeted polls and several public hearings across Indiana, the Commission released a wide-ranging report that will serve as a roadmap toward a more just society. * * *

For further information on the summit, visit the Diversity Summit page.

Posted by Marcia Oddi on Wednesday, September 28, 2005
Posted to Indiana Courts

Environment - Plymouth looks to mark storm water inlets

WTCA-AM (1050 AM, the voice of Marshall County) has an interesting piece about what strikes me as a very good idea -- educate people so that they know that storm water inlets go directly to a waterway, NOT to a sewage treatment plant. Some quotes:

Rick Gaul, Director of Public Works reviewed the results of a Storm Water Survey that the city conducted this summer as required in the MS-4 (Municipal Separate Storm Sewer System). Gaul said that 3,129 were mailed out and 930 or 30% were returned to the city. The simple opinion survey results were surprising. 55% of those who returned the survey believed that storm water goes to a treatment plant before it is discharged into the river and 52% did not know who to contact about storm water quality.

This federally mandated program is trying to educate the citizens on the correct procedures to keep pollutants out of the waterways. Gaul gave several examples of citizens not understand the operation. He said people have been seen downtown dumping grease and soapy water into storm drain inlets. These are direct pathways to the river. The survey results showed a need to mark the storm drain inlets. Gaul showed examples of ways to accomplish this. The recent storm sewer projects on East Jefferson and Michigan Street have cast iron storm drain inlets that have NO DUMPING warnings build right into the casting. In front of St. Michael’s Catholic Church there is a thermo plastic reflective marking example and Gaul also passes around stainless steel disk that can be bolted or riveted on to the drains.

Check out the photos that go with the story.

Posted by Marcia Oddi on Wednesday, September 28, 2005
Posted to Environment

Ind. Gov't. - New York looks into starting database to monitor state contracts

Apropos of the ILB entry Monday discussing (in the second half) Governor Daniels' Executive Order 05-07 - Directive to the department of administration to log written state contracts on the internet, I was interested to learn that the State of New York is starting a database to monitor state vendors, according to this story in the Albany Times-Union.

As I read the story, the problem in New York may be that the State doesn't have enough information about who it is dealing with. The problem in Indiana, if I understand Governor Daniels' objective, is that the public doesn't know who the State is dealing with, how much it is spending, what the terms of its agreements are, etc.

Some quotes from the New York State story:

ALBANY -- Comptroller Alan Hevesi is looking into setting up a comprehensive computer database to track contracts and vendors, and help state agencies avoid doing business with questionable companies.

Hevesi acknowledged his interest in the so-called Vendex system during an Assembly hearing into procurement issues. Vendex, short for the Vendor Information Exchange, was created in New York City in 1990 and used by Hevesi when he was the city's comptroller. * * *

[A] Tuesday editorial in the New York Daily News, called for setting up the system. The paper had reported this week about the state's propensity for hiring firms associated with organized crime. * * *

In January, Hevesi began requiring vendors to submit background data on themselves.

Now, Hevesi is planning a centralized registry, said Ken Pokalsky, director of regulatory programs for the Business Council of New York State. He said the comptroller's staff has been talking with business groups about the plan.

Pokalsky said the council is concerned about how broad the inquiry would be and how much data a company would have to provide. "If you have to go back to the beginning of time, it could be quite burdensome," he said.

Hevesi said he also would support legislation that would allow the state to bar more bidders because of blemished track records. He said he would like legislation that would allow the comptroller to deny or approve contracts of public authorities, which do billions of dollars of contracting.

State law, he said, should raise the threshold for requiring comptroller review of contracts to $50,000 from $15,000, so his staff can focus more on bigger awards. He said the office reviewed 13,700 contracts last year worth a total of $16.6 billion and modified terms of $11.5 billion in deals.

Posted by Marcia Oddi on Wednesday, September 28, 2005
Posted to Indiana Government

Ind. Decisions - Federal judge upholds parks ban on molester

The South Bend Tribune reports today that:

Michigan City's ban on convicted child molester Robert E. Brown from its public parks has been upheld in federal court. * * *

Robert L. Miller Jr., a judge in U.S. District Court in South Bend, ruled last week the Parks Department acted within its bounds when it passed a resolution in 2002 prohibiting Brown from the parks.

Among Brown's arguments were that the resolution violated his right to due process as well as his civil liberties by being labeled a threat to children. * * *

In his 27-page ruling, Miller said Brown's right to due process was not violated because he was given a chance to answer to the allegations at the public meeting.

And, Miller wrote, even though 24 hours' notice may not be sufficient, Brown failed to attend the meeting or attempt to show that he lacked adequate time to mount a defense to the accusations.

Brown denied posing any threat but Miller labeled his activities "suspicious" and grounds for the city to look out for the best interests of children.

This decision is reminiscent of John Doe v. City of Lafayette, where, as reported in this ILB entry from 2/24/05, "In a split en banc decision from July 30, 2004, the 7th Circuit affirmed 8-3 Judge Sharp's (ND Ind.) ruling upholding the City of Lafayette's lifetime banning of convicted sex offender Doe from the City's parks."

The case is Robert Brown v. City of Michigan City (ND Ind., 9/19/05), available, via the ILB, here.

Posted by Marcia Oddi on Wednesday, September 28, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Employment law is focus of Court of Appeals ruling

Among the decisions posted the Court of Appeals today is Cripe, Inc. v. James Clark, an 10-page opinion written by Judge Bailey, with Judge Friedlander concurring. Judge Robb has written a 12-page dissent. The majority opinion ends:

In the present case, the averments contained in Clark’s complaint are insufficient to allege that Cripe purposefully created a working condition so intolerable that Clark had no choice but to resign. See, e.g., Tutman v. WBBM-TV, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000) (recognizing that the doctrine of constructive discharge is limited to egregious cases, such as, for example, where an employee is subjected to threats or repeated racist taunting), cert. denied, 531 U.S. 1078 (2001). Rather, the allegations merely assert that Cripe refused to provide Clark—an installer and service technician of garage doors—with a safe vehicle and that, as a consequence, Clark resigned. Accordingly, the complaint in dispute fails to state a claim upon which relief can be granted. As such, the trial court erred by denying Cripe’s motion to dismiss Clark’s complaint.

For the foregoing reasons, we reverse the trial court’s denial of Cripe’s motion to dismiss Clark’s complaint and remand for judgment consistent with this opinion.

Judge Robb's dissent begins:
I respectfully dissent, as I believe Indiana should recognize the doctrine of constructive discharge as a defense that an at-will-employee can raise in the context of a common law retaliatory discharge claim brought against his employer.

Posted by Marcia Oddi on Wednesday, September 28, 2005
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Some upcoming interim legislative meetings

The Environmental Quality Service Council is meeting tomorrow. As I noted in this entry, "The influential EQSC is where much of the environmental policy is made in Indiana." Tomorrow's meeting will be on energy production from clean coal, landfill gas, ethanol, waste tires, etc. See the agenda here. See the minutes from the 9/13/05 meeting on CAFOs here.

As noted in this editorial in today's Fort Wayne Journal Gazette, the Probate Code Study Commission will meet next Thursday, October 6th. From today's editorial:

The commission, which is entrusted to shape laws that guide people and families in a morally difficult issue, doesn’t pass legislation; however, its recommendations will get serious consideration from the General Assembly. Ultimately, the commission should protect people’s right to determine their fate, whether that is communicated in writing or from a person legally designated to make the decision. * * *

Because medical science’s ability to sustain life is expanding, Hoosiers more than ever ought to have the right to determine the conditions under which they want to live if they weren’t able to communicate those wishes during a medical crisis. This should include a persistent vegetative state, when the quality of life is an issue for some people. And it’s their choice. Not the legislature’s.

Here is a Louisville Courier Journal report on last month's Commission meeting.

Posted by Marcia Oddi on Wednesday, September 28, 2005
Posted to Environment | Indiana Government | Indiana Law

Law - More on "Significant tax ruling may impact Indiana" [Updated]

Over a year ago, on 9/3/04, the ILB posted an entry quoting a story in the Louisville Courier Journal that began:

A tax break used by Kentucky and other states to entice companies to buy equipment and add jobs may be eliminated under a ruling yesterday by a federal appeals court.

The 6th U.S. Circuit Court of Appeals in Cincinnati ruled unconstitutional an Ohio law that gives tax incentives to companies that invest in the state rather than expand out-of-state. The court said the law is unconstitutional because it grants preferential treatment.

Yesterday the U.S. Supreme Court agreed to hear that case. This AP story by Gina Holland reports:
The Supreme Court said Tuesday that it will decide how states may use tax incentives to lure companies to build car plants and other projects, a major test of job creation strategies nationwide.

Justices will review an Ohio tax program that had been used thousands of times over the last decade until an appeals court ruled last year that it was unconstitutional.

The law was challenged by taxpayers who contend that state bidding wars over car plants and other development have gotten out of hand, with taxpayers footing the bill. They sued over an investment tax credit that Ohio gave DaimlerChrysler AG to build a Jeep assembly plant that opened in Toledo in 2001.

The car maker and the state of Ohio urged the Supreme Court to take the case, as did the taxpayers. All sides agree that the case could have a sweeping national impact, with virtually every state having some type of incentive program. * * *

The 6th U.S. Circuit Court of Appeals in Cincinnati ruled a year ago that an Ohio tax break for buying new equipment grants preferential tax treatment to companies that expand within the state over those that expand in other states.

States competing for new employers often include tax credits as part of a package deal. * * *

The cases are DaimlerChrysler Corp. v. Cuno, 04-1704 and Wilkins v. Cuno, 04-1724.

See also this 9/16/04 ILB entry.

[Update 9/29/05] The Louisville Courier Journal had this story yesterday, with additional information:

Terry Lodge, lawyer for the taxpayers who challenged Ohio's tax breaks for a Jeep factory in Toledo, said striking down the incentives "will free all the states from the necessity of engaging in an escalating competition over incentives that deprives them of needed revenues, while gaining a meaningful competitive advantage for none."

Consumer advocate Ralph Nader recruited Lodge and Northeastern University law professor Peter Enrich to challenge Ohio's programs. Nader has argued that tax incentives rob states of funds that could be used to help the economically disadvantaged.

Douglas Cole, Ohio's lawyer in the Supreme Court case, said in that state's appeal that competition for employers is fierce.

"The ruling here hamstrings Ohio in its efforts to participate in that struggle," Cole wrote in the appeal.

While the Supreme Court has agreed to hear the case, lawmakers will continue to promote federal legislation to settle the tax question.

In May, U.S. Sen. George Voinovich, R-Ohio, submitted legislation that would declare tax breaks legal. Enrich, though he opposes the bill, has acknowledged that it would settle the case.

Co-sponsors of Voinovich's bill include Kentucky Democratic Rep. Ben Chandler, who proposed similar legislation last year in the House, and both of Kentucky's U.S. senators.

In a press release yesterday, Voinovich said he would continue to promote his legislation.

"Governments and businesses shouldn't have to litigate cases all the way to the Supreme Court in order to find out whether or not a tax incentive is constitutional," Voinovich said.

Posted by Marcia Oddi on Wednesday, September 28, 2005
Posted to General Law Related

Ind. Econ. Dev. - Trailers flow from Indiana to Gulf Coast

"Trailers flow from Indiana to Gulf Coast: U.S. shelling out millions to shelter 600,000 victims" is the headline to an interesting story today in the Chicago Tribune. It begins:

ELKHART, Ind. -- Four hundred squat white trailers sat on train cars in the Norfolk Southern rail yard Tuesday, waiting for the long trip to the Gulf of Mexico. In Nappanee, 15 miles away, 200 or more are produced each day.

This is what $521 million in Federal Emergency Management Agency contracts looks like: Gulf Stream Coach Inc.'s bare bones Cavalier trailers. * * * Demand couldn't be greater.

"As fast as we can put them on there, they're moving them down there," said Gulf Stream marketing director Steven Lidy, watching the company's trailers being hitched for the ride to the rail yard Tuesday.

The giant award to Gulf Stream for 50,000 housing units is part of unprecedented federal spending to answer one of the basic needs caused by the hurricane disasters of Katrina and Rita: providing an estimated 600,000 displaced people with housing.

The trailers are emblematic of the scale and scope of the federal effort in the region. The spending is a window into the urgent, sometimes haphazard contracting process, much of it done with little or no competitive bidding, like Gulf Stream's contract.

In the nearly one month since Katrina hit Louisiana, Mississippi and Alabama, the federal government has passed out billions of dollars in contracts. At least $1.15 billion of that money has gone toward travel trailers and mobile homes, which are destined for new, temporary towns throughout the Gulf Coast region.

The piece concludes:
Sen. Susan Collins (R-Maine) worries that FEMA hasn't thought through the implications of concentrating large numbers of evacuees in cramped housing.

"I have a lot of concerns ... I'm not sure FEMA has a coherent plan," Collins said. "I'm not sure that cities of manufactured housing are the answer."

Bob Hebert, director of recovery services in Charlotte County, Fla., has seen the problems created by housing people in trailer parks after a hurricane. While he describes the trailers as a "lifesaver" for evacuees immediately after the storm, he said they can quickly turn into a nightmare if there are too many of them and they are isolated from the community.

"The first three or four months, it's an adventure," Hebert said. "But you quickly become an entitlement community. . . . There needs to be a plan to break it down very quickly."

Posted by Marcia Oddi on Wednesday, September 28, 2005
Posted to Indiana economic development

Environment - Fort Wayne creates wetland to combat combined sewer overflows

The Fort Wayne Journal Gazette reports today on the dedication of a swamp. Some quotes:

Mayor Graham Richard dedicated a swamp Monday, capping the end of a two-year, $20 million project to prevent sewage from flooding basements around McMillen Park.

The Camp Scott wetlands may be a swamp, with the usual collection of cattails, frogs and muck, but they are also a stormwater filtration system, naturally cleaning the water of contaminants it collects as it runs to city storm sewers. * * *

The Camp Scott project includes a massive, 2.2 million-gallon underground storage tank that was built underneath McMillen Park to hold stormwater during heavy rains. Pumps then send the water through 4-foot diameter pipes to Camp Scott, where officials took an existing marsh on the former World War II prisoner-of-war camp and enhanced it to handle the stormwater from a 350-acre urban area.

After the wetlands were built, they were filled with plants specifically chosen to clean the water. Federal rules now require stormwater to be clean before it is released, as it can pick up oil from streets and driveways, chemicals from lawns and other contaminants. Officials are still working to complete the sewer separations in McMillen Park neighborhoods.

The Indiana Association of Cities and Towns selected the Camp Scott project for its Community Achievement Award, which was presented Monday.

The Fort Wayne Journal Gazette also carries a companion editorial today that begins:
The city’s Camp Scott project is the antithesis of Rube Goldberg engineering. Instead of a complicated mechanism requiring maximum effort to achieve minimal results, Camp Scott is a relatively simple system that does several beneficial things. With a single project, city leaders were able to solve multiple problems and win a couple of awards as well.

Posted by Marcia Oddi on Wednesday, September 28, 2005
Posted to Environment

Ind. Decisions - Judge denies Indianapolis' move for preliminary injunction in juvenile jail costs suit

The Indianapolis Star reports this morning, in a front page story by Brendan O'Shaughnessy, that:

Shelby Superior Court Judge Russell Sanders dismissed the city's request for a preliminary injunction, saying the county does not have a "reasonable likelihood of success" in its bid to get the state to pick up all of the cost of incarcerating juveniles. * * *

"This was a battle, not the war," said Tenley Drescher-Rhoades, a lawyer for the city. "Our two main legal options are an appeal of the injunction decision or to proceed with the case."
In recent years, the Indiana Department of Correction's juvenile charges have become the county's largest unpaid expense. County officials simply ignored the bills because they said it was the state's responsibility.

For background, see this 9/19/05 ILB entry. See also this 8/27/05 Fort Wayne Journal Gazette story, that reported:
At least 34 Indiana counties owe a total of nearly $90 million under a new state law that requires county governments to help pay the cost of imprisoning youths from their county. * * *

Allen County this month approved a plan to repay its $8 million debt but said that plan could be altered depending on the result of Marion County’s lawsuit. The county’s repayment plan would take an estimated 16 years to fully repay the debt, giving the county time to accrue interest and await the legal result. Allen County officials said there was no point in joining the lawsuit efforts, as it would only add legal fees.

Marion County, which includes Indianapolis, has the largest debt at about $62 million. Its lawsuit asks for that debt to be forgiven along with seeking a refund for $50 million in payments the county has made since 1995.

State law requires counties to share in the cost of housing juvenile inmates from their areas. Local officials, however, have said the law is unconstitutional as they have little control over how many children are sent to state facilities by juvenile court judges or how much the Department of Correction spends on them after they arrive. The state pays the entire costs for holding adult inmates in the prison system. * * *

State lawmakers approved a new law this year that required counties to either pay the detention center bills or face a reduction in state property tax relief payments. * * *

“The taxpayers are being doubled dipped,” Councilman Mike Scott said. “A certain portion of our state taxes that is collected out of our checks is already going toward the Department of Correction to help take care of issues such as this.”

Posted by Marcia Oddi on Wednesday, September 28, 2005
Posted to Ind. Trial Ct. Decisions

Tuesday, September 27, 2005

Law - More on U.S. Supreme Court today grants cert to two campaign finance cases

Expanding upon the entry immediately below, three articles in tomorrow's papers will discuss the U.S. Supreme Court's grant of cert in the Vermont and Wisconsin cases.

Charles Lane writes in the Washington Post:

The first case is a challenge to provisions of the 2002 McCain-Feingold campaign law that prevent corporations or labor unions from buying ads with unregulated money about a specified candidate in the weeks just before an election.

Wisconsin antiabortion activists say their particular proposed ads are genuine efforts to express their views on an issue, not attacks on candidates disguised as issue ads -- or "sham" issue ads the law was meant to regulate. * * *

"O'Connor was the swing vote" in that case, said Rick Hasen, a specialist in election law at Loyola Law School in Los Angeles. "This could provide the vehicle for a more conservative court . . . to reverse that aspect" of the 2003 decision.

The case is Wisconsin Right to Life, Inc. v. Federal Election Commission , No. 04-1581.

The second case accepted yesterday involves three consolidated challenges to a 1997 Vermont law that puts a ceiling on how much a candidate for state office can spend. Under the law, candidates for governor may spend no more than $300,000 per two-year election cycle. Candidates for lieutenant governor may spend no more than $100,000, and smaller limits apply to other offices.

* * * Vermont's Republican Party and other political activists say the law violates their constitutional right to free speech. They note that the Supreme Court struck down expenditure limits on First Amendment grounds in its landmark 1976 decision Buckley v. Valeo , and they argue that the 2nd Circuit was wrong to find that Buckley left some room for laws like Vermont's.

* * * The consolidated cases are Randall v. Sorrell , No. 04-1528; Vt. Republican State Committee v. Sorrell , No. 04-1530; and Sorrell v. Randall , No. 04-1697. Oral arguments are expected in January and decisions by July.

Linda Greenhouse of the NY Times writes about the Vermont case here. Some quotes:
The Supreme Court opened a new chapter today in the long-running debate over the role of money in politics by agreeing to decide whether Vermont's strict limits on campaign spending and contributions are constitutional.

The court's action suggested, although it did not guarantee, that the justices might be ready to revisit their 29-year-old precedent, Buckley v. Valeo, which in equating money with speech has been widely interpreted as ruling out any restrictions on expenditures by candidates. * * *

The law was challenged in federal court by the American Civil Liberties Union and by a coalition represented by the James Madison Center for Free Speech in Terre Haute, Ind. The Supreme Court accepted appeals filed separately by both plaintiffs.

David Savage of the LA Times writes that:
The Supreme Court agreed today to reconsider the free-speech rule that allows well-heeled candidates to spend unlimited amounts of money to win election to public offices.
Read his analysis in full here.

[Thanks to How Appealing for the links]

Posted by Marcia Oddi on Tuesday, September 27, 2005
Posted to General Law Related

Law - U.S. Supreme Court today grants cert to two campaign finance cases

Terre Haute attorney James Bopp, Jr., who has a national campaign finance and election law practice, has announced in a press release this afternoon:

The U.S. Supreme Court agreed today to review two important campaign finance cases (1) from the Second Circuit Court of Appeals upholding in principle Vermont’s mandatory candidate expenditure and contribution limits and (2) from a three judge panel of the D.C. District Court denying an as-applied challenge to the electioneering communication provision of McCain-Feingold. James Bopp, Jr., is lead counsel in both cases.

Vermont Republican State Committee v. Sorrell, No. 04-1530

Vermont law imposes extremely low contribution limits and mandatory expenditure limits on candidates for state office in Vermont. The Chief Judge of the Second Circuit described the contribution and expenditure limits as “laughably low,” and they were intended to drain candidates’ campaign of financial resources. “These extremely low contribution and expenditure limits will have the effect of making candidates bit players in their own elections,” said James Bopp Jr, lead counsel for the Vermont Republican Party.

Wisconsin Right to Life v. Federal Election Commission, No. 04-1581.

The U.S. Supreme Court has also agreed to hear Wisconsin Right to Life v. FEC, which challenges the federal prohibition on corporate electioneering communications, contained in the McCain-Feingold law, as applied to authentic grass-roots lobbying by a non-profit group. An electioneering communication is a targeted broadcast communication identifying a federal candidate during blackout periods before elections.

For more, see Professor Rick Hasen's comments here in the Election Law blog.

Posted by Marcia Oddi on Tuesday, September 27, 2005
Posted to General Law Related

Ind. Courts - Governor denies Matheney's clemency request [Updated]

The Indianapolis Star website is reporting that "Gov. Mitch Daniels denied Alan Matheney's petition for clemency today, clearing the way for his execution after midnight."

Last Friday the Indiana Supreme Court denied Matheney's petition, stating in part:

Having completed the review to which he is entitled as a matter of right, Petitioner Alan Matheney remains convicted of murder and sentenced to death. Execution of the death sentence is set for September 28, 2005, before sunrise. Matheney, pro se, has tendered a successive post-conviction petition and other documents requesting relief from the conviction and sentence. We have jurisdiction because of the death sentence. See Ind. Appellate Rule 4(A)(1)(a). * * *

Matheney has not met his burden of establishing a reasonable possibility that he is entitled to post-conviction relief. Accordingly, we decline to authorize the filing of a successive petition for post-conviction relief, and deny all other relief requested by Matheney.

[Update 9/28/05] "Matheney executed for killing ex-wife: Daniels opted against clemency for murderer" is the headline to this story today in the Indianapolis Star that begins: "Alan Matheney, 54, one of the most notorious killers on Indiana's Death Row, was executed by lethal injection early today at the Indiana State Prison in Michigan City."

Posted by Marcia Oddi on Tuesday, September 27, 2005
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues procedural ruling today

The Supreme Court has issued an opinion in a petition for rehearing in PSI Energy, Inc. v. William Lee Roberts, Jr. & Beverly Roberts on the point of the steps necessary to preserve an issue of sufficiency of the evidence in a civil case.

Posted by Marcia Oddi on Tuesday, September 27, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Jury award believed largest of its kind in state history

The headline in the Munster (NW Indiana) Times reads: "Jury awards $11 million in crash: Lawyers believe compensation's the largest of its kind in state history." Some quotes from the story by Steve Zabroski:

CROWN POINT | A Lake County Superior Court jury has awarded a Crown Point woman and her husband $11 million for injuries suffered in a 2002 truck-motorcycle accident.

The compensation, announced late Friday in Judge Jeffrey Dywan's court after a three-day trial, is believed to be the largest verdict of its kind in state history, lawyers believe.

"The jury was very involved in the case," said Terrence Rubino, who, with Steven Sersic, represented Diana and Robert Goad in the civil case against the man convicted of running them off the road. * * *

Though Clancy was insured, his carrier refused to settle with the Goads, forcing them into a civil suit.

"This was just round one with Clancy's insurance company," Rubino said. "There will likely be years of litigation ahead to collect on the jury's award."

Posted by Marcia Oddi on Tuesday, September 27, 2005
Posted to Ind. Trial Ct. Decisions

Environment - State sheds light on sewage

A front-page story by Tammy Webber in today's Indianapolis Star reports on a new IDEM webpage:

On Monday, the Indiana Department of Environmental Management began posting records of sanitary overflows on its Web site and will update them every Friday.
Access the IDEM Sewer Overflow/Bypass Reports here.

Posted by Marcia Oddi on Tuesday, September 27, 2005
Posted to Environment | Indiana Government

Ind. Gov't. - More on "New I.U. Board of Trustees member criticized by Purdue prof"

John Ketzenberger, columnist for the Indianapolis Star business section, writes today on the controversy over Governor Daniels' selection of former Reilly Industries CEO Tom Reilly Jr. as an IU trustee. Some quotes:

The folks at IU are at it again. The university -- which has fallen in various rankings, missed out on research dollars and watched Purdue's stock rise -- is in need of a shakeup. And one of the key people Gov. Mitch Daniels has appointed to overhaul the place is under attack. * * *

It's a logical choice on a number of levels. Aside from running a global corporation, Reilly has been immersed in education issues, including a long stint as trustee at Butler University and as chair of the Indiana Government Efficiency Commission's higher education subcommittee.

But it's also a loaded one. Reilly was in charge of a chemical company that pleaded guilty for its role in vitamin price-fixing and was fined $2 million in 2000. And the company also has rung up about $100 million to clean up polluted sites in several states.

So at least one professor has notified various media outlets to point out what he thinks is the questionable character of a key appointee. And a blogger with the notorious-sounding site called Reilly Must Resign doesn't miss a chance to carp on Reilly's appointment.

For more, see this ILB entry from 9/19/05.

Posted by Marcia Oddi on Tuesday, September 27, 2005
Posted to Indiana Government

Ind. Law - Rethink protection law

"Rethink protection law" is the title to an editorial today in the Fort Wayne Journal Gazette, referencing a Court of Appeals opinion issued last week and discussed in this ILB entry yesterday. Some quotes from the editorial:

In 2002, the General Assembly narrowed the state’s protective order law in an effort to eliminate an increasing number of nuisance orders issued for disagreements between neighbors and acquaintances. Today the law allows orders in cases concerning stalking or sex offenses. Abusive relationships involving families and workplace violence are also eligible. It may not look like it now, but the original intent for the change made sense: fewer nuisance orders mean judges and law enforcement can focus on volatile situations that require the kind of legal weight a protection order offers. * * *

Laws are seldom perfect, and the protective order is an example. Stephen Johnson, president of the Indiana Prosecuting Attorneys Council, has seen some other loopholes in the protective order statute and he thinks it’s time to reassess the law.

“This isn’t something I’d seen before,” Johnson said about the appeals court decision. “But the law is too restrictive. They need to reconsider the law.”

And the General Assembly should start that re-evaluation when it reconvenes.

Posted by Marcia Oddi on Tuesday, September 27, 2005
Posted to Indiana Law

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

Re "What are the BMV's plans re its void ID rules?" -- apparently the BMV is still enforcing the rules declared void by the Indiana Court of Appeals in Villegas et al v. Joel Silverman (8/12/05)*. (See this ILB entry from 9/10/05 for background.)

This article by Frank Gray, published Sunday in the Fort Wayne Journal Gazette tells about a woman who has made three trips now to the BMV, in an effort to get a photo ID, and still has not been successful.
______________

*A petition for rehearing was filed 9/12/05.

Posted by Marcia Oddi on Tuesday, September 27, 2005
Posted to Indiana Government

Ind. Courts - 7th Circuit hears adult-store debate

Ben Zion Hershberg of the Louisville Courier Journal writes today:

A lawyer for the city of New Albany told federal appeals court judges yesterday that an adult video store opened illegally on Main Street in February 2004, so it wasn't "grandfathered in" when the city adopted an adult-business ordinance later that year.

Scott Bergthold, a lawyer from Chattanooga, Tenn., who specializes in adult-business regulation, argued for New Albany in a hearing yesterday in the 7th U.S. Circuit Court of Appeals in Chicago.

Steve Mason, the lawyer representing New Albany DVD, argued that his client was grandfathered in because proprietor Danny Embry applied for a building permit to remodel the store in late 2003, well before New Albany enacted its adult-business ordinances. * * *

The hearing was requested by New Albany in its appeal of U.S. District Judge Sarah Evans Barker's decision in January ordering the city to let the store open.

In granting New Albany DVD a preliminary injunction against the city, Barker ruled that the city has the right to regulate adult businesses. But she said New Albany applied its rules "too narrowly" to the store, at 601 W. Main St., violating the business owners' constitutional right to freedom of expression.

Barker also said the store qualified as a "pre-existing business" under the adult-business ordinance and should be allowed to operate at its current location for at least two years so the owners can recover their investment.

Mason, New Albany DVD's lawyer, said he was surprised that the appeals court focused on the question of whether the store was grandfathered in.

Indiana law clearly gives businesses the right to keep operating if they are open before ordinances restricting them are enacted, Mason said.

Access Judge Barker's January ruling via this 1/13/05 ILB link. See also this 1/6/05 entry and this 3/8/05 entry on the decision to appeal Judge Barker's ruling.

Download or listen to an MP3 (you can put it on your iPod) of yesterday's oral arguments in New Albany DVD v. City of New Albany here.

Review the briefs here (type in "05-1286").

Posted by Marcia Oddi on Tuesday, September 27, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court to hear oral arguments tomorrow in three cases

The Supreme Court is hearing three sets of oral arguments tomorrow:

Sep 28, 9:00 AM -- Gary Carroll v. State & Roger Childress v. State
Sep 28, 9:45 AM -- Ryan Moon v. State
Sep 28, 10:30 AM -- David Lee v. State
The first set involves two defendants who entered into negotiated plea agreements. "Both defendants appealed their sentences, and the Court of Appeals, in unpublished memorandum decisions, held they had waived their right to challenge the appropriateness of their sentences."

For more information on these oral arguments, access the Court's calendar for September here.

Access the Court of Appeals calendar for September here.

Posted by Marcia Oddi on Tuesday, September 27, 2005
Posted to Ind. Sup.Ct. Decisions

Monday, September 26, 2005

Ind. Gov't. - Inventory of state assets incomplete; more on making state contracts available

Sometimes things aren't as simple as they seem, looking in from the outside. While I was gone, Jennifer Whitson of the Evansville Courier& Press had this story:

INDIANAPOLIS - An inventory of state assets Gov. Mitch Daniels mandated as one of his first actions in office is taking longer than expected and officials can't give a set timeline for getting it done.

The same day that Daniels was sworn in as governor he signed a handful of executive orders, including one that called on the Indiana Department of Administration and the Office of Management and Budget to do an inventory of state assets. The agencies were to compile that into a report that would also identify which assets were "unused, underutilized or other otherwise unnecessary" and prime for selling off.

The order gave July 1 as the deadline for the account but according to Kevin Ober, deputy commissioner of the Department of Administration, the report isn't complete.

Ober said the agency is still compiling a list of everything the state purchased at more than $500 but less that $20,000. * * *

Ober also said there have been some hurdles in tackling the task. Each state agency has a unique and sometime incompatible system for tracking purchases, he said, and part of doing the inventory now has become trying to shift all agencies to a common tracking system.

Another portion of the inventory, documenting and assessing all land and buildings the state owns, was so complicated that the state contracted with a private firm for that portion.

Ober said the goal is still to produce a final report with a listing of assets and recommendations on what can be sold. When asked when that report might be finished, Ober said: "I don't know."

Here it is, Executive Order 05-06: Directive to account for all state assets and to divest of unused or underutilized assets.

The next order issued was Executive Order 05-07: Directive to the department of administration to log written state contracts on the internet. This one requires:

1. As soon as practicable following the date hereof, the significant terms and conditions and other key elements of all written contracts to which the State becomes a party shall be summarized and logged on the Internet.

2. The Department of Administration (DOA) shall, subject to the approval of the Governor, develop policies and procedures to implement the program described in this Executive Order. Such policies and procedures shall prescribe the methodology for indexing the contract information and identify the criteria to be used to determine which contracts, if any, should be exempted from this program.

3. The index of contracts shall be searchable, free of charge, by Electronic Document Summary number, contracting agency, vendor, contract amount, and any other data included in the index.

4. As part of this program, the DOA shall also make available on the Internet the total number of state contracts entered into each year, the total amount of dollars awarded under state contracts each year, and the number and percentage of Indiana businesses and out-of-state businesses to whom state contracts are awarded each year as prescribed by Executive Order 05-05.

5. All instrumentalities, agencies, authorities, boards, commissions, and officers of the executive, including the administrative, department of state government, as well as all bodies corporate and politic set up as instrumentalities of the State, shall cooperate and provide assistance to the DOA in implementing this Executive Order to the fullest extent permitted by law.

6. The Commissioner of Administration shall report to the Governor by July 1, 2005, on the status of the implementation of this Executive Order.

The State has a long way to go in meeting this goal, also. As I noted in this 9/2/05 ILB entry:
A list of "State of Indiana Active and Approved Contracts as of 9/2/05 [now only 9/6/05, so it is somewhat out-of-date]" is available here, at the Department of Administration site. You are given the option to view or download an HTML or Excel version. Be forewarned that these files are very large, the HTML version is nearly 8 MG. This is important information, but with very little effort, the State could make the HTML table sortable and searchable, which would make it useful information. Of course, that would be just the start.

Posted by Marcia Oddi on Monday, September 26, 2005
Posted to Indiana Government

Ind. Decisions - Student’s restraining order ruled groundless

Niki Kelly of the Fort Wayne Journal Gazette wrote a long story Friday headlined "Student’s restraining order ruled groundless." Some quotes:

INDIANAPOLIS – Last November, Homestead High School [Fort Wayne] officials found a disturbing photo in a freshman boy’s locker of a female classmate, her face marred by numerous pellet holes and fake blood dripping from her eyes.

The words “Ha Ha Ha” were handwritten on the picture. Letters, photos and stories of her and other girls were also found in the boy’s possession or on his laptop. The word “Kill” was printed on two days in the boy’s planner next to specific students’ names.

But the bullet-riddled photo – plus unwanted calls and visits to one of the girls’ homes – was not enough for a protective order, the Indiana Court of Appeals ruled Thursday.

The appellate court reversed the two-year order sought by the parents of one of the girls, a 16-year-old sophomore, and granted last December.

The girl’s father was shocked by the decision, saying the court should have erred on the side of caution given the culture of school violence. * * *

The appellate court also noted in its opinion that the Indiana legislature has narrowed the instances in which protective orders can be issued in recent years and the facts of the case were not sufficient under the current statutory scheme.

The 2002 changes were largely aimed at eliminating a flood of protective orders being issued for fights between neighbors and acquaintances over various issues. The new law calls for protective orders to be issued in stalking cases or sex offenses. Abusive relationships involving families also are eligible, as are cases in which workplace violence is an issue.

Because this was designated a Not for Publication (NFP) opinion via Appellate Rule 65(D), it is not available online, although, as it is a public record, you may request it by name at the Clerk's office. Because the Clerk now makes available the weekly list of NFP opinions, one may find this opinion listed as the second entry (D.L. v. C.L. - 9/22/05) on p. 5 of last week's list.

Posted by Marcia Oddi on Monday, September 26, 2005
Posted to Ind. App.Ct. Decisions

Ind. Courts - Plan to link 400 courts hits a wall, again

Last March 8th the Indianapolis Star had a story titled "Plan to link 400 courts hits a wall: Costly software glitch halts effort to computerize records statewide," reported here in the ILB. To quote from that story:

The problem: Software designed by contractor Computer Associates International Inc. -- already paid more than $6 million by the state -- doesn't work. No one knew it would fail until 21/2 years into the project, said members of the Indiana Supreme Court's Judicial Technology and Automation Committee, which is in charge of the project. * * *

The breakdown surfaced in December, as Marion County officials tested a piece of software designed for Indiana civil courts. They found it lacked a critical element -- the ability to keep tabs on court fines and costs. * * *

Members of the automation committee, which includes Supreme Court justices and trial court officials, have backed away from a timeline for launch, which originally was six years.

They expect some answers in the next six months -- the "time out" that project managers have taken for some soul-searching. "This is a very comprehensive reassessment, but it is not starting over," Mathias said. * * *

The state committee overseeing the project has turned to the woman who started to clean up the scandal-plagued Indiana Bureau of Motor Vehicles, Mary DePrez, to salvage the courts project. * * * Sullivan tapped DePrez, who once worked for his wife at the state's Family and Social Services Administration.

Well, the six months is over. As reported in a story Sept. 22nd in Newsday:
In December, after the first run of the software was tested for Indiana civil courts, state officials discovered it could not track court fines and costs, according to a report in The Indianapolis Star. The plan had been to link Indiana's 400 civil and criminal courts, a $74-million project CA had carried out on a smaller scale in Florida, the paper said.

After that first test, "We discovered the software [CA] had hoped to adapt to Indiana did not work and could not work for us," said Mary DePrez, who was hired earlier this year to oversee a review of the project for the Indiana Supreme Court's Judicial Technology and Automation Committee. A more thorough review of the project this summer led both sides to conclude that tailoring the software for the state would mean it wouldn't run until December 2007, at the earliest, she said.

CA, she said, fulfilled its half of the bargain by sending a high-level delegation to Indiana to review the feasibility of salvaging the project.

"Upon completion of this review, CA and [the state technology committee] concluded that it is not in the best interests of either party for CA to support the additional requirements resulting from this review," CA spokesman Bob Gordon said yesterday in an e-mail. "A factor in this decision was CA's determination, subsequent to the initial award of this contract, that application development services would no longer be one of its core businesses."

CA won't pursue future customers in that market, Gordon wrote.

DePrez said her committee will take 30 days to assess the project before it begins to talk with other software companies to finish it. "A lot has changed with technology in the past three years," she said.

Here is the Indianapolis Star's story from Sept. 21st, which reports:
As part of the termination -- said to be by mutual agreement -- Computer Associates has agreed to refund $7 million, $1 million more than it was paid for the job, said Mary DePrez, who oversees the project for the Indiana Supreme Court's Judicial Technology and Automation Committee.

Computer Associates said in a written statement that the agreement allows the project to go forward with a partner better suited to the needs of the state.

A quote from an AP story published Sept. 22nd in the Fort Wayne Journal Gazette:
Allen Superior Court Judge Fran Gull, who was recently appointed to serve on the committee, said Wednesday that the termination of the contract should not slow down the project and in fact may speed it up. So far, court employees from across the state have provided basic information about what is necessary for a new program, she said, and the committee at this point simply needs to find a new vendor to design it.
Right.

See also these ILB entries on the state-wide case tracking system from 3/10/05 (existing Indiana case-tracking systems) and 3/23/05 (funding).

Posted by Marcia Oddi on Monday, September 26, 2005
Posted to Indiana Courts

Ind. Courts - Marion County pretrial diversion program under challenge because of non-waivable fee

"Petty criminals can walk, for a price: Program unfair to poor, public defenders tell court" is the headline to this story this morning in the Indianapolis Star by Kevin Corcoran. Some quotes:

f you commit a minor crime like shoplifting in Marion County, you can essentially buy your way out of trouble and have the charges dismissed.

A pretrial diversion program -- similar to ones in at least 76 other Indiana counties -- permits people to pay a $150 administrative fee to erase the charges.

But for those who cannot afford the cost, a guilty plea or trial are the only choices.

"This is just blatant discrimination against poor people," said Kathleen M. Sweeney, a Marion County deputy public defender. "Because they're poor, they're treated differently."

Sweeney and other local public defenders have asked the Indiana Court of Appeals to declare unconstitutional Marion County Prosecutor Carl Brizzi's refusal to waive the program's mandatory administrative fee of $150 when defendants cannot pay. * * *

In the program, first-time misdemeanor offenders pay the fees, admit guilt and attend daylong behavior-modification classes covering topics such as the evils of stealing. The classes cost an extra $80, for fees totaling $230, but the $80 fee can be waived in exchange for community service.

The appellate court could rule on the program at any time.

The Marion County appeal could cause a statewide ripple because at least 77 of Indiana's 92 counties offer some form of pretrial diversion, according to reports compiled by the Indiana Supreme Court's Division of State Court Administration. These counties, including all metro-area counties, collected $5.2 million in fees in 2003, the most recent year for which figures are available. * * *

Diversion programs are common nationwide because they help prosecutors lighten their caseloads. However, refusing to waive fees for indigent defendants or requiring them to perform community service is unusual, said Thomas Geraghty, a Northwestern University law professor and director of the school's Bluhm Legal Clinic, which represents poor clients in civil and criminal cases.

"That seems a flat-out violation to me of the equal-protection clause of the U.S. Constitution," Geraghty said. "I've never heard of anything like that." * * *

In the appeal, Marion County's public defenders argue defendants like Vicki D. Evans are victims of unequal justice. Evans was arrested in a Meijer store last fall. She is accused of stuffing six DVDs in her purse and hiding grooming supplies in a box on her shopping cart.

In Marion Superior Court, a deputy prosecutor told the 46-year-old Far-Eastside woman that her inability to pay on the spot to join the pretrial diversion program meant she would have to plead guilty or go to trial.

For background, see this ILB entry from 5/26/04.

Posted by Marcia Oddi on Monday, September 26, 2005
Posted to Indiana Courts

Environment - More recent stories

Septic systems. The Monticello Herald Journal reported here last week that the "New septic ordinance passes first step." Some quotes:

White County is moving closer to adopting its own septic onsite sewage disposal ordinance that will, among other needs, provide standards and guidelines for septic tank installation. * * *

The ordinance will provide a certification program for contractors and individuals who would desire to install their own septic tanks. It also outlines requirements for sewer connections and private onsite sewage disposal systems.

A confusing story from the Kosciusko County Times-Union headlined "Barbee Residents Hear From State Health Dept. Director" caught my eye, as it quoted "Health department director Bob Weaver" at length, who is not the Indiana state health director/commissioner or even in their phonelist. The story also reports:
Weaver said the Indiana department of Environmental Management can mandate a sewer system and that State Rep. Dave Wolkins (R-Winona Lake) was chairman of the department.
CAFOs. The Richmond Palladium-Item reported last Thursday:
The Wayne County Board of Commissioners isn't quite ready to approve the special exception ordinance dictating where large farm operations can go in the county.

It will send the proposed ordinance requiring a special exception for confined feeding operations (CFOs) back to the Wayne County Advisory Plan Commission at its Oct. 5 meeting. The plan commission will take up the issue at its Nov. 17 meeting.

The commissioners want the plan commission to reconsider one item: the setback distance of 660 feet from any existing residence, business, public recreation area or golf course for manure application or confined feeding operation placement. They would like the plan commission to reconsider the setback based on the type of manure application that is taking place. Manure applications include injecting the waste several inches below ground or spreading it on top of the ground.

More on Tondu. From the Sept. 23rd LaPorte County Herald Argus:
SOUTH BEND — While the formal meeting where a proposed coal-gasification plant was voted down took less than an hour, the group formed to oppose the power plant hopes its cohesiveness lasts.

The St. Joseph County Council voted against Tondu Corp.’s proposed electricity-generated power plant Thursday by a vote of 7 to 2 — drawing loud applause from an audience of about 300. * * *

The vote came a week after the council voted to table any decision until wording addressing residents’ environmental concerns was written into the proposal for Tondu’s special-use permit.

Even the inclusion of those environmental limits, however, didn’t matter.

Joe Tondu, president and owner of Tondu Corp., was at last week’s meeting, but wasn’t present Thursday night. Company representatives who did attend the meeting left quickly after the council’s vote and couldn’t be reached for comment today.

Even those council members who were in favor of the project said they didn’t make the decision lightly.

“It’s been one of the most difficult decisions I’ve ever had to deal with,” said Andrew Kostielney, R-District B. “This issue is a land-use issue … is this an appropriate use for this property?”

Kostielney pointed out the property is currently zoned manufacturing and a special-use permit had already been approved for Allegheny Energy. He also said he worried about the possible economic loss to St. Joseph County’s tax base.

For other Tondu and coal gasification stories, use the search box in the right column.

Posted by Marcia Oddi on Monday, September 26, 2005
Posted to Environment | Indiana economic development

Ind. Courts - State increases cap on small claims suits

"State increases cap on small claims suits" was the headline to this story Saturday in the Madison Courier. Some quotes:

For 29 years, people filing claims in small claims courts in Indiana could seek only a maximum of $3,000 in each claim. A lawsuit for any greater amount of money had to be filed in circuit or superior court.

Now that has changed. The Indiana legislature this year doubled the amount permitted in each small claim to $6,000. But there is a catch: The filing fee, which previously was $35 for each claim, has been increased to $70. In addition, there is a $10 charge tacked onto that fee for each additional person named as a defendant in a small claim. For example, if there are two defendants, the fee will be $80.

Small claims courts handle legal disputes in which limited money settlements are sought, or where one person seeks a court mandate for another person or entity to take some kind of action.

Jefferson Superior Court Judge Fred Hoying has been in charge of this county’s small claims court since small claims courts began in Indiana on Jan. 1, 1976.

“I’m pretty sure the $3,000 limit had been in effect since the start of Indiana’s small claims court system,” Hoying said. The doubling of the amount of money a person can seek in a small claim is thus an updating to catch up with inflation. * * *

“The higher fees are meant to help cover the administrative costs, of which the sheriff’s fee is the big one,” Hoying said.

But he said the higher filing fees also will help to pay for salary raises judges received in Indiana this year, plus some other court expenses.

Posted by Marcia Oddi on Monday, September 26, 2005
Posted to Indiana Courts

Environment - Some recent stories

Rose Acres in North Carolina. A quote from a North Carolina paper, the Washington Daily News:

Indiana-based Rose Acre Farms has begun work on a 4-million-hen egg-laying operation near the Hyde County community of Ponzer. The scale of the farm is unprecedented in North Carolina and had resulted in a lengthy permitting process -- more than three years -- before initial water quality permits were granted. During that time, considerable tension developed among state officials, conservation organizations and residents of Hyde County, eager for a badly needed boost to the local economy. * * *

Among the biggest hurdles Rose Acre has faced is reducing the level of ammonia generated by 4 million chickens -- up to 5 million pounds a year by industry estimates. That number has been substantiated by data collected at a Rose Acre farm in Indiana.

The company, however, had led the state as well as conservation organizations to believe it could make substantial reductions in those emissions through new technology and best management practices. The company had even developed its own feed formula which proved successful in cutting emissions by half or more. So confident was Rose Acre it pledged to "lead the industry in developing and implementing techniques to minimize ammonia emission from the Hyde County facility."

Following state meetings with Rose Acre officials, a public hearing and extensive review of Rose Acre documents, the state granted the company a water quality permit that included detailed requirements on site monitoring to ensure the operation didn't threaten already nutrient-sensitive waters surrounding the Albemarle Peninsula.

An intriguing aspect of this story, like the earlier one from Nov. 17, 2004 quoted here in the ILB, is the level of detail and the parallels to CAFO concerns in Indiana.

Logging in state forests.
Indianapolis Star columnist Dan Carpenter has a piece yesterday titled "Cashing in on what's priceless." Some quotes:
Last May, the commissioner of the Indiana Department of Natural Resources sought to spike the rumor that the new administration planned to double the amount of logging on state-owned forests.

"That's a lie," Kyle Hupfer told preservationists and journalists gathered at a contentious timber auction at Morgan-Monroe State Forest. But while there had been no directive at that point, he added, there was a possibility of some sort of increase.

Last week, the possibility took on a number. Not twofold. Fivefold.

Insisting that the massive cutting, which could reach up to 70 percent of new annual growth, would serve the health of the woods as much as the wealth of the timber industry, Gov. Mitch Daniels joined Hupfer in announcing a drastic revision of forestry management practices.

Among its various provisions for speeding up logging, boosting timber revenues and trimming costs, the plan calls for ending the protection of stands around reservoirs and withdrawing longstanding DNR technical assistance from half the state's private forest owners, the little guys who have 10 acres or less. * * *

Believe it or not, there is an Indiana Environmental Protection Act. It requires, among other things, that "unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations."

A citizens' group called the Indiana Forest Alliance has a lawsuit pending against the state, arguing that it has violated the act by sponsoring excessive commercial logging in state forests. David Haberman of IFA said last week he wasn't sure yet how the new plan might affect the suit, but he did volunteer that "Liquidating the people's forest for the governor's budgetary program" is, in his opinion, illegal.

A reading of the statute would not appear to refute him. It demands consultation with every affected state and federal agency, plus the public, before any state official issues any "detailed statement" bearing environmental impact.

Hupfer disagrees that the forest plan contravenes either state law or the laws of nature. Opponents say this bombshell never would have survived a public comment process and still won't sell anyway.

What is this about? It is the Indiana "NEPA" act, found at IC 13-12-4. Unlike the federal NEPA, the state environmental impact statement (EIS) requirement applies only to "state action" -- i.e. actions by state agencies (such as Indiana's DNR or DOT), while the federal NEPA impacts actions by private entities. See particularly IC 13-12-4-5.

Controlled burning.
The Elkhart Truth has an interesting story by Megan "Gem" Thompson about using controlled fires to "make prairie land beautiful again." A quote:
There are typically two burning seasons in a year, late March to late May and late September to late November. Much preparation must go into conducting a prescribed burn. While most trained fire fighters respond quickly to extinguish a fire, EnviroCorps will wait patiently to start one. Weather conditions must be favorable, with the relative humidity, wind direction and speed, temperature and precipitation all within a small proximal frame of variation.

All tools must be readily available, such as drip torches, fire rakes, backpack water tanks, and proper protective clothing.

Burning permits must be applied for and obtained from the Indiana Department of Environmental Management.

A public notice must be sent out to notify community members that a burn will be taking place. Once the fire has been set and is under control, it must be monitored closely and extinguished when it reaches the boundary of an unprescribed area. A process called mop-up must take place after the burn to ensure all fuels are completely extinguished, and this can sometimes take as long as or longer than the burn itself.

Posted by Marcia Oddi on Monday, September 26, 2005
Posted to Environment

Sunday, September 25, 2005

Ind. Courts - Local judges

[Slowly catching up here since I was in a "dial-up only" part of the country for much of last week.]

"Four apply to serve as judge for county's sixth Superior Court" was the headline to this story in the Terre Haute Tribune-Star that begins:

Four Vigo County lawyers have applied to serve as judge for the county's new sixth Superior Court, said Brad Rateike, a spokesman for Gov. Mitch Daniels.

Candidates are Christopher J. Dailey, 42, in private practice; Michael J. Lewis, 41, who serves as Terre Haute City Court judge and Title IV-D commissioner; Raeanna Moore, 39, a lawyer in the Bopp, Coleson & Bostrom law firm; and James R. Walker, 52, chief deputy in the Vigo County Prosecutor's Office.

The governor's office received applications until Wednesday.

The general counsel's office for the governor will schedule interviews of the applicants, Rateike said, and make a recommendation to the governor.

Daniels expects to name a judge by mid- to late November. The court will open Jan. 1, 2006. The appointed judge would have to seek election in 2006 for the office. A Superior Court judge is elected for a six-year term.

"Deputy prosecutor appointed as Carroll County judge" was the headline to this AP story early last week:
Gov. Mitch Daniels appointed Donald Currie, chief deputy prosecutor of Carroll County, as a judge of the Carroll Circuit Court on Tuesday.

Currie, in his sixth year as chief deputy prosecutor in the county northeast of Lafayette, will succeed Judge Joseph Carey, who is resigning effective Oct. 1.

Posted by Marcia Oddi on Sunday, September 25, 2005
Posted to Indiana Courts

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending September 23, 2005

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending September 23, 2005. There are 41 Court of Appeals cases listed this week.

For earlier weekly NFP lists (going back to the week ending August 19, 2005), check "NFP Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Sunday, September 25, 2005
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending September 23, 2005

Here is the Indiana Supreme Court's transfer list for the week ending September 23, 2005.

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

Posted by Marcia Oddi on Sunday, September 25, 2005
Posted to Indiana Transfer Lists

Tuesday, September 20, 2005

Law - Judicial Conference Supports Citing Unpublished Opinions

A news alert from Law.com reports that:

The federal judiciary's policy-making board endorsed Tuesday a sweeping rule change that would allow lawyers to cite unpublished opinions in federal appeals courts nationwide as of 2007, ending a practice that brought charges of a hidden justice system against major appellate courts. The Judicial Conference also voted not to take a position on whether the 9th Circuit should be split in two. But members agreed to oppose any circuit-splitting bill that does not provide adequate funding to cover costs.
The feds are different from the states (see posting about the State of NJ immediately below) -- the feds "unpublished" opinions are in fact published, at least online. Their issue is whether they may be cited. Tony Mauro of Legal Times writes:
The citation rule change, if ratified by the Supreme Court and untouched by Congress, would end a practice that brought charges of a hidden, unaccountable system of justice against some of the nation's largest and most important appellate courts. The 2nd, 7th, 9th and federal circuits ban citation of unpublished opinions outright, while six other circuits discourage it.

Passage of the resolution by voice vote followed "a great deal of debate," said Judge Carolyn Dineen King, chair of the executive committee, at a post-meeting news conference.

She said passage was eased by an amendment introduced at the meeting that would make the change prospective only, meaning that lawyers will be able to cite only those unpublished opinions issued after Jan. 1, 2007. King also stressed that individual circuit courts will be able to set their own rules about the precedential value unpublished opinions can be given.

That last line is somewhat troubling.

For an ILB backgrounder on all this, see this 7/13/05 entry, for starters.

Posted by Marcia Oddi on Tuesday, September 20, 2005
Posted to General Law Related

Law - "Appellate court begins to put 'unpublished' rulings on Web"

"Appellate court begins to put 'unpublished' rulings on Web." In New Jersey!

Some quotes from this story in The Star-Ledger, the Voice of New Jersey (minor registration requirement):

Each year New Jersey appeals courts issue about 3,800 decisions, but only a tenth of them are published in the law books and on the judiciary's Web site.

By law, the rest are still public documents. In practice, it is next to impossible for anyone other than the lawyers handling those cases and reporters at the Statehouse to find them. For the rest of the public, they might as well be secret.

That is about to change. Today the judiciary is scheduled to begin posting its "unpublished" decisions on its official Web site, making them available worldwide via the Internet. * * *

The "unpublished" rulings will still have a decidedly second-class status. Published appeals court rulings are the law of the state and every trial judge must follow them. Unpublished rulings decide a particular case but set no legal precedent. Judges are free to ignore them. [same in Indiana]

That two-tiered system developed decades ago when state appeals courts decided that if they were not selective about what they published, library bookshelves and the law itself would collapse under the accumulated weight.

But unpublished opinions are often newsworthy in their own right. Lawyers also can use them to try to sway a judge, provided they play fair. They cannot pick the unpublished rulings that help their case and ignore others that hurt it.

Stern said some big or specialized firms with the time and money stockpile unpublished rulings affecting their particular area of the law.

"This way, everybody has equal access and they can keep whatever they choose to keep," Stern said. * * *

Ronald Chen, an associate dean at Rutgers School of Law in Newark, said, "The more access to judicial reasoning, whether they call it published or unpublished, the better."

About 80% of the Indiana Court of Appeals opinions are Not for Publication. Until a few weeks ago, it was difficult even to timely locate the names of the NFP rulings. Without the name, one could not request a copy of an opinion or look it up in the docket. Thanks to an arrangement with the Clerk of the Indiana Courts, the ILB is now hosting the Clerk's weekly list of the NFP opinions. That is "Step 1" in Indiana.

Posted by Marcia Oddi on Tuesday, September 20, 2005
Posted to General Law Related

Env. & Econ. Dev. - Elkhart rezoning receives approval

The 9/3/05 ILB had an entry (second item) on a proposed rezoing of Elkhart County. On 9/16/05 the ILB had an entry on a proposed comprehensive land use plan for Elkhart County. Both quoted from the Elkhart Truth.

Today Thomas Bona of The Truth reports:

GOSHEN -- With the need for more industrial space on one side and the concerns of longtime homeowners on the other, the Elkhart County commissioners approved a controversial rezoning Monday that one said was "the best we could do."

A 46-acre piece of farmland north of C.R. 40 soon will be used for some sort of manufacturing, linking to the growing Maple City Industrial Park.

Listening to several neighbors complain about existing noise, light and traffic, the commissioners made the property owner agree to a 400-foot buffer, plus landscaping and other conditions. The area closest to homes can only be used for light industry or inside storage. * * *

Despite the rezoning getting a favorable recommendation from the plan commission, 11 neighbors spoke against it Monday.

"We're looking at you guys for protection here," said Steve Ciesielski of C.R. 40. "I think that's part of your job, too, not just trying to grow the industrial base of the county."

Besides being bothered by existing problems, neighbors were worried about what happens when industrial expansion leaps over them toward the Goshen Municipal Airport to the south. Several said they didn't want to be forced out of their homes; many had been there for decades.

But Bill Kuhns, who is marketing the rezoned property for FM Stone Commercial, said it makes sense that the land between Goshen's industrial parks and the airport eventually become industrial.

Posted by Marcia Oddi on Tuesday, September 20, 2005
Posted to Environment | Indiana economic development

Ind. Decisions - Supreme Court denies transfer in Porter County landfill case

The Munster (NW Indiana) Times reports today:

The Indiana Supreme Court has brought an end to plans to build a 354-acre landfill in Porter Township.

The court opted last week not to hear an appeal in the case, which leaves developers with no further options, according to attorney Debra Lynch Dubovich. She represents a group of opponents going by the name of Porter County Residents Opposed to Unhealthy Dumps or PROUD. * * *

The debate centered on a former county ordinance that allowed for landfills on agriculturally zoned land if a special exception was granted by the board of zoning appeals, she said. The BZA denied the request in this case and thus it never rose to the level of state review of the proposed landfill itself.

"It never got off of the zoning issue," Dubovich said.

The county since has revised its ordinances to limit landfills to industrially zoned land, she said. * * *

The developers had asked the Indiana Supreme Court to reverse the May state Appellate Court ruling that upheld the local rejection of the proposed landfill at County Roads 550 South and 250 West.

The Porter County Board of Zoning Appeals overstepped its powers and expertise when it rejected the proposed landfill in April 2002, Sechen said at the time.

The approach encroached upon the authority of the state and federal expert agencies charged with regulating landfills, according to the transfer request.

The petition filed by the Lake County Trust challenged the Appellate Court's ruling, which said Porter Superior Judge Bill Alexa was correct in upholding the BZA's rejection of the landfill.

For background, see this ILB entry from 5/24/04, quoting from an earlier NWI Times story that: "Porter Superior Judge Bill Alexa has upheld a decision by the county board of zoning appeals to reject a proposed 354-acre landfill in Porter Township."

[I'm having trouble finding the Court of Appeals ruling.]

Posted by Marcia Oddi on Tuesday, September 20, 2005
Posted to Environment | Ind. Sup.Ct. Decisions

Ind. Gov't. - "County 'threatened' after CAFO denied"

Sunday the Muncie Star-Press reported on a letter from Andy Miller, the commissioner of the Indiana State Department of Agriculture, to The Blackford County commissioners. See the ILB entry here.

Today Seth Slabaugh of the Star-Press reports:

HARTFORD CITY - Blackford County commissioners felt threatened by the state's director of agriculture after the county rejected a proposed dairy CAFO (concentrated animal feeding operation).

"We were upset because we were kind of threatened (in a letter)," Commissioner Robert O'Rourke said Monday. "I've never met the man. He's never talked to us about anything. I don't think he had all the facts."

If Blackford County is unwilling to consider CAFOs or other new agri-business, "ISDA is committed to help steer new operations and expansion of existing operations to other counties," Andrew Miller, director of the Indiana State Department of Agriculture, wrote to commissioners in a letter dated Sept. 9.

"Is Blackford County unwilling to consider new operations or expansion of existing operations to become CAFOs?" Miller asked in his letter.

Commissioners say before they could respond to Miller's letter, which he asked them to do by Sept. 30, Miller was discussing the letter on the Brownfield farm radio network.

O'Rourke said the commissioners believed that was disrespectful.

On Monday, the commissioners sent Miller two letters. The first letter, authored by O'Rourke, explained that, because a large number of citizens expressed concerns about the impact of CAFOs, the commissioners amended the zoning ordinance to provide that CAFOs would be allowed as a special exception, not a permitted use, in agricultural districts.

Since then, only one proposed CAFO - Oolman Dairy, housing 2,000 cows - has applied for a special exception. Oolman "so completely failed" in its presentation of evidence to the Blackford County Board of Zoning Appeals that the application had to be rejected "as a matter of law," O'Rourke told Miller.

"It would be inappropriate to reach any general conclusions based upon a single circumstance, particularly when you may not have been informed of all the facts," O'Rourke wrote.

The second letter was signed by O'Rourke and the two other commissioners, livestock owners Fred Walker and Larry Hile. It criticized Miller for publicly attacking Blackford County before consulting the commissioners and getting all the facts.

"We regret that you appear to have decided to adopt an adversarial position with respect to our county without even waiting for our response," the three commissioners wrote.

Posted by Marcia Oddi on Tuesday, September 20, 2005
Posted to Indiana Government

Ind. Courts - Several stories today

"Annex option revived for Randolph Courthouse" is the headline to a story by Joy Leiker today in the Muncie Star-Press. Some quotes:

WINCHESTER - Randolph County is running out of options when it comes to the ongoing saga of its courthouse.

Now more than three months removed from a controversial decision to demolish the 128-year-old building, county commissioners are left to reconsider an option that would do more than save the courthouse. It also would include renovations and the construction of an annex on the south side.

This revelation came Monday, just two weeks after commissioners decided to pursue either a rental or purchase agreement with Wal-Mart Realty for the retailer's old, 54,962-square-foot store on the east side of town. The space was to be configured to house all courthouse offices on a temporary basis during the construction of a new courthouse.

But the Wal-Mart plan apparently has fallen apart. Commissioner Drew Wright, who has been negotiating on the county's behalf with Wal-Mart, said he believes the building is being bought by someone in Kentucky.

This is but the beginning of a lengthy and informative story. For background, type "Randolph County courthouse" in the search box in the right column.

"Johnson County court officials get OK to request more staff" is the headline to a story today in the Indianapolis Star. Some quotes:

Franklin -- As Johnson County continues to grow, so does the need for additional court staff -- including judges -- to handle an increasing amount of caseloads. That's why court officials on Monday asked for the County Commissioners' endorsement to address a state board that governs the establishment of a new judge.

The commissioners unanimously acknowledged the need for more court staff, setting the stage for court officials to meet with the state Commission on Courts next month.

Posted by Marcia Oddi on Tuesday, September 20, 2005
Posted to Indiana Courts

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

On 2/27/05 the ILB referred readers to a fascinating feature by Maureen Hayden of the Evansville Courier& Press, involving rare manuscripts, including a book thought to have once been in Leonardo da Vinci’s personal library, bearing marginal notes some attribute to Da Vinci. Two Evansville attorneys figured in the story. (Unfortunately, the link to her earlier story is no longer active.)

Today Ms. Hayden has a follow-up story that begins:

Vanderburgh County court officials hoping to get their chance at cracking a local version of the "da Vinci code" may be out of luck: A lawsuit over a manuscript purported to contain the scribblings of 15th century genius Leonardo da Vinci is on hold and may land in another court.

The lawsuit, filed last year in Vanderburgh Circuit Court, is expected to be automatically "stayed" because the defendant in the case - a world famous art dealer who claims to own a piece of the Dead Sea Scrolls - has filed for bankruptcy. The defendant, Bruce P. Ferrini of Akron, Ohio, filed for Chapter 11 bankruptcy protection late last week in Ohio. A bankruptcy filing stalls almost all litigation against a debtor until the bankruptcy matter is resolved. Ferrini was sued by an Evansville couple last year, who contend he breached a contract to try to authenticate and sell the manuscript.

Posted by Marcia Oddi on Tuesday, September 20, 2005
Posted to Indiana Law

Law - Settlements in Kentucky coal-waste lawsuits

The Louisville Courier Journal reports today:

INEZ, Ky. -- Twelve Martin County families are the latest to settle a lawsuit with Martin County Coal Corp. over damage from the spill of more than 300 million gallons of coal-mining waste in October 2000.

With yesterday's confidential settlement, the company has reached more than 450 out-of-court agreements over the breach of its slurry impoundment pond.

The spill sent slurry washing over private land, and into Wolf and Rockcastle creeks and the Coldwater, Levisa, and Tug forks of the Big Sandy River.

None of the cases has gone to trial. More than 100 lawsuits are pending.

For background, see this ILB entry from 9/16/05.

Posted by Marcia Oddi on Tuesday, September 20, 2005
Posted to Environment | General Law Related

Monday, September 19, 2005

Ind. Courts - More on Terre Haute Court's closing - bankruptcy court to remain open until 11/08

The Indianapolis Star has a little more information today on the closing of the S.D. Indiana's location in Terre Haute.

The bankruptcy court will continue to operate and will remain in the federal building downtown until the building is turned over to Indiana State University in November 2008. * * *

The district also has courthouses in Indianapolis, Evansville and New Albany and has had five judges since 1978.

In February, judges asked Congress to add a sixth judge after a study found the district's judges had the third-heaviest case load among the 94 federal districts.

Posted by Marcia Oddi on Monday, September 19, 2005
Posted to Indiana Courts

Ind. Decisions - Trial judge to rule in fight over juvenile corrections costs

Martin DeAgostino writes today in the South Bend Tribune:

INDIANAPOLIS -- A Shelby County judge has promised to resolve one facet of a county-state showdown over juvenile corrections costs by the end of the month, according to a lawyer for Marion and St. Joseph counties.

Both counties, plus Clark County, have sued the state over financial responsibility for juvenile offenders in state correctional facilities. The counties, which owe millions in back payments, have claimed in legal filings that the court should relieve them of their debts because the correctional system is a state responsibility.

The case is before Shelby Superior Judge Russell J. Sanders III, who heard arguments Friday about injunctive relief that Clark and Marion counties are seeking in the case.

Sanders promised to decide that part of the case by month's end, according to Indianapolis lawyer Geoffrey Slaughter.

The injunction would block state officials from collecting the money by intercepting scheduled payments of property tax relief credits to the counties. Lawmakers authorized the interceptions in the new budget bill, which directed counties to establish payment plans with the state or face the intercepts.

Posted by Marcia Oddi on Monday, September 19, 2005
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - New I.U. Board of Trustees member criticized by Purdue prof

The Bloomington HeraldTimes had a lengthy Mike Leonard column Sunday [registration required] headed "IU trustee's firm ran afoul of the law." It begins:

Running an enterprise as big and complex as Indiana University is a tough job - too tough for some people, it might be suggested, based on the shortcomings IU's trustees have demonstrated over the past couple of decades.

Gov. Mitch Daniels clearly must have realized this when he tapped the blunt and assertive Thomas E. Reilly Jr. this year as his gubernatorial appointment to the IU board.

Reilly never attended IU but brings a unique business background to the institution.

In May 2000, while Reilly was chief executive officer of Reilly Industries, his company pleaded guilty to violating antitrust laws in what one Purdue University business professor described last week as participation in "the mother of all cartels," operating in virtually every continent on the planet.

"This was no run-of-the-mill crime," said John M. Connor, professor of industrial economics at Purdue. "This is as serious a corporate crime as tax evasion or any number of other corporate crimes under federal law."

Posted by Marcia Oddi on Monday, September 19, 2005
Posted to Indiana Government

Ind. Decisions - Can a council grant a multiyear employment contract that extends beyond the terms of a majority of its members?

The Indiana Court of Appeals issued its opinion today in the case of Town of Merrillville, et al v. John Shelhart (9/19/05).

The initial ILB entry on this case, from 10/30/04, includes this quote from the Gary Post Tribune:

At issue is whether a council can grant a multiyear employment contract that extends beyond the terms of a majority of its members. In March 2003, five of seven council members who hired Shelhart lost their seats. New members fired Shelhart as chief and mounted a legal challenge questioning the validity of the old contract. They are refusing to pay Shelhart the $125,000 his contract stipulates.

[Attorney David Westland, counsel for Shelhart] emphasized that he doesn't dispute that Shelhart can be fired by a new council, but he said that council should follow the provisions of the contract and pay Shelhart $125,000 in severance pay. He cited cases of precedent where school boards issued contracts with superintendents that extended 'way beyond' the terms of sitting board members.

Westland said that's because such contracts are made between the employee and the entity itself, not distinct members of the entity. Like a school board, Westland argued, the council is a governing body of officials elected to four-year terms. He said the council already has a practice of giving lengthy service contracts to agencies like the Lake County Solid Waste District. They�ve run through multiple terms of shifting councils, he argued.

[Attorney Steve Bower, the town�s representative] countered that a service contract is different from an employment contract. He downplayed Westland�s school board parallel, saying the police chief's position was more like a town-hired attorney than a superintendent.

Bower cited an Indiana case where a court ruled that municipal officials could not contract with an attorney beyond their seated terms. He said much like attorneys, police chiefs share a confidential relationship with elected officials and therefore must serve at the officials' discretion.

"An old council cannot bind a future council. It runs counter to the discretion given by the state," Bower told Pete. Bower said the council members who issued Shelhart's contract had no assurance they would retain their seats and unfairly made decisions that would affect the town past their elected terms. Bower said the right of new members to choose upper-ranking policymakers and staff was taken away.

The most recent prior ILB entry on this dispute is here, dated 4/23/05.

Unfortunately, the clear issue in this case has become part of a confusing procedural dispute. In today's decision, Judge Darden's 12-page opinion concludes:

We note that the Town’s brief makes clear that its primary goal is to challenge the validity of the Employment Contract. We believe that equity demands it be allowed to do so. However, it also remains that the Town made another claim in its complaint, and there has been no determination that Shelhart is entitled to judgment as a matter of law on the Town’s challenge to the validity of Resolution 570. Because such a determination is one of law, we are concerned about the possible implication of statutory limitations on the reappointment of law enforcement officers, such as Indiana Code section 36-8-4-7 (maximum age for appointment), and on promotion in rank. The fact that this second matter requires resolution further supports our conclusion that relief from judgment is necessary and just in this case.

The Town sought relief, the authority for which lies within the equitable discretion of the trial court. Our supreme court “has stressed that ‘[e]quity supplies what equity requires.’” The town acted promptly in first seeking to appeal the trial court’s order of November 5, 2004, and then to seek relief from an order that effectively foreclosed its appeal of that order. Equity aids the vigilant. Based upon the circumstances presented and upon equitable principles, we find that the trial court abused its discretion when it did not grant the Town’s motion for relief and allow the action to continue in fieri to a final judgment on all claims. Reversed and remanded. [cites omitted]

MATHIAS, J., and CRONE, J., concur.

Posted by Marcia Oddi on Monday, September 19, 2005
Posted to Ind. App.Ct. Decisions

Environment - Small farmers and the right-to-farm act in New York State

Here is an interesting feature from an "alternative newsweekly of the New York Capital Region" called Metroland.net. "Homebuyers seeking a peaceful country life can make uneasy neighbors for the region’s remaining small farmers" is the descriptor. Some quotes:

‘As our nonfarming neighbors increase, it’s become necessary to remind everyone that farming is not a beautiful thing,” begins Bill Hoffay during the public comment period of a recent Town of Sand Lake board meeting. Tucking his faded, mesh-backed hat under one arm and speaking with gruff intonation, he leans forward into the microphone, noticeably concentrating on the pace at which he reads his prepared statement.

Hoffay is in attendance to voice his support for a recently proposed right-to-farm law, which, he claims, will allow local farmers to weather the storm of development around the region. With more people making the move from nearby cities and suburbs to rural surroundings (and some of those rural surroundings evolving, in turn, to suburbs), farmers like Hoffay have begun finding themselves more frequently at odds with their new neighbors and, in some cases, questioning their future in the transforming region.

“It was all farmland when I was growing up, but in the last 10 to 25 years, [development] has spiked around here,” shrugs Hoffay, leaning against the frame of a large barn door a few evenings ago at his family’s Rensselaer County dairy farm. “With the city just a few minutes away, people who work there just get off at [Interstate 90’s] Exit 8, see the fields and the grass, and decide they want a home in the country.”

“Every piece of land we’ve got is surrounded by houses now,” he continues.

The article doesn't talk about mega-farms.

Posted by Marcia Oddi on Monday, September 19, 2005
Posted to Environment

Ind. Gov't. - Feature on FSSA head, Mitch Robb

The Fort Wayne Journal Gazette today has a feature by Niki Kelly on Mitch Robb, head of the state's largest agency, the Family and Social Services Administration (FSSA), "the state agency most notably known for providing Indiana’s Medicaid services."

Posted by Marcia Oddi on Monday, September 19, 2005
Posted to Indiana Government

Ind. Law - Advocates seek to revive proposed gay-bias ban

A story by Brendan O'Shaughnessy on the front page of today's Indianapolis Star, headlined "Advocates seek to revive proposed gay-bias ban," includes these quotes:

The battle over a proposal to ban discrimination against gays in the workplace and housing market in Marion County is quietly heating up, nearly five months after local officials voted against the idea. * * *

In the weeks after the council finishes its budget vote scheduled for today, it may revisit the issue, inviting a national culture war into its normally quiet chamber. * * *

The debate is familiar to most Americans: One side says homosexuality tears at the foundation of American families and shouldn't become a special legal class equivalent to race or gender. The other says gays and lesbians deserve equal protection and freedom from persecution over their sexual orientation.

A proposal to ban discrimination based on sexual orientation or identity failed in an 18-11 City-County Council vote in April that crossed party lines.

Current laws protect all workers from discrimination based on race, religion, age and several other factors. The anti-discrimination ordinance would protect gay and transgender people from being fired or denied housing because of their sexual orientation or gender identity.

Talley was one of five Democrats to vote against the measure last spring, maintaining then that he had seen no evidence of discrimination against gays and lesbians. * * *

Scott Schneider, a Republican City-County Council member and an opponent of the ordinance, said there is little evidence of a problem.
"Homosexuality is a lifestyle choice, and to elevate that to protected status is not good law," he said. "I'm sure people have been fired because of tattoos or jewelry they wear, but we shouldn't make that a special legal class." * * *

But Nytes [the ordinance's sponsor, Jackie Nytes] and Scott Keller, the only Republican supporter of the ordinance in the spring, know they need just four votes to turn an 18-11 defeat into a 15-14 victory. They already have picked up one vote in Republican Lance Langsford, who said his military and personal experiences have convinced him the country needs more tolerance.

Keller said most of the opposition e-mails he receives are form letters generated by conservative lobbying groups and sent by an out-of-state computer server.

Ordinance supporters are planning more small-group meetings with lawmakers who opposed the legislation last spring because they say the sessions allow a more personal connection than e-mails.

I am trying to locate a copy of the proposal, and will post it here. [Here it is.]

Posted by Marcia Oddi on Monday, September 19, 2005
Posted to Indiana Law

Sunday, September 18, 2005

Ind. Law - Law is unclear, but officials disagree over who caused charges to be dropped

"Law is unclear, but officials disagree over who caused charges to be dropped" is the headline of this column today by Nancy J. Sulok in the South Bend Tribune, about the law relating to special prosecutors. This story updates Sulok's column from Sept. 1st, reported in the ILB here (2nd item).

Posted by Marcia Oddi on Sunday, September 18, 2005
Posted to Indiana Law

Environment - More on Tondu vote put on hold

Updating this ILB entry from Sept. 14th, the South Bend Tribune reports today that: "The next pivotal date in the saga of a Texas-based company's plan to build a coal gasification plant in St. Joseph County will come Thursday." More:

That day, members of the St. Joseph County Council will vote on whether or not to approve a special use permit for the $1 billion facility, which has garnered protest from area residents.

If the permit is approved, Tondu officials will still have to go through a permitting process with the Indiana Department of Environmental Management, a process which company officials say could take up to nine months.

According to information from IDEM, "IDEM will review the application to ensure that guidelines for all health and technology based standards established by the U.S. EPA are met.

"The specific requirements of the air permit will depend on factors that have not been finalized, however the permit will identify all applicable air pollution control requirements, layout what is required to comply with those requirements and will contain monitoring, record keeping and reporting provisions to ensure that the facility is in compliance on a day-to-day basis." * * *

After all permits are approved, Tondu managing partner Jim Ford said, groundbreaking could begin within 18 months, with the plant online by 2010.

The South Bend Tribune also has a feature today by Adam Jackson on coal gasification, headlined: "Is coal gasification the fuel of the future? Dwindling oil supplies expensive." The long and informative piece concludes:
But is coal gasification the right thing, both for New Carlisle and the nation? There are plenty of arguments both in favor and against the concept.

Tom Sparrow, a Purdue

University professor who heads up the school's Center for Coal Technology Research, said coal gasification holds a lot of promise, including the possibility of using the process to create synthetic fuel for cars and trucks, as well as the potential to allow greenhouse gases created in the process to be sequestered and stored, preventing possible global warming.

But it also, he said, poses a lot of questions.

"I've been told that it is really hard to tell if you have removed all of the mercury from the gas stream," he said. "If you filled up the Astrodome with pingpong balls, it would be like trying to find the three pink ones mixed somewhere in the pile."

Other obstacles that coal gasification will have to overcome are economic. First, IGCC plants cost from 10 percent to 20 percent more to produce electricity than traditional coal-fired plants do, a difference that will show up on consumers' electric bills. Furthermore, it could be difficult to find investors who are willing to back the technology, especially after OPEC burned alternative fuel investors in the 1980s by flooding the market with cheap oil.

But the ultimate battle, Sparrow said, is to convince the public that they need it. Especially those members of the public who live and work near the plant.

"Everybody kind of knocks the ("not in my backyard") guys," he said. "But I'd be asking the same kind of questions.

"So, the question becomes: How do you convince people that this is the right decision to make?"

Posted by Marcia Oddi on Sunday, September 18, 2005
Posted to Environment | Indiana economic development

Ind. Decisions - Report on Marion County Judge Zore's ruling in employee termination case

John Ketzenberger, the Indianapolis Star business columnist, writes today:

George Buskirk was in for a big surprise when he signed a one-year noncompete agreement with local insurance company International Medical Group on Feb. 28. Three business days later, IMG fired him.

Ouch! For months, he couldn't get another job in the area because he had agreed not to compete with the company.

But a judge ruled this month that IMG couldn't enforce the noncompete against Buskirk, who was a producer in the company's marine insurance line. The reason? IMG had decided to fire Buskirk in January, nearly six weeks before he signed the noncompete.

The unique case could test the notion of good faith in business dealings. Employers in Indiana can fire people for any reason, as long as it isn't discriminatory. If the Buskirk case goes further, however, it could break new ground in how the state views employer/employee relationships.

Buskirk didn't challenge the noncompete agreement. He argued that the timeline -- deciding to fire him before he signed the noncompete -- wasn't fair. It's the timeline that Judge Gerald Zore noted when he ordered the preliminary injunction.

And it's that timeline that could open the door for judicial review of how companies and workers interact in termination cases. The case may not be settled, although no further hearings are yet scheduled.

Buskirk's attorney, Edward DeLaney, called the case "simple," and said it "should have been resolved quickly."

Posted by Marcia Oddi on Sunday, September 18, 2005
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - State lobbying plan comes under scrutiny

The Fort Wayne Journal Gazette has a lengthy story today by Niki Kelly headlined "State lobbying plan comes under scrutiny: Executive lobby rule-making limits considered." It begins:

State officials are considering watering down a proposed rule that would require lobbyists to register with the Indiana Department of Administration when trying to influence the executive branch.

State agencies have broad power to make temporary and permanent rules that often can have as much effect on an industry or the public as a law passed by legislators.

The lobbyist proposal is part of Gov. Mitch Daniels’ campaign pledge on ethics to hold those who lobby the executive branch to the same registration requirements as the legislative branch. Thirty-five states already do so.

There is nothing in the rule that precludes communication with state officials, but it does require a form to be filed once a year that identifies who is lobbying whom and for what.

According to the proposal, any person who is employed and receives payment exceeding $1,000 a year for the purpose of lobbying the executive branch must file with the state Department of Administration – an agency with the primary function of guiding state government contracts for goods and public services through the system.

There are many exceptions, such as an attorney representing a person on a tax matter, a person acting on his or her own behalf and any communications with the Indiana Economic Development Corporation.

Dozens of lobbyists, lawyers, businesses and associations around the state have criticized the rule, which was the subject of an Aug. 23 public hearing.

Pulling back

The proposal applies to awarding a contract, lease or other spending of state funds, but the focus of many complaints was that it would also apply to the state’s rule-making process.

For instance, the Family and Social Services Administration handles rules regulating home child-care providers; the Indiana Gaming Commission approved a rule allowing it to collect larger fees from riverboat casinos; the Bureau of Motor Vehicles is in the middle of adopting rules defining what documents Hoosiers need to obtain a driver’s license; and the Indiana Department of Environmental Management regularly puts rules into place regarding air-quality requirements for business.

Susan Gard, deputy commissioner and general counsel for the Indiana Department of Administration, said scaling back or redefining the rule-making section is under consideration.

“A lot of the rule-making will be out of it without naming it specifically,” she said.

Many of the comments submitted to the state about the guidelines included concerns that those giving testimony at a public hearing on a proposed rule could be required to register as lobbyists.

There is, however, a way around that problem without gutting the text, according to Julia Vaughn, policy director for the citizens’ lobbying group Common Cause Indiana.

She suggests they clarify that any comments or action taken in meetings subject to the state’s public access law would be exempted from the lobbying rule but that other behind-the-scenes negotiations and pressure would still be applicable.

“For a lot of industry, rule-making is the biggest part of what lobbyists do,” Vaughn said. “The public would be missing a big piece of disclosure if that is removed.”

Here is the proposal, LSA #05-123. As noted in the Fort Wayne Journal Gazette story, the public hearing on this measure took place August 23, 2005. What remains next, as shown in the left column of this chart, is for the agency to adopt the rule pursuant to IC 4-22-2-29.

Posted by Marcia Oddi on Sunday, September 18, 2005
Posted to Indiana Government

Law - Illinois completely bans cameras in courtrooms

An AP story today in the Evansville Courier & Press reports, in a story date-lined Springfield, Illinois:

Illinois news organizations thought they had a winning formula this time for getting cameras and microphones into state trials.

They pointed out that technological advancements make the equipment less intrusive. They agreed to restrictions on what would be recorded. They noted that most other states allow recordings and that it helps ensure accurate reporting.

But the courtroom doors remain closed.

The Illinois Supreme Court rejected their request Thursday to allow taping of trials, upholding a long tradition of limiting reporters to ink and paper.

Where reporters see taping trials as a way to improve accuracy and give the public a better understanding of the legal system, the Supreme Court sees it as a potential distraction. * * *

Illinois is one of only seven states that completely bar taping of trials, according to the national Radio-Television News Directors Association. Nearly 20 states give judges broad discretion to allow taping, and the rest impose some restrictions.

In a story from 6/17/05, the NY Law Journal reported:
On Thursday, the New York Court of Appeals upheld the state's 53-year-old ban on cameras in the courts, flatly rejecting Court TV's invitation to stake independent state constitutional ground in favor of electronic access to trial proceedings.

The court found that a 1952 law banning cameras from the trial courts easily survives both federal and state constitutional muster -- even if a strict scrutiny standard were applied, which it said was not necessary here.

Additionally, the court made clear that the press has no greater right of access to the courtroom than the general public, that the state Legislature and not the courts should decide if televising trials is in the public interest and that in some applications New York's historically expansive free speech provision covers no more ground than the First Amendment to the U.S. Constitution. It also stressed that the right to a fair trial outweighs any right of access afforded either the public or the press.

Thursday's ruling was a total loss for Court TV, with the court declining to address the media company's argument that judges have discretionary power to decide on a case-by-case basis if cameras should be allowed in their courtroom. A handful of trial judges have embraced that position, occasionally admitting television and still photographers. Their authority to do so was undercut by this decision. * * *

The ruling leaves New York as the only state with an absolute ban on cameras, at least television cameras, in the courts.

Court TV has this on its FAQ page:
Q: Are cameras allowed in all courtrooms?
A: Most states allow cameras in the courtroom. The exceptions are South Dakota, Indiana and Mississippi. Most state laws leave it up to the trial judge to decide whether he/she will allow a camera in the courtroom.

Federal courts do not allow cameras. An experiment that allowed cameras in certain federal courts ended and the Judicial Commission, which establishes policy for federal courts, voted not to renew the experiment. Court TV is working to get the commission to reconsider its ruling.

Each of the above stories seems to get it slightly different.

What about Indiana?
Readers may remember this ILB entry from Sept. 7th, quoting a story from the Munster (NW Indiana) Times that began: "Cameras aren't allowed in Indiana courtrooms -- with one exception." That story was about a documentary film maker who has been authorized by the Indiana Supreme Court to film juvenile court proceedings.

According to this article from the National Center for State Courts (NCSC):

Cameras are not permitted in Indiana trial courts, and cameras are allowed in the intermediate appellate court only with special permission. In 1996 the Indiana Supreme Court began allowing print and television news cameras into its oral arguments as long as users followed specific rules. For example, cameras must be mounted on a tripod and must remain in place during the entire argument.

And there is another exception. The Indiana Supreme Court itself webcasts its own oral arguments, and many Court of Appeals arguments, via its own system. And it archives them. They are also available for purchase, here.

The NCSC article cited above points to new features of the Supreme Court's webcasts (that I, for one, did not know about):

As our collection of archived oral arguments started to grow, we looked for a way to make them even more useful to both lawyers and the general public. “Courts in the Classroom” recently launched a searchable database of these videos. End users can search by keyword, cause number, or a party’s name to identify particular oral arguments that might meet their educational or legal objectives. Keywords are created with both the lawyer and the student in mind, for example, both “driving while under the influence” and “drunk driving” are entered as keywords. A one-sentence summary of the court’s action regarding each case is entered once the case is resolved; this includes a link to the opinion or other action.
This is very cool.

Posted by Marcia Oddi on Sunday, September 18, 2005
Posted to General Law Related | Indiana Courts

Law - More on Ohio sex-offender ban challenged

Updating this ILB entry from Sept. 7th is this story today in the Fort Wayne Journal Gazette. Reporter Kara Hull's story begins:

Like many other county officials in Ohio, Paulding County Sheriff David Harrow is playing the waiting game.

The northwest Ohio county has two registered sex offenders living closer to schools than the law allows, but Harrow is waiting to act on the violation until a decision is handed down from a federal court on whether the two-year-old law is constitutional.

The Cincinnati-based Ohio Justice and Policy Center is defending a group of six registered sex offenders in a U.S. District Court case that claim Ohio’s law – requiring that sex offenders can’t live closer than 1,000 feet from a school – is unconstitutional. The law, which has been on the books since July 31, 2003, was changed in April to allow city law directors and county prosecutors to file court proceedings forcing registered sex offenders who live within 1,000 feet of a school to move.

Before the April change, only neighbors, landlords and school districts could take offenders to court.

In Indiana, registered sex offenders are barred from living within 1,000 feet of school property only while on probation.

The Policy Center group had tried to stop the enforcement of the Ohio law in April, but U.S. District Court Judge Sandra Beckwith denied a temporary restraining order. Beckwith heard arguments in the case last week; her decision is pending. Three attorneys from the Ohio attorney general’s office and several southern Ohio county prosecutors took the state’s side in the case.

Posted by Marcia Oddi on Sunday, September 18, 2005
Posted to General Law Related

Ind. Gov't - State ag leader questions CAFO denial

Seth Slabuagh of the Muncie Star-Press reports today, in a story headed "State ag leader questions CAFO denial" and datelined Hartford City, that:

Andy Miller, the commissioner of the Indiana State Department of Agriculture, wants to know Blackford County's position on concentrated animal feeding operations (CAFOs), ethanol plants and other agri-business.

In a letter dated Sept. 9, Miller warned that the state agency was committed to steering new and expanding agri-business to other counties if Blackford County is unwilling to consider them.

Miller sent the letter after the Blackford County Board of Zoning Appeals halted the proposed Oolman Dairy CAFO to house 2,000 cows.

Fred Walker, a Blackford County commissioner, said commissioners planned to discuss the letter at their meeting on Monday.

"It upsets me that his letter gives us until Sept. 30 to respond and they leaked it to the press before we could respond," Walker said. "We believe he (Miller) has been misinformed about what's going on up here, and it's inappropriate to conclude that we have not supported CAFOs."

Walker said the BZA declined to issue a special exception to Oolman Dairy on the advice of the BZA's lawyer, who said the dairy did not present sufficient evidence to demonstrate that it could meet performance standards.

Miller's letter asks the commissioners to state their position on several issues, including whether the county is unwilling to consider CAFOs.

For background, see this 8/25/05 ILB entry on the Blackford County CAFO denial.

Posted by Marcia Oddi on Sunday, September 18, 2005
Posted to Environment | Indiana Government

Law - Bankruptcy deluge floods courts as deadline approaches

The Munster (NW Indiana) Times has a lengthy story today by Keith Benman, headlined "Bankruptcy deluge floods courts as deadline approaches." Some quotes:

The new bankruptcy law that kicks in Oct. 17 is prompting a rush to the courthouse as people take advantage of what may be their last chance to wipe out credit card and other unsecured debt.

Filings for Chapter 7, the bankruptcy that allows debtors to start over with a "clean slate," leaped 49 percent in the second quarter of this year in Northwest Indiana, according to figures from U.S. Bankruptcy Court for the Northern District of Indiana.

The second-floor clerk's office in Hammond's limestone-sheathed federal courthouse took in 22 such filings per day, or 1,426 in all, from April through June. It took in 956 such cases in the previous three months. * * *

Northern Indiana in 2002 had the dubious distinction of leading the nation in Chapter 7 bankruptcies per household, with households here filing at a rate almost twice the national average.

With the end of the steel crisis and a recovery in manufacturing nationwide, the situation in Northern Indiana has improved, with its bankruptcy ranking sinking to fifth in the nation earlier this year.

It will be some time before any trends can emerge from the current leap in Chapter 7 bankruptcies here. People also have started filing more Chapter 13, or "wage-earner" bankruptcies, as they get wind of the fact the new law affects Chapter 13 as well.

Paul Chael, Chapter 13 trustee for the Hammond Division of U.S. Bankruptcy Court for the Northern District of Indiana, reports at least 250 Chapter 13 cases were filed in August. That marks a 34 percent increase over the July mark of 186 cases filed.

Once the new law goes into effect on Oct. 17, Chael expects fewer than 10 percent of people who currently would be eligible for Chapter 7 to be pushed into Chapter 13. But that still could lead hundreds more debtors to his Merrillville office. It has a staff of 16 to handle its current load of about 4,400 cases. * * *

One of the biggest changes in the new law is the requirement that people get credit counseling before filing for bankruptcy. And those in Chapter 13 will have to take money-management classes before the case can be discharged and debts finally cleared.

On the surface, those seem like common-sense requirements. But those who deal with the system every day say it could lead to delays where people could end up losing homes or the family car.

They also fear predatory lenders may take up the mantle of "credit counselors" simply to get people in the door to sell them high-interest consolidation loans.

The Consumer Credit Counseling Service of Northwest Indiana is applying for certification for both the pre-filing credit counseling and teaching the money-management classes later, according to Lynne Balkema, a debt counselor at the nonprofit.

To avoid predatory lenders masked as credit counselors, Balkema advises people to make sure the counseling agency is a member of the nonprofit National Foundation for Credit Counseling.

The idea behind the credit counseling and classes is good, Balkema said. And she thinks people may take a closer look at her agency's debt-management program as an alternative to bankruptcy.

But even Balkema questions the value of the classes for many people, whose downfall was not poor money management, but simply unpreventable misfortune.

"You don't need to teach people who are uninsured and have $100,000 in medical bills how to manage their money," Balkema said. "What they need is health insurance."

Posted by Marcia Oddi on Sunday, September 18, 2005
Posted to General Law Related | Indiana Courts

Saturday, September 17, 2005

Ind. Decisions - More on Federal Judge Barker upholds state's no-call list

Here is a link to Judge Barker's decision in Nat'l Coalition of Prayer, et.al. v. Steve Carter (SD Ind., 9/2/05), which is now posted on the Court's site. The 32-page opinion concludes:

For all the reasons explicated above, we declare that the Indiana Telephone Privacy Act is a constitutionally-valid, content-neutral, time, place, and manner restriction on speech.
For background, see this 9/15/05 ILB entry.

Posted by Marcia Oddi on Saturday, September 17, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Evansville must release the reason a police officer is suspended or fired to comply with state open records law

Jennifer Whitson of the Evansville Courier& Press reports today, in a story headlined "Discipline action to be public: State says 'factual basis' of police discipline is necessary; attorney says city will comply," that:

Indiana's public access counselor advised the city of Evansville that it must release the reason a police officer is suspended or fired to comply with state open records law.

Counselor Karen Davis sent the message in an informal decision mailed Thursday. Davis said state law requires any public agency to give a "factual basis" of any firing, suspension or demotion of a public employee. * * *

The opinion came in response to a request from the Courier & Press, the city of Evansville and the Fraternal Order of Police Lodge 73. A Courier & Press reporter requested the disciplinary records for an officer and was given only the dates - not the reasons - for the officer's suspensions.

Instead of taking the matter to court, all parties agreed to submit a question to the public access counselor and abide by her decision. The matter was slightly complicated by a contract signed between the city and the police union in which the city promised not to release any personnel records without the express consent of an officer.

In earlier ILB entries on this story, from 8/31/05 and 9/5/05, I have expressed my concern that "that informal opinions of the Public Access Counselor (PAC) (which, along with the Counselor's formal opinions, are of course public records) are not readily accessible to the public." It seems to me ironic that such a problem of access would exist in the office of the Public Access Counselor.

Posted by Marcia Oddi on Saturday, September 17, 2005
Posted to Indiana Government

Ind. Courts - More on Terre Haute federal court's closing

The Terre Haute Tribune-Star has a story today on the closing of the Terre Haute division of the federal court fo the southern district of Indiana. The story references the carefully-worded statement of Chief Judge Larry McKinney, which was posted on the ILB here on Thursday.

Posted by Marcia Oddi on Saturday, September 17, 2005
Posted to Indiana Courts

Ind. Law - More on Kosciusko lake group wants to curtail shore development

Thursday the Fort Wayne Journal Gazette published an article titled "Kosciusko lake group wants to curtail shore development" - see ILB entry here. Today the Journal Gazette has an editorial on protecting Indiana's lakes. It concludes:

Kosciusko County leaders should look to their peers in Steuben County for best practices on balancing development, property owners’ rights and environmental preservation of the lakes. Steuben’s development ordinance requires 100 feet of shoreline for each lakeshore residential unit, 50 feet for a second unit and 20 feet for each additional unit. And Steuben wisely has a lake advisory board, which includes lake associations, that participates in the planning process.

Forming a committee to research the proposal is a good idea. The committee needs to include plenty of lake-property owners.

Posted by Marcia Oddi on Saturday, September 17, 2005
Posted to Environment | Indiana Government | Indiana Law

Environment - New Orleans, the Sunken City

This month's New Yorker has an excerpt from a 1987 article by John McPhee that describes the geography and geology of New Orleans. It begins:

New Orleans, surrounded by levees, is emplaced between Lake Pontchartrain and the Mississippi like a broad shallow bowl. Nowhere is New Orleans higher than the river’s natural bank. Underprivileged people live in the lower elevations, and always have. The rich—by the river—occupy the highest ground. In New Orleans, income and elevation can be correlated on a literally sliding scale: the Garden District on the highest level, Stanley Kowalski in the swamp. The Garden District and its environs are locally known as uptown.

Torrential rains fall on New Orleans—enough to cause flash floods inside the municipal walls. The water has nowhere to go. Left on its own, it would form a lake, rising inexorably from one level of the economy to the next. So it has to be pumped out. Every drop of rain that falls on New Orleans evaporates or is pumped out. Its removal lowers the water table and accelerates the city’s subsidence. Where marshes have been drained to create tracts for new housing, ground will shrink, too. People buy landfill to keep up with the Joneses.

Posted by Marcia Oddi on Saturday, September 17, 2005
Posted to Environment

Friday, September 16, 2005

Environment - Daniels plans to cut down up to five times the number of trees in state forests [Updated]

From a story posted on the Indianapolis Star website this afternoon:

The state Department of Natural Resources has historically harvested about 3.4 million board-feet of forest each year. Under the Republican governor’s plan, that figure would jump to between 10 million and 17 million board-feet.
[Updated 9/17/05] Here is the Star's extended coverage of the story today, by Theodore Kim. From the end of the piece:
The timber industry was a supporter of Daniels' 2004 campaign. In the December 2004 issue of Hard News, a publication of the Indiana Hardwood Lumbermen's Association, the group's lobbyist, Ray Moistner, penned a celebratory column about the GOP's statewide election victory.

"We have before us an opportunity to move forward, and make hay while the sun shines," Moistner wrote in the newsletter, which is available on the association's Web site (www.ihla.org). "I think it's safe to say the elections were very good for IHLA."

Daniels, asked about the timber industry's involvement in the plan, said its foremost objective is forest conservation. As for economic development, Daniels said the hope is not to aid larger firms but smaller, rural sawmills across the state that have struggled to make ends meet.

Jim Steen, a vice president for the lumbermen's association, stressed that the focus of loggers would be on older, dying trees.

"It would be like if people drove past a cornfield in (the winter) that hadn't been harvested," Steen said. "They would say: 'That crop is going to waste.' "

But [Tim] Maloney of the Hoosier Environmental Council questioned the value of the plan to sawmills. Most timbering in Indiana is done on private land, not in state forests, he said.

"I don't think this plan takes into account that forests are more than just tree farms."

Posted by Marcia Oddi on Friday, September 16, 2005
Posted to Environment | Indiana Government

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending September 16, 2005

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for week ending September 16, 2005. There are 27 Court of Appeals cases listed this week.

The last page of this week's list includes a NFP decision of the Indiana Tax Court. Note however that the Tax Court's NFP decisions ARE available online.

For earlier weekly NFP lists (going back to the week ending August 19, 2005), check "NFP Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, September 16, 2005
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending September 16, 2005

Here is the Indiana Supreme Court's transfer list for the week ending September 16, 2005.

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

Posted by Marcia Oddi on Friday, September 16, 2005
Posted to Indiana Transfer Lists

Ind. Courts - Separation of Powers in the County Courthouse

Here is my first regular column in Res Gestae, the monthly journal of the Indiana State Bar Association. Titled "Separation of Powers in the County Courthouse," it appears on pages 17-19 of the September, 2005 issue.

[My column is also accessible via the link labeled "Some of my publications are available here," in the right column, beneath the search box.]

Posted by Marcia Oddi on Friday, September 16, 2005
Posted to Indiana Courts

Ind. Courts - Courts Encouraged to Apply for Family Court Grants

The Supreme Court has issued a release reading in part:

The Supreme Court will begin Phase IV of the Family Court Project in January of 2006, Chief Justice Randall T. Shepard announced today.

The application form to serve as a new family court county is available here on the Supreme Court web site, and is due on October 20, 2005. The web site also provides detailed information about the family court vision, values and outcomes, special trial rules, and requirements.

All interested judicial officers are encouraged to contact the Family Court Consultant, Francie Hill. Ms. Hill will discuss interests and questions by phone or e-mail, but would appreciate the opportunity to meet personally with judicial officers, bar members, and/or community service providers in their counties to discuss family court options.

The Family Court Project was initiated by the Supreme Court in 2000 to develop better ways to serve children and families in the court system. The Project is administered through Executive Director Lilia Judson in the Division of State Court Administration. The Honorable Margret G. Robb of the Court of Appeals serves as the Project Chairwoman.

Posted by Marcia Oddi on Friday, September 16, 2005
Posted to Indiana Courts

Ind. Decisions - Duty of pharmacist to warn of side effect or provide manufacturers product information

The Court of Appeals held today that there is no duty to warn, in Albert Allberry v. Parkmor Drug, Inc. (9/16/05), an opinion written by Judge Bailey. Some quotes:

Issue. [W]hether Parkmor owed a duty to Allberry to either warn him of the potential side effects associated with a particular prescription drug or, in the alternative, provide Allberry with the manufacturer’s product information. * * *

The rationale expressed in Ingram is consistent with the majority of other jurisdictions that have addressed this issue and refused to impose a duty to warn on pharmacists. These jurisdictions generally reason that imposing such a duty on the pharmacist would place the pharmacist between the physician—who knows the patient’s physical condition—and the patient and could lead to harmful interference in the patient-physician relationship. * * *

Because we find the majority view to be more persuasive, today, we reaffirm our holding in Ingram. As such, Parkmor had no duty to warn Allberry of the side effects associated with Caverject. Parkmor also had no duty to give Allberry the manufacturer’s product information, which contained certain warnings about the use of Caverject, as such information was not included in the prescription itself. Accordingly, under these circumstances, the trial court properly granted summary judgment to Parkmor.

For the foregoing reasons, we affirm the trial court’s grant of summary judgment to Parkmor. Affirmed.

SHARPNACK, J., and DARDEN, J., concur.

Posted by Marcia Oddi on Friday, September 16, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court suspends attorney for 90 days

In In re Timothy V. Clark (9/16/05), a 5-page per curiam opinion in a disciplinary action, the Court concludes:

Given respondent’s repeated failure to respond in a timely manner to the Commission’s numerous requests for information and the disciplinary history cited above, the respondent, Timothy V. Clark, is suspended from the practice of law for ninety (90) days, effective Novem-ber 14, 2005, with automatic reinstatement thereafter.

Posted by Marcia Oddi on Friday, September 16, 2005
Posted to Ind. Sup.Ct. Decisions

Law - Legal Aid for Animals

"Legal Aid for Animals: Law schools see a growing interest in representing creatures that can't speak for themselves" is the headline to an interesting article today from Legal Times. A quote:

What is animal law? It can include elements of virtually every other discipline of law. For example, it might involve torts in dog-bite cases, criminal law in animal-cruelty cases, trusts and estates when people have willed their property to benefit their pets, environmental law when wildlife is affected by human activity and international law when animals are traded between nations. Although there is often a well-developed body of law covering some animals, such as wildlife, almost no law protects other animals, such as animals used in research and farmed animals used to produce meat and other products for human consumption.

Why does animal law matter? Simply speaking, we need animal lawyers because animals can't speak for themselves. Lawyers with knowledge of animal law are the only living beings capable of representing animals' interests within the judicial system.

Until recently, animal law was a relatively small and unknown specialty in the legal profession. Meanwhile, corporate interests have exploited the holes in the laws applied to animals. For instance, the meat industries have ensured that the Animal Welfare Act -- the federal statute purportedly providing protection for all animals -- effectively does not apply to farm animals. And state laws applying to these animals deny them the most basic requirements of humane treatment as they lay eggs, provide milk or wait to be slaughtered as meat.

Similar exemptions apply to animals used in research. Even where the law protects some animals, such as cats and dogs, economic interests easily push aside protections for man's best friend when substantial profits are involved; hence the stripping of legal requirements for puppy mills -- large businesses in which female dogs are often treated as breeding machines and are stripped of their puppies soon after delivering them. The puppies are then stored in small, dirty cages until they are shipped out to people who order them over the Internet and never realize the squalid conditions in which they began their lives. Lawyers cannot only fill these gaps in the law but can establish improved protections for animals.

Just this past year, the Humane Society of the United States established the Animal Protection Litigation Section, which, with eight attorneys and several law clerks, is now the largest in-house animal-protection litigation department in the nation. Law schools are now looking to fill new opportunities in an exploding field, and the GW Law School is at the forefront in creating a program to train the nation's future leading animal lawyers.

Posted by Marcia Oddi on Friday, September 16, 2005
Posted to General Law Related

Ind. Gov. - Elkhart County comprehensive land-use plan

The Elkhart Truth reports today, in a story by Thomas Bona, headlined "Land plan argued," that:

In all, 27 people spoke at a public hearing on the plan Thursday night. Some were strongly against it some were strongly in favor, but most were somewhere in between and questioned specific parts.

Central to the debate was a proposal to push new development to the areas near cities and towns, limiting what could be built in rural areas.

Supporters say that would preserve Elkhart County's agricultural character, while putting new homes on municipal utilities to avoid septic tanks. * * *

Opponents said politicians should not determine who farmers can sell their land to and for what purpose. They said the plan would force people to live in costlier cities when they prefer the country.

"I've seen a lot of people selling because of what is going on," said Arnold Longfellow of Goshen. "They want to live their lives. They want to be left alone."

Brian Christner of Goshen, speaking more to the audience than the plan commission convening the meeting, said the county has invited sprawl by paving dirt roads and giving factories tax breaks.

Another debate was whether the six-page plan is too vague or too specific. It consists of six goals, each with its own general policies, but doesn't contain specific new laws.

Those would come later, and that concerned residents who feared future officials would go different routes than were intended.

The "six-page plan" is available here, via the Elkhart County website. Here is the home page of the land use plan draft.

Posted by Marcia Oddi on Friday, September 16, 2005
Posted to Indiana Government

Law - Coal-sludge spill lawsuit will go to trial Monday in E. Ky.

An AP story today in the Louisville Courier Journal reports:

INEZ, Ky. -- A trial is scheduled to begin Monday in a lawsuit filed by people whose property was covered in coal sludge five years ago in one of the South's worst ecological disasters.

The case involves the spill of an estimated 306 million gallons of the molasses-like substance that gushed in torrents from a mountaintop reservoir, smothering fish, blackening the landscape and cutting off drinking-water supplies for about 60 miles along the Kentucky-West Virginia border.

Posted by Marcia Oddi on Friday, September 16, 2005
Posted to Environment | General Law Related

Law - Mississippi Sues Insurers Over Flooding Exclusions

"Mississippi Sues Insurers Over Flooding Exclusions: State Also Alleges Coercion to Claim Water, Not Wind, Damage" is the headline to this story today in the Washington Post. Some quotes:

The attorney general of Mississippi filed suit yesterday against insurers in the state, seeking to invalidate provisions of homeowner policies that exclude coverage for water damage.

Most homeowners' policies in Mississippi and elsewhere contain such provisions, but Attorney General Jim Hood called them "contrary to public policy" and "unconscionable."

The suit also accused adjusters for the companies of trying to get property owners to sign documents agreeing that damage to their homes was caused by flooding and not by wind. Such a document might be used by a company to argue against paying a claim because its policy covered only wind damage. * * *

Most of the companies named had not seen the suit, but Michael Trevino of Allstate said his company's policies "have been approved by the state of Mississippi for use in the state . . . including the flood exclusion that currently is in the contract."

"We have not collected premiums that contemplated flood as a covered peril under the homeowners policy, and to have a contract voided after both parties have agreed to [it] raises serious concerns about the insuring process in Mississippi," Trevino said. * * *

Last week, Mississippi Insurance Commissioner George Dale ordered insurers to make a physical inspection of any damage before deciding whether or not it is covered, and, if a claim is to be denied, the carrier must be able to prove that it was caused by water and not by wind.

Posted by Marcia Oddi on Friday, September 16, 2005
Posted to General Law Related

Environment - Ethanol stories today

Ethanol. Seth Slabaugh has two stories today in the Muncie StarPress. "Ethanol plants called corn 'vacuum cleaners'" is the headline to this one, which reports:

TIPTON - Four ethanol plants have been announced in Blackford, Grant, Wells and Randolph counties, but can one region support that many?

"One important consideration is, wherever they are built ... they do tend to pull the vast majority of the corn within a 50- to 60-mile radius," said Mike Jackson, moderator of a bio-fuels panel discussion at Indiana Farmfest. "The fact is, they tend to be vacuum cleaners for corn in the area because they do in fact raise corn prices." Jackson is the founder of ABG Inc., an Indianapolis agri-business consultant.

"We're in the midst of a $100-million poker game," said Delaware County grain farmer Joe Russell, referring to the four possible ethanol plants in this area of the state.

Russell, who attended the panel talk, is trying to rezone 806 acres of land in Delaware County to attract an ethanol plant or soy biodiesel plant.

He suggested drawing 40-mile circles around each of the four possible ethanol plants and seeing where the circles overlapped.

Russell said he believed East Central Indiana could accommodate four ethanol plants if every ear of corn in the region was sold to the four plants.

My question: Then how will we feed all the hogs?

The second story is headlined "Ethanol boom 'biggest thing since New Deal'". Some quotes:

TIPTON - Six to 10 ethanol plants will be built in Indiana in coming years, an official representing the ethanol industry predicted Thursday at Indiana Farmfest.

"We're going to build 70 new ethanol plants across the United States over the next six to seven years," said Larry Schafer, vice president of the Renewable Fuels Association in Washington, D.C. "That's a fact. And we expect six to 10 of those to be in Indiana."

Indiana currently has only one ethanol plant, but four more are under construction, and many more are on the drawing board, including projects in Marion, Hartford City, Bluffton, and Winchester.

Schafer and other experts on a panel were vague about whether East Central Indiana could accommodate four ethanol plants.

"We think this ... is so big that we call this the revitalization of rural America, the biggest thing to hit rural America since the New Deal back in the 1940s," Schafer said. * * *

Each of the 70 plants will cost an average of $75 million, employ 30 to 35 people directly, and infuse $60 million into the local economy annually, Schafer said.

The reason he's certain that 70 plants will be built is because that's how many it will take to produce enough ethanol and soy bio-diesel to comply with the federal energy bill. "That's the minimum (number of plants)," Schafer said. "I don't know the maximum." * * *

"It's tough to make bio-fuels work without government help," said Charlie Smith, chief executive officer of Countrymark Co-Op, an Indiana company that produces soy bio-diesel fuel. * * * "If gas goes back to $1 a gallon, ethanol is going to really struggle, and people making investments in ethanol are going to really struggle," Smith said.

Soy bio-diesel makers like Countrymark also would struggle if gas prices drop.

"Soybean oil after it's refined and bleached typically costs $1.75 a gallon," Smith said. "To make it into bio-diesel, you will pay maybe 10 cents a gallon to process it in a facility costing $20 million to $30 million. What comes out is something worth about $1.90 a gallon without government subsidies."

Smith called the alternative fuels boom sweeping the nation a "potentially very great opportunity," but one that has to be pursued carefully because "we're not playing with Monopoly money. We're playing with real money, and if you belong to a co-op, it's your money.

"As a consumer, you'd love it if we build three times as many ethanol plants as we need, because the price of ethanol is going to go really low. But if you are an investor in that ethanol plant, that's bankruptcy."

Posted by Marcia Oddi on Friday, September 16, 2005
Posted to Environment | Indiana economic development

Ind. Decisions - City takeover of Fort Wayne utility blocked

As reported today in a story by Niki Kelly in the Fort Wayne Journal Gazette:

The city of Fort Wayne’s plans to forcefully obtain Aqua Indiana’s north water system took a major hit Thursday when the Indiana Court of Appeals ruled the city used the wrong procedure to initiate condemnation proceedings.

The 2-1 decision reverses an earlier trial court judgment by Allen Circuit Court Judge Thomas Felts.

The city started an eminent domain action in 2002 to acquire the utility’s north system, which serves about 8,000 customers who have mostly been annexed into the north side of Fort Wayne. * * *

According to Thursday’s ruling, there is a general state law regarding a city’s right to eminent domain and a separate law more specific to utilities.

The city filed its action using the more general rule, and Aqua Indiana sued, saying the city must follow the specific utility statute, which was enacted in 1999.

It is the first time the Indiana Court of Appeals has ruled on the question of the competing statutes, and the court found the city is required to use the more specific statute related directly to utilities.

The court also ruled the 1999 statute is not limited to only “troubled” utilities, something the city had argued and the Indiana Utility Regulatory Commission had found in a separate matter in 2001.

The 1999 statute was authored by Sen. David Long, R-Fort Wayne, who signed an affidavit in the case that was not allowed into evidence. * * * Because of Long’s law, the process the city must now use is very different and potentially puts the project in jeopardy. * * *

A dissent filed by Judge Margret Robb said the end result of Thursday’s decision is that cities can only buy troubled utilities. She doesn’t think that’s what the legislature intended and believes that in the absence of a troubled utility the regular eminent domain statute applies.

The case is Utility Center, Inc. v. City of Fort Wayne, and was the focus of this ILB entry yesterday, that looked particularly at the ruling's discussions of "the question of the admissibility of the affidavit of a state senator as to his intent in authoring a piece of legislation."

Posted by Marcia Oddi on Friday, September 16, 2005
Posted to Ind. App.Ct. Decisions

Thursday, September 15, 2005

Environment - "Floods' Pollutants Within the Norm"

According to a story today in the Washington Post:

NEW ORLEANS, Sept. 14 -- Early tests on the floodwater that covered most of this city do not suggest it will leave a permanent toxic residue or render residential areas uninhabitable for more than a short time, officials of both state and federal environmental agencies said yesterday.

The pollution consists primarily of fecal matter and slightly elevated concentrations of metals such as lead and chromium that were in the city's soil before Hurricane Katrina. There are also trace amounts of many petroleum-based chemicals and some pesticides.

Despite descriptions of the floodwater as a "toxic soup" and a "witch's brew" of contaminants, the preliminary tests reveal it contains little that is different from what has been seen after past floods in other cities and here.

The exception is a residential area in the suburb of Meraux southeast of the city, where 672,000 gallons of oil leaked from a refinery storage tank. Areas around six smaller oil spills may also require special cleanup, the officials said.

"The early results do not indicate specific toxic pollutants at any levels of concern," said Chris M. Piehler, a senior environmental scientist at the Louisiana Department of Environmental Quality.

But, the Wall Street Journal reminds in its evening wrap tonight:
Though large swaths of New Orleans are still submerged in toxic sludge, Mr. Nagin decided to reopen parts of the city after the Environmental Protection Agency declared its air safe to breathe. "It's a good day in New Orleans," Mr. Nagin said. "The sun is shining. We're going to bring this city back.'' * * * Mr. Nagin, who has been criticized by some for his handling of the storm, runs the risk of drawing still more brickbats if he reopens the city too quickly. The EPA was accused of being too hasty to declare the air in downtown New York City safe to breathe after the Sept. 11, 2001, terrorist attacks.

Posted by Marcia Oddi on Thursday, September 15, 2005
Posted to Environment

Ind. Courts - More on closing of Terre Haute division of the federal court

This press release, dated Sept. 13. 2005, is posted on the U.S.D.C., S.D. Ind. website:

Chambers of Larry J. McKinney, Chief Judge

The United States District Court for the Southern District of Indiana is saddened to announce that it is undertaking a strategy to withdraw District Court operations from the Terre Haute Division, effective January 1, 2006. The Judges of the Court have made the need for a suitable facility in which to continue the federal judicial presence in Terre Haute known to the General Services Administration since the United States Postal Service made the determination, for fiscal reasons, to abandon the Terre Haute Federal Building. The type and kind of appropriate federal facility has been restricted by the limited funds made available to the Judiciary by Congress.

Construction of a new stand-alone facility is not a feasible alternative for financial reasons, and the General Services Administration has been unable to identify any suitable alternatives. The United States Bankruptcy Court will continue to maintain an active presence in the division.

Posted by Marcia Oddi on Thursday, September 15, 2005
Posted to Indiana Courts

Ind. Decisions - Use of a senator's affidavit of statutory intent in intrepreting statute

A Court of Appeals opinion issued today, Utility Center, Inc. v. City of Fort Wayne, looks at the question of the admissibility of the affidavit of a state senator as to his intent in authoring a piece of legislation. Some quotes:

The Long Affidavit provides, in relevant part, as follows:
3. I was the author of Senate Bill 177 . . . which was eventually adopted by the Indiana Legislature and approved by the Governor and which bill contained the language which is now found at Indiana Code Section 8-1-30-6.

* * * * *

7. My purpose in providing this affidavit is to explain, in the clearest possible language, that my intent as the author of Senate Bill 177 was to prevent a municipal utility from using its power of eminent domain to acquire a healthy utility, because I believed that to allow otherwise would create a chilling effect upon the goals of Senate Bill 177. 8. Senate Bill 177 sought to create an incentive for a private or municipal utility to take over a troubled utility and make the necessary investments to bring that troubled utility back to health. . . . . I believed, as the author of the bill, that it was critical to create a positive environment for private utilities if we were to induce private utilities to participate in this new process. I believed that to allow municipal utilities to acquire a formerly troubled utility by eminent domain after a private utility had made the financial investments to return that utility to health would be a strong disincentive for a private utility to ever get involved in that process. That, in turn, would have created a disincentive for the [Commission] to take the bold step of placing an existing troubled utility into receivership in the first place.

9. For these reasons, I intentionally placed language in Senate Bill 177 that prevented a municipal utility from using its powers of eminent domain to take over the ownership of a healthy private utility.

Appellant’s App. at 2-3 (emphasis in original). The Indiana Supreme Court has held, however, that the motives of individual sponsors of legislation cannot be imputed to the legislature, absent statutory expression. See O’Laughlin v. Barton, 582 N.E.2d 817, 821 (Ind. 1991) (finding error, albeit harmless, where the trial court considered individual affidavits of senators as evidence that the legislature intended a particular act to apply retroactively), reh’g denied. Therefore, although the averments made in the Long Affidavit are based upon his personal knowledge and opinion regarding whether the legislature intended Indiana Code Section 8-1-30-6 to apply to a municipality’s acquisition of a non-troubled public utility, they do not set forth facts as would be admissible into evidence under Indiana Trial Rule 56. Accordingly, the trial court properly granted City’s motion to strike.

The opinion was written by Judge Bailey, with Judge Friedlander concurring. Judge Robb concurs in part and dissents in part. A quote:
I concur in the majority’s opinion with respect to the City’s Motion to Strike the Long Affidavit. Utility Center’s assertion that “Senator Long’s affidavit reaffirms the plain language of the statute,” Appellant’s Br. at 17, proves the point that the trial court did not err in striking it. If the language of the statute is “plain,” and the legislation is not susceptible to widely differing interpretations, we are constrained by Supreme Court precedent regardless of how insightful the legislator’s comments are. For that reason, I concur with the majority in affirming the trial court on this issue.

Posted by Marcia Oddi on Thursday, September 15, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Federal Judge Barker upholds state's no-call list

The Indianapolis Star website is reporting:

A federal judge has ruled in favor of the state in a 3-year-old lawsuit by nonprofit groups challenging Indiana's popular "no-call" list.

U.S. District Court Judge Sarah Evans Barker issued a verdict without trial in favor of Indiana Attorney General Steve Carter, who defended the list.

In a 36-page opinion dated Sept. 6 and issued late Wednesday, Barker said the law is "content-neutral" and does not violate the First Amendment. * * *

Four nonprofit groups - the National Coalition of Prayer, the Kentucky-Indiana Chapter of Paralyzed Veterans of America, the Indiana Troopers Association and the Indiana Association of Chiefs of Police - filed the joint federal lawsuit in April 2002 to overturn the state's telemarketing law. The law had taken effect several months before the suit was filed. The troopers group dropped out of the litigation in May 2004.

The litigants contended the no-call list violated their constitutional right to free speech by limiting their ability to get their messages out, raise money and contact prior financial supporters.

Indiana's law allows charities to make solicitation calls if they use employees or volunteers to call. Professional fund-raisers are barred from calling numbers registered on the list.

I'm trying to obtain the ruling.

Posted by Marcia Oddi on Thursday, September 15, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Kosciusko lake group wants to curtail shore development

"Kosciusko lake group wants to curtail shore development" is the headline to a story today in the Fort Wayne Journal Gazette. Some quotes:

Citizens concerned about the future of Kosciusko County’s nearly 100 lakes are seeking a new county zoning ordinance that would restrict lakefront commercial development.

“We would like for county development to create a second residential district … with a perimeter with somewhat more restrictive zoning requirements so that things that are generally accepted uses … would require a variance and more consideration before they go forward,” said Dave Tyler, chairman of the Lake Tippecanoe Property Owners Association’s lakeshore development committee.

Specifically, the group is proposing that a half-mile-wide zone be established around lakes more than 10 acres in size where no commercial development would be allowed. The largest residential unit allowed would be a duplex.

“Most kinds of development that’s beyond regular residential can be a cause for concern from an environmental standpoint,” Tyler said. * * *

The action Tyler’s group is taking follows recommendations made by the Department of Natural Resource’s Indiana Lakes Management Work Group.

The state has jurisdiction only over the actual water area of lakes, said Jim Ray, chief of the lake and river enhancement section in the DNR’s division of fish and wildlife.

“Once you get to shore land, the DNR has no jurisdiction,” Ray said.

As a result, the state work group recommended that county planning and zoning incorporate strategies to protect the ecological importance of public lakes.

“Local communities are best positioned to determine how to address their land use needs,” reads a written recommendation made by the work group.

“From a natural resource standpoint, it’s important to protect the shoreline and the near shoreline to provide habitat for various plant and animal species important in the food chain and overall ecology of that lake system,” Ray said.

Posted by Marcia Oddi on Thursday, September 15, 2005
Posted to Environment | Indiana Government | Indiana Law

Law - Massachusetts Lawmakers Reject Bid to Stop Same-Sex Marriages

In Massachusetts, the state where same-sex marriage has been legal since a state supreme court ruling in Nov. 2003, a legislative effort yesterday to propose a constitutional amendment to halt same-sex marriage failed by a vote of 157 to 39. (The Mass. ruling was Goodridge v. Department of Public Health, available here.)

The Washington Post reports:

BOSTON, Sept. 14 -- Amid a pep-rally atmosphere, Massachusetts legislators on Wednesday overwhelmingly rejected an attempt to halt same-sex marriages here -- showing how quickly gay nuptials have moved from being a court-ordered imposition to a powerful political cause.

By a vote of 157 to 39, members of the House and the Senate meeting together voted down a proposed constitutional amendment that would have eliminated the same-sex marriages legalized two years ago and replaced them with "civil unions" for gay couples.

Instead, the vote leaves same-sex marriage as the status quo in Massachusetts, and it now seems likely to remain so until at least 2008.

But, in a broader sense, the vote also illuminated how widely Massachusetts has diverged from much of the nation, where several dozen states have passed laws limiting marriage to heterosexual couples. California's lawmakers have passed legislation legalizing same-sex marriage. It is now sitting on the desk of Gov. Arnold Schwarzenegger (R), who has said he will veto it.

Politicians here credit the weddings themselves with shifting the political momentum, saying their growing ordinariness has defused some of the opposition.

"The difference is that we have marriage," said state Sen. Jarrett T. Barrios (D) after the vote, while other supporters screamed and cheered nearby in a rally under a mural of the Boston Tea Party. "We've got a world that hasn't changed."

The NY Times reports:
BOSTON, Sept. 14 - In a sign that the legalization of same-sex marriage has changed the political landscape in Massachusetts, the legislature soundly defeated a proposed constitutional amendment on Wednesday to ban gay marriage and create civil unions, an amendment that lawmakers gave preliminary approval to in a raucous constitutional convention last year.

Wednesday's 157-to-39 vote by a joint session of the House and Senate partly reflected the fact that some legislators now consider same-sex marriage more politically acceptable, after a largely conflict-free year in which some 6,600 same-sex couples got married and lawmakers who supported it got re-elected.

The vote also reflected some lawmakers' reluctance to pass a bill that could either withdraw rights from already married couples or create a class of married gay men and lesbians and a class of those unable to marry.

Indeed, Senator Brian P. Lees, a Republican who is the minority leader and who co-sponsored the amendment, which received preliminary approval from the legislature in March 2004 in a 105-to-92 vote, said he voted against it Wednesday.

"Today, gay marriage is the law of the land," Mr. Lees said, noting that same-sex marriage became legal in May 2004. Voting for the amendment, he said, would mean "taking action against our friends and neighbors who today are currently enjoying the benefits of marriage."

Saying he had heard from over 7,000 constituents, most against the amendment, Mr. Lees added, "Gay marriage has begun and life has not changed for the citizens of the commonwealth, with the exception of those who can now marry who could not before."

Wednesday's vote also reflected a change in the strategy of opponents of same-sex marriage.

Last year some legislators who opposed both same-sex marriage and civil unions voted for the amendment because they considered it their best chance at preserving marriage for heterosexuals.

This year, after it appeared that the amendment would fail, many opponents of same-sex marriage started a citizens' petition for a stricter amendment that would ban same-sex marriage without creating civil unions.

The Boston Globe reports:
The lopsided defeat for the amendment was largely due to the fact that 55 lawmakers -- more than 25 percent of the Legislature -- who had supported the amendment last year switched and voted no yesterday. Seventeen of the Legislature's 18 freshmen lawmakers also voted against the amendment.

''I do think that a lot of people have been thinking over the last year," said Senate Republican leader Brian P. Lees, who abandoned his support of the amendment even though he was one of its cosponsors. He said he had nearly 8,000 letters and e-mails on the issue. ''I don't think it was cynical," the East Longmeadow senator said of the switch. ''It says in the constitution you have to go through two legislative sessions and things changed."

Many of the Legislature's most ardent opponents of gay marriage also abandoned the compromise measure, preferring another proposed amendment that seeks an outright ban on same-sex marriage. If backers obtain roughly 66,000 signatures in the fall, that measure will require just 50 backers in two successive sessions of the Legislature to appear on the 2008 ballot. * * *

Supporters of same-sex marriage, who waged an intense lobbying campaign of lawmakers over the summer, say that among the 157 opponents of the amendment defeated yesterday were at least 115 and perhaps more than 120 legislators who are likely to oppose the 2008 amendment. The remainder of those who voted no were probably lawmakers who see the 2008 ballot question as a better means of eliminating gay marriage because it does not require the establishment of civil unions. * * *

Critics of same-sex marriage said yesterday's vote was a necessary step to ready for their 2008 ballot effort. They said that they can now count on at least 60 legislative supporters of that ballot question, which is 10 more than needed to put it before the voters. ''This is fantastic; we're pumped," said Kristian Mineau, head of the Massachusetts Family Institute, which is spearheading the ballot initiative campaign. ''This was a flawed amendment. The citizens wanted a vote on marriage with no add-ons, and this opens the gate. There are no more barriers."

Some veteran lawmakers said yesterday that neither side should interpret what the outcome of yesterday's vote means for the new amendment effort. They said the dynamic in the Legislature is clearly too fluid to know how lawmakers will react to the amendment by May 10, 2006, when the Legislature would vote on the 2008 ballot question if supporters gather enough signatures to place it on the constitutional convention agenda. Top lawmakers set the May 10 date yesterday.

Posted by Marcia Oddi on Thursday, September 15, 2005
Posted to General Law Related

Ind. Decisions - Court overturns ruling in Lincoln Utilities sale

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

MERRILLVILLE | The Indiana Court of Appeals earlier this week ruled on the side of about 2,000 customers formerly served by Lincoln Utilities water distribution system.

It was a decision heralded Tuesday by Merrillville Town Attorney Stephen Bower and Town Councilman David Uzelac, D-4th, at the Town Council meeting.

"This is one of those rare consumer victories," Bower said.

The court reversed an earlier decision by the Indiana Utility Regulatory Commission, which said new owner Indiana Water Services could recoup 90 percent of the $1.25 million purchase price of the former Lincoln Utilities.

Check here for the ILB's report Tuesday on the decision.

Posted by Marcia Oddi on Thursday, September 15, 2005
Posted to Ind. App.Ct. Decisions

Law - Judge Declares Michigan Abortion Law Illegal

The Chicago Tribune reports this morning:

LANSING, Mich. -- A federal judge has declared unconstitutional a Michigan law that supporters said would ban a late-term abortion procedure.

In a ruling dated Monday, U.S. District Court Judge Denise Page Hood in Detroit ruled the Legal Birth Definition Act places an "undue burden" on women's right to choose.

Hood said the law is confusing and vague, and its exceptions for the health or life of a mother are meaningless and unconstitutional.

"The act does not describe any specific procedure to be banned," Hood wrote. "The act also does not distinguish between induced abortion and pregnancy loss."

Parties in the lawsuit learned of the ruling late Wednesday when it was obtained by the Detroit Free Press. It was not immediately clear why the parties were not notified of the ruling.

Proponents of the law said they were attempting to ban a procedure they call "partial-birth" abortion. Previous attempts by state lawmakers to stop the abortion procedure were struck down by federal courts in 1997 and 2001.

Doctors label the practice "intact dilation and extraction," or D&X. During the procedure, generally performed in the second trimester, a fetus is partially removed from the womb and the skull punctured. Some doctors say it is the safest option for women in some circumstances.

Hood agreed with abortion rights groups that argued the law would ban all pre-viable abortions, including "dilation and evacuation," or D&E, the most common method of second-trimester abortion.

Wendy Wagenheim, a spokeswoman for the American Civil Liberties Union of Michigan, said the law would have banned virtually all abortion, including those in the first trimester.

According to the ACLU, as of August 2004, at least 31 states had enacted bans on "partial-birth" abortions. The laws have been struck down in at least 20 states, the organization said. * * *

The state Legislature approved a law attempting to ban the procedure in June 2004. Hundreds of thousands of voters signed petitions that allowed the bill to become law with only the approval of the House and Senate -- both of which are controlled by Republicans -- after Democratic Gov. Jennifer Granholm vetoed it.

Since similar laws have been struck elsewhere, anti-abortion advocates tried a new approach with the Michigan ban.

Rather than name the procedure specifically, the law defined birth as the moment any portion of the fetus emerges from a woman's body, making the fetus a legally born person under the law. A doctor could not do D&X unless it was necessary to save the mother's life or to avoid an "imminent threat" to her physical health.

See this ILB entry from September 9th re a federal court ruling on an Ohio law.

Posted by Marcia Oddi on Thursday, September 15, 2005
Posted to General Law Related

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

In this 8/30/05 ILB entry, we quoted from Louisville Courier Journal story that "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." Today the LCJ reports:

FRANKFORT, Ky. -- Gov. Ernie Fletcher took sweeping action yesterday in response to the investigation of state hiring practices, firing nine officials and closing an agency alleged to be the heart of an administration patronage machine.

Fletcher also called for the resignation of state Republican Party Chairman Darrell Brock, a former administration official who had been indicted in the investigation and then pardoned.

The governor said he stood by the pardons he issued Aug. 29, including those for Brock and four of those he fired yesterday.

But Fletcher said during an address at the Capitol that the nine officials acted inappropriately. * * *

Fletcher asked for the resignation of deputy chief of staff Dick Murgatroyd, a friend whose actions the governor has staunchly defended since the investigation began in May.

Also fired were deputy personnel secretary Bob Wilson, and Basil Turbyfill, director of the governor's Office of Personnel and Efficiency.

Those three officials had been indicted and later pardoned.

Two others fired yesterday are former top officials of the governor's constituent outreach office known as LINK for Local Initiatives for a New Kentucky -- the agency that Fletcher disbanded.

Posted by Marcia Oddi on Thursday, September 15, 2005
Posted to General Law Related

Ind. Law - At least 15 counties to petition for central time

At least 15 counties to petition for central time, write Mike Smith today in this AP story published in the Louisville Courier Journal.Add those to the ten Indiana counties which aleady are west of the eastern time zone and that would put more than 25% of the Indiana on central time. Some quotes:

INDIANAPOLIS -- With at least 15 counties petitioning the federal government for a time-zone change, some Hoosiers are wondering whether their state is in the midst of another round in a seemingly endless fight over clocks.

"What we are doing is just creating new confusion for ourselves," said retired Indiana University economist Morton Marcus, referring to the decades-long fight over daylight-saving time.

The potential shifts could leave a puzzling time zone line, with South Bend shifted to Central time and Lafayette and Terre Haute -- both farther to the west -- remaining in the Eastern zone. [Many would say it already is confusing.]

The U.S. Department of Transportation, which regulates time zones, will decide whether to approve the requests. The agency's primary consideration is whether a change would benefit commerce, and counties must provide evidence that a switch would do that.

If the agency finds merit to the petitions, it will hold public hearings in the counties before making decisions. There is no timetable for that process, though the deadline for applying for a change is tomorrow.

Gov. Mitch Daniels lobbied legislators hard for a new law that will put all of the state on daylight-saving time beginning next spring, saying it would eliminate confusion and boost commerce. But the law also required him to petition the federal transportation department to determine whether time zones should be changed.

He did not state a preference for new boundaries, something the department said was unprecedented, and it decided that individual counties had to seek a change on their own.

Doug Masson, of Masson's Blog, is on the time zone story "all the time" and has a new, and very useful, map this morning. He adds Benton County to the tally, making a total of 16 petitioning for a change to central time.

Posted by Marcia Oddi on Thursday, September 15, 2005
Posted to Indiana Law

Wednesday, September 14, 2005

Environment - The Hapless Toad; Lake County Air

The Hapless Toad. Notre Dame Law School environmental law professor John Copeland Nagle has a commentary on the D.C. Circuit's Judge John Robert's now familiar opinion in a case involving the Endangered Species Act and the arroya toad. A quote:

The only part of the ESA that has generated any constitutional litigation is a prohibition upon private actions that "take" a species, which includes certain - but not all - activities that destroy the habitat of a species. Congress has obvious power to regulate any such activities that substantially affect interstate commerce. But some have questioned whether the Constitution's commerce clause allows the federal government to regulate private activities that harm an endangered species that is found in only one state and that has no other connection to interstate commerce. The arroyo toad, like Mark Twain's frog, is found in only one state: California.
Lake County Air. "Lake County, Ind., now meets health-based sulfur dioxide standard" is the headline to this EPA press release. A quote:
CHICAGO (Sept. 14, 2005) — U.S. Environmental Protection Agency Region 5 announced today that all of Lake County, Ind., now meets the health-based, outdoor air-quality standard for sulfur dioxide.

Lake County, located in northwest Indiana, has several industrial facilities that have substantially reduced their sulfur dioxide emissions over the years. EPA is redesignating the county as a sulfur dioxide attainment area based on three years of complete, quality-assured, outdoor air monitoring data for 2002, 2003 and 2004. The action will be published soon in the Federal Register. * * *

"The people and industries of Lake County have worked hard to achieve an annual reduction of more than 30,000 tons of sulfur dioxide emissions," said Thomas W. Easterly, commissioner of the Indiana Department of Environmental Management. "As a result, Lake County residents are enjoying a permanent improvement in the quality of the air where they live, work and raise their families."

Posted by Marcia Oddi on Wednesday, September 14, 2005
Posted to Environment

Ind. Law - Res Gestae article on Judicial Mandates in Indiana

I had planned to post the first of my Res Gestae columns ("To elaborate ...") today, but am waiting until my September issue arrives in the mail so that I can cite it correctly.

Posted by Marcia Oddi on Wednesday, September 14, 2005
Posted to Indiana Law

Environment - Tondu vote put on hold

Updating yesterday's South Bend Tribune story (see ILB entry here), the paper today reports:

The council voted 6 to 3 in favor of postponing a decision on whether to allow a special permit for the plant.

They agreed about midnight to hold a special meeting to vote on the issue on Sept. 22 to give the council more time to review the project and to allow Tondu Corp. officials to put into writing their commitments regarding the plant. * * *

Earlier, many in the audience laughed when Tondu told the council that very small amounts of some emissions from the plant would have little or no impact on the surrounding area. But, he said, that needs more study to confirm.

They laughed when he told the council that the company would monitor the groundwater and provide results to the county Health Department.

They laughed when a council member questioned Thomas Easterly, commissioner of the Indiana Department of Environmental Management, about IDEM essentially being a rubber stamp for such projects.

Easterly denied that the agency would be a rubber stamp. He insisted the company would have to meet strict rules regarding environmental effects.

Easterly spoke in favor of the council approving the special permit, saying it is clean technology.

But many in the crowd laughed again when Easterly was challenged by a council member that his speaking in favor of the project would cause IDEM to not be a fair arbiter when Tondu comes with an application for environmental permits.

All in all, though, there was little humor in the crowd's laughter.

Two other stories in today's Tribune: "Officials allege behind-scene talks: Other leaders counter accusations relating to Tondu" here; and "Daniels says Tondu plant a good fit for Indiana: Representative presents case before County Council," here. The latter story, a lengthy and informative report on Indiana's need for new generating capacity, by Martin DeAgostino, begins:
INDIANAPOLIS -- Citing Indiana's need for new baseload electric power, Gov. Mitch Daniels threw his weight Tuesday behind the proposed Tondu power plant near New Carlisle.

Daniels said the 600 megawatt electric generating station will provide clean and cost-competitive electricity that matches state and national energy priorities. Construction also would put Indiana at the forefront of states using advanced technology to meet growing energy needs, he said.

Daniels presented his views to the St. Joseph County Council through his senior energy adviser, John Clark. Clark urged the council to approve Tondu Corp.'s application for a special use permit to build the approximately $1 billion plant.

Speaking earlier to The Tribune, Clark said Daniels would not normally involve himself in a local land-use decision.

"We just felt that it was such an important state and even national interest here that we wanted to take this extraordinary step," he said.

Posted by Marcia Oddi on Wednesday, September 14, 2005
Posted to Environment | Indiana economic development

Ind. Courts - U.S. District Court in Terre Haute shutting down

WTHI TV from Terre Haute is reporting today:

The verdict is in on the federal court for Terre Haute. The announcement came Tuesday afternoon that the district court will be shut down at the federal building in Terre Haute. While the decision came as no great surprise, it will impact the community in some little known ways.

The federal court building in Terre Haute has stood the test of time, but it will soon say goodbye to a long time tenant. After months of review the United States District Court said Tuesday it's shutting down the court in Terre Haute. The court had become part time in recent years.

But for attorneys like James Bopp, who has a big federal case practice, the news is disheartening, "Well, it's a big disappointment for Terre Haute, because having a federal court kind of puts you on the map as far as the kind of facilities that facilitate that conduct of legal business."

In a way, this court closing is like the military base closings we've heard so much about. The federal court system is in a financial crisis. They must streamline and economize. So when they take a look at the old building which is very historic and a very big security risk, the answer is simple.

It would cost $16 million to replace. The court's rent would be one million dollars a year. This court is closing because someone simply did the math.

One of the biggest losers in this is the Federal Penitentiary in Terre Haute. Federal prisoners form a steady line to the courts for appeals and such. Now they must be transported to Indianapolis or Evansville. It's going to create a real dislocation for the ability to handle those cases because they have to appear.

This ILB entry from Aug. 15, 2004 included this quote from the the Terre Haute Tribune-Star: "Instead of building a new federal building in downtown Terre Haute, a chief federal judge is considering moving part of the court's responsibility to Indianapolis." From Feb. 25, 2005: "Federal judges toured Terre Haute City Hall last week to see if it might serve as a possible location for the U.S. District Court."

Posted by Marcia Oddi on Wednesday, September 14, 2005
Posted to Indiana Courts

Law - Patients vs. Doctors, Online and in Court

The free Wall Street Journal has a story today titled: "As Angry Patients Vent Online, Doctors Sue to Silence Them." It begins:

Doctors have long accepted that their patients share opinions about the care they have received, knowing that satisfied patients will refer others while those not so happy with their bedside manner might encourage prospective customers to seek treatment elsewhere. But when William Boothe, an ophthalmologist in Texas, saw that one disgruntled former patient was posting his complaints on the Internet, he launched an aggressive response. He sued for libel and other claims, and earlier this year a state judge ordered the material removed from the Web.

The case is one of a growing number of legal battles being waged over Internet postings about medical complaints. More patients are taking their opinions of their local doctors to the Internet, and a wider audience, and that has some medical providers on edge. Several Web sites have sprung up that encourage patients to post anonymous reviews of doctors and dentists, and some frustrated patients have created entire Web sites to criticize specific physicians. * * *

Patient advocates, meanwhile, say patients have First Amendment rights to describe their experiences with physicians. "Blogs and personal Web sites are no different than talking over the back fence," said Charles Inlander, president of People's Medical Society, a patient advocacy group in Allentown, Pa. "Those who read it have to take it with whatever grain of salt you would take, just like a neighbor. It's too bad if doctors are insulted by this."

In another medical story today, the Washington Post reports that "Health Records Of Evacuees Go Online." Some quotes:
The federal government is making medical information on Hurricane Katrina evacuees available online to doctors, the first time private records from various pharmacies and other health care providers have been compiled into centralized databases. * * *

Although the immediate focus is on urgent care for hurricane victims, participants in the effort say the disaster demonstrates a broader need to computerize individual health records nationwide and make them available throughout the medical system. Such a step could, for example, give emergency room doctors a way to quickly view medical histories for late-night accident victims.

Electronic health records are controversial among many privacy advocates, who fear the data could be exploited by hackers, companies or the government. * * *

Federal regulations do not require patient consent for their records to be shared for medical purposes. Companies or organizations that have such data must have formal agreements with each other before data can be exchanged, but the government said it would not enforce those rules while Katrina victims were in need, as long at the entities had verbal agreements to use the data for the relief effort. States with more stringent regulations suspended their rules as well.

Posted by Marcia Oddi on Wednesday, September 14, 2005
Posted to General Law Related

Environment - Berne targets septic systems, and more

Septic tanks. J. Swygart of the Decatur Daily Democrat reports today:

Shannon Smitley, planning department inspector for the city of Berne, has been going door-to-door at homes along Nussbaum Street, Center Street and Gay Drive in an attempt to locate septic tank systems that are contributing to combined sewer overflow violations in the city.

Smitley reported his progress to Berne City Council on Monday evening.

"We've started to make appointments with homeowners for us to come in and do dye tests. We did 10 homes last week and found four septic tanks," Smitley said. "There are 13 homes left to check, and I'm pretty sure there are at least two more septic tanks that flow into our combined sewer."

The city of Berne has been ordered by the Indiana Department of Environmental Management (IDEM) to eliminate combined sewers throughout the municipality. Legislation adopted by the city has mandated the removal of all septic systems.

"We've got a lot of work to do yet," Smitley told council, "but we're going to try and get finished by next month. We're finding that most people didn't even know they were hooked into a septic system."

Katrina. "Polluted Waters Drown Environmental Efforts: Drainage laden with bacteria and chemicals is flowing into Lake Pontchartrain, and raw sewage is being released into the Mississippi." That is the headline to this story today in the LA Times. Some quotes:
NEW ORLEANS — The high-stakes effort to bail out New Orleans is sending plumes of contaminated, brown, stinking water into Lake Pontchartrain, setting back years of effort to restore the environmentally sensitive home of Gulf Coast marine life.

After festering for two weeks in neighborhoods, commercial districts and industrial zones, the water is laden with bacteria, silt, petroleum products and possibly toxic substances.

City officials confirmed Tuesday that they were also releasing untreated sewage into the Mississippi River from one of two treatment plants operated by the New Orleans Sewerage and Water Board. * * *

Al Naomi, senior project engineer for the Army Corps of Engineers, agreed. "It will take years to clean up our estuaries. The lake was coming back with manatees and fish. Twenty years of effort has been wiped out in an afternoon storm surge."

Although few experts criticize the extreme measures being taken to save New Orleans, the practices are believed to violate federal laws in normal times.

"We have multiple disasters in Hurricane Katrina," said William R. Freudenburg, a professor of environmental studies at UC Santa Barbara. "Much of the disaster was caused by the initial decision of where to put the city's levees. It was turned into a human disaster by the worst response I have ever seen by the government. Now we have a disaster on one of the most environmentally sensitive and valuable wetlands in America."

Much of the nation's seafood catch spends some portion of its life in the marshes of Louisiana, areas that were damaged by the storm surge. On the east flank of New Orleans, marshlands have been stripped clean of vegetation. "It looks like the surface of the moon," Wagenaar said.

Mercury. The NY Times reports today:
The Senate narrowly defeated a resolution on Tuesday that would have called on the Environmental Protection Agency to rewrite rules for mercury emissions from power plants. Health and environmental groups say the present rules are too weak.

The vote was 51 to 47, largely along party lines. The resolution was brought up for a vote through a rarely used and rarely successful procedure, the Congressional Review Act. It allows lawmakers to challenge regulatory decisions.

Even if the Senate had passed the resolution, it had little chance to go further. Such challenges require approval of the House, which was unlikely to act, as well as the president's signature. * * *

The vote, in which 6 Democrats joined 45 Republicans for a majority, was widely viewed as a victory for power plant operators and other industry groups.

They generally prefer the current rule, the first to regulate mercury emissions from power plants. It is supposed to reduce emissions 70 percent by 2018.

The rule is based on system called cap and trade that allows a plant to exceed its permitted level of emissions by buying credits from a plant in the same region whose emissions are below what is allowed. * * *

Sponsors of the resolution to strengthen the rule argued that it would require all plants to upgrade with the best available pollution-control technologies and would achieve a greater reduction of emissions, up to 90 percent, in fewer years, creating substantial health benefits for people most vulnerable to mercury poisoning, including pregnant women and children. * * *

Opponents of the current rule say it fundamentally violates the Clean Air Act, which requires the best available technology to drive down all polluting emissions.

Posted by Marcia Oddi on Wednesday, September 14, 2005
Posted to Environment

Ind. Econ. Dev. - More on turning Reynolds into "Biotown, USA"

Updating the ILB entry from yesterday, see this story today in the Lafayette Journal & Courier. Some quotes:

REYNOLDS -- Indiana Gov. Mitch Daniels came to this White County community Tuesday to celebrate the beginning of the Reynolds "BioTown, USA" project.

The effort, which has yet to receive a price tag from state officials, involves the conversion of all energy sources in Reynolds to renewable energy, placing it among the first communities in the United States to undertake such an endeavor.

"We'll put Reynolds on the map for all of America to see," Daniels said during his speech to about 300 people, including the 120 students of Reynolds Elementary School, at the White County Fairgrounds.

While no formal timeline was disclosed, phase one of the BioTown plan centers on biofuels. An E85 fuel pump, which is 85 percent ethanol, will be located in Reynolds to support the flex fuel vehicles already in the town, Daniels said.

Phases two and three include plans to transform animal waste from area livestock farms into electricity and natural gas. More than 150,000 hogs are within a 15-mile radius of Reynolds as well as several sources of organic waste products, making it an ideal location for a manure gasifier or some similar type of technology to turn manure and biomass into energy for homes and businesses.

Ethanol. A related story today in the Crawfordsville Journal Review reports:
Seeing the creation of 60 agriculture industry jobs with a new Demeter Enterprises LLC ethanol plant scheduled at Linden means a boost in the economy, Lt. Gov. Becky Skillman said Tuesday night. * * *

The plant, to be adjacent to Cargill AgHorizons, is another 100-million gallon facility. There was an announcement in July of a 60-million gallon plant to be constructed in Putnam County.

Posted by Marcia Oddi on Wednesday, September 14, 2005
Posted to Environment | Indiana economic development

Tuesday, September 13, 2005

Ind. Decisions - Court of Appeals reverses IURC decision in sale of Merrillville water utility

Office of Utility Consumer Counselor v. Lincoln Utilities, Inc., and Indiana Water Service, Inc. (9/13/05)

The OUCC raises one issue for our review, which we restate as whether the IURC should have included property contributed in the aid of construction (“CIAC”) in its fair value determination of Lincoln. * * *

Rate-making is a legislative function. Pub. Serv. Comm’n, 235 Ind. at 81, 131 N.E.2d at 312. It is for the legislature to decide how the IURC should value utilities like Lincoln, which have high levels of CIAC and low fair values making it difficult for them to attract purchasers. Absent the legislative authority to do so, the IURC improperly included CIAC in Lincoln’s fair value.

Conclusion. Indiana Code Section 8-1-2-6 excludes CIAC from the calculation of a utility’s fair value. This is consistent with our decisions prohibiting a utility from earning a profit on the contributions of others. Thus, the IURC improperly included CIAC when it assessed Lincoln’s fair value at 90% of the Appellees’ agreed purchase price. We reverse and remand.

Posted by Marcia Oddi on Tuesday, September 13, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court rules in prosecutor misconduct case [Updated]

On Sept. 9, 2004 the ILB posted an entry quoting from the Louisville Courier Journal. Here is part of the story:

The charges, filed Aug. 4, involve a page of notes written on a legal pad by a defendant and passed to his attorney, who was questioning a police officer in February 2003 in preparation for trial.

Winkler and Goode admit that Goode ripped the page from the legal pad without the knowledge or permission of the defense team after the attorney and his client left the room, leaving the notes face down on a table.

See also this 3/10/05 ILB entry.

Today the Supreme Court issued a per curiam opinion in In the Matter of Cynthia L. Winkler and In the Matter of Blaine Goode (9/13/05), a disciplinary action. The 5-page ruling concludes:

For the violation of the defendant’s rights, for their deceit, and for their violation of the public trust, we find that the respondent, Cynthia L. Winkler, is suspended from the practice of law for one hundred-twenty (120) days, and that the respondent, Blaine Goode, is suspended from the practice of law for sixty (60) days, both with automatic reinstatement thereafter. These suspensions shall commence on a date to be decided by further order of this Court after a tempo-rary prosecuting attorney is arranged.

Costs of these proceedings are assessed against the respondents.

SHEPARD, C.J. and DICKSON, SULLIVAN and RUCKER, J.J., concur

BOEHM, J., concurs as to Winkler, but dissents as to Goode, believing facts justifying discipline more serious than a public reprimand are not established by clear and convincing evidence.

[Updated 9/14/05] The Louisville Courier Journal reports here today:
The high court's opinion, written by Chief Justice Randall Shepard, said "the recommended sanction is not adequate and does not sufficiently reflect the serious nature of Winkler's misconduct." The actions taken by the prosecutors were "blatant ethical violations," according to the Supreme Court. Shepard wrote that the prosecutors, "blinded by their zealous quest to prosecute the defendant … lost sight of basic ethical considerations."

Winkler and Goode were prosecuting Lewis Steward on methamphetamine charges in February 2003 when defense attorney Mark Clark, preparing for the trial, questioned a police officer involved in the case.

Steward communicated with Clark during the deposition by writing on a legal pad passed between the two of them. Steward left the pad face down on a table when he and Clark left the courtroom to confer in private.

Goode, who remained at the table with Winkler, ripped the page of notes from the legal pad and handed it to his boss. Winkler then "concealed them by placing the notes among a stack of files she had before her on the table," according to the Supreme Court.

Winkler wanted to compare Steward's handwriting to that on a methamphetamine recipe being used as evidence in the drug case.

Taking the notes "surreptitiously," instead of getting a search warrant, subpoena or court order, violated the attorney-client privilege, Shepard wrote. "Maintaining the confidentiality of communications between an attorney and a client is a foundational element of our justice system," he wrote.

Winkler said in an interview yesterday that "we apologize for violating Lewis Steward's attorney-client privilege. We were wrong and overzealous in the prosecution of a meth dealer. It will never happen again."

Goode, who had been a lawyer for only eight months before the incident, said he apologized "for my action in seizing the note. There is no excuse for it. I acted like the police officer I had been for 10 years."

Taking the notes violated a rule against obtaining evidence by means that violate a person's rights, the Supreme Court said.

The high court also accepted the hearing officer's finding that the prosecutors violated rules against making false statements and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation when they tried to hide the fact that they had the notes, and that the behavior was "prejudicial to the administration of justice," another violation.

Winkler "even went through the charade of looking through her files and not finding the missing notes she knew were there" after the defense team noticed they were missing, Shepard wrote.

Taking the notes concerns the justices, the opinion said, "but their attempts to conceal their misconduct are even more distressing." In that regard, "the most troubling aspect of this case is Winkler's insistence, even in the proceedings before the hearing officer, that she had done nothing wrong," the opinion said.

It noted the hearing officer's conclusion that Winkler has no understanding of why her actions were wrongful. "It is this lack of insight that leads us to conclude that a significant sanction is necessary to ensure that the seriousness of her misconduct is impressed upon her," it said.

Winkler has been an attorney for more than 20 years, the court noted. "In light of her insistence that she did nothing wrong," it said, "we have grave concerns that similar conduct could be repeated in the future."

Winkler said, however, that it will not. She and Goode said they intend to return to the prosecutor's office after their suspensions. "We accept responsibility for our actions and the punishment administered by the Supreme Court," Winkler said.

The Supreme Court concluded that all lawyers must "understand that it is unacceptable to tolerate litigation premised on 'the end justifies the means.'"

Posted by Marcia Oddi on Tuesday, September 13, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - New Supreme Court ruling on death penalty and mental retardation today [Updated 9/14/05]

Tommy R. Pruitt v. State (9/13/05, 42 pp.)

Boehm, Justice.

Tommy Pruitt was charged with the murder of Deputy Daniel Starnes of the Morgan County Sheriff’s Department. The prosecutor sought the death penalty based on the fact that the victim was a law enforcement officer killed in the course of his duties. Pruitt sought to have the death penalty charge dismissed on the ground that he is mentally retarded and therefore ineligible for the death penalty. The trial court denied the motion, and a jury subsequently convicted Pruitt and recommended death. The trial court imposed that sentence. We conclude that the trial court’s finding that Pruitt is not mentally retarded is supported by the evidence. We also hold that, with one exception, the Indiana statutory provisions governing determination of mental retardation are consistent with the Eighth Amendment as explained in Atkins v. Virginia, 536 U.S. 304 (2002). We affirm Pruitt’s conviction and sentence. * * *

Conclusion. The judgment of the trial court is affirmed. [p. 34]

Sullivan, J., concurs.

Shepard, C.J., concurs in result with separate opinion. [p. 35]

Dickson, J., concurs in result with separate opinion, in which Shepard, C.J., joins. [p. 36]

Rucker, J., dissents with separate opinion. [p. 37, which concludes at p. 42]

Conclusion. It is clear to me that Pruitt is mentally retarded even under a standard requiring proof by clear and convincing evidence. Under the relaxed standard the Court announces today, the fact of Pruitt’s mental retardation is even more apparent. Accordingly a death sentence is constitutionally and statutorily impermissible in this case. This cause should be remanded to the trial court with instructions to impose a sentence of a term of years.

[Updated 9/14/05] Kevin Corcoran reports in the Indianapolis Star today:
The Indiana Supreme Court voted 4-1 on Tuesday to reject convicted killer Tommy Ray Pruitt's request to take him off Death Row because he is mentally retarded.

Indiana has prohibited imposing capital punishment on the mentally retarded since 1994. However, the Supreme Court ruled that Pruitt, whose IQ has tested between 52 and 81, has not shown he is mentally impaired enough to have his life spared.

In addition, the high court struck down Indiana's requirement in state law that mental retardation be established by "clear and convincing evidence," saying the standard is too high and violates the U.S. Constitution.

Posted by Marcia Oddi on Tuesday, September 13, 2005
Posted to Ind. Sup.Ct. Decisions

Environment - South Bend County Council vote tonight on Tondu coal gasification plant

The South Bend Tribune reports today:

SOUTH BEND -- County Council members slated to decide tonight whether a coal gasification power plant can be built near New Carlisle say they want more answers. And council member Michael Kruk, D-District E, may have discovered a way to get what they want. According to Kruk, a vote against Tondu tonight may allow the company to provide the answers to the community that some believe is sorely needed.

"I'm looking at this with an open mind," Kruk said Monday. "I want to make the best informed decision I can."

The St. Joseph County Council is expected to vote tonight whether to allow a special use permit that would move Tondu Corp. a step closer to building the plant.

Many questions regarding the Tondu proposal center around the environmental effect the coal gasification plant would have on New Carlisle and the surrounding area, Mark Catanzarite, D-District G said Monday. But Catanzarite said finding more time to make a decision regarding the special permit would allow the County Council to give the issue its full attention.

"We've had a lot on our plate," Catanzarite said, and that plate has been stacked with items like the 2006 budget.

Regardless, the council must take some action on the Tondu proposal tonight. The St. Joseph County Council has 60 days to decide whether to approve the special permit after the county Area Board of Zoning Appeals gave the permit a favorable recommendation Aug. 3.

If the County Council does nothing tonight, council attorney James Olson said, the special permit will automatically be approved.

Kruk said if the County Council votes against Tondu tonight, it could waive the state statute that says Tondu has to wait at least six months to reapply for the special permit. That would allow Tondu to bring more information to the table in 30 to 60 days.

The council would need a two-thirds majority vote to do it, though, Olson said.

From Joe Tondu's point of view, he's done about all he can. Joe Tondu, president of Tondu Corp., said Monday that many of the questions cannot be answered until an environmental study is done by the Indiana Department of Environmental Management.

A special permit granted by the County Council today would allow that process to begin, he said.

If the state reports environmental effects [sic.], he said, the plant would move forward. If there are negative environmental effects, then the duck is dead in the water, so to speak, and the plans for the plant would not move forward.

In short, Tondu said, he would like the folks of St. Joseph County to just decide whether they want Tondu Corp. in the county. He said delays in the vote will keep him from working out other possible sites for the plant.

Here are links to earlier ILB entries referencing the Tondu proposal: 8/26/05 and 8/29/05.

Posted by Marcia Oddi on Tuesday, September 13, 2005
Posted to Environment | Indiana economic development

Law - In the regulatory arena, states rush in where the feds fear to tread

"States Rush in Where the Feds Fear to Tread" is the headline to a really interesting article today by Cindy Skrzycki, who writes a regular column for the Washington Post titled "The Regulators." Some quotes:

Even before Hurricane Katrina brought into high relief the sometimes rocky relations between the federal government and the states, it has become increasingly routine for states and localities to go their own way on the regulatory front, either making their own rules or filing lawsuits to shape regulatory policy.

State legislatures, attorneys general and regulators are intervening in areas, especially affecting the environment, where they don't think federal standards are stringent enough. The activist stance taken by New York Attorney General Eliot L. Spitzer against securities and brokerage firms, for instance, resulted in Congress and regulators at the Securities and Exchange Commission being more interested in tuning up federal rules.

Does this recall for you the "no more stringent" arguments from some members of the Indiana General Assembly? More from the column:
Ironically, the regulatory activism on the local front grows, in part, from Republican-backed shifting of authority to the states and the deregulation of large industries. The result, because some of the state regulation is grounded in litigation, has been huge settlements involving large industries, most notably tobacco, as well as more localized control.

"You see spontaneous state cartels. It's a parallel national government," said Michael S. Greve , director of the Federalism Project at the American Enterprise Institute . In one of his writings, he calls it preempting the national government, or "federalism upside-down."

States like California and New York traditionally have been activist regulators, but now "model rules" developed by state associations and individual initiatives are being pursued throughout the country.

"We have a mantra. Where the federal government is unable or unwilling to address an important air pollution problem, the states and localities will step in and fill that gap," said S. William Becker , executive director of state and local air pollution associations.

Becker's group is working on a model rule to curb mercury emissions from power plants because it thinks the recently issued federal mercury rule is weak and takes too long to implement. It also developed a "menu" of alternatives that states can use to beef up changes the Environmental Protection Agency made to address how expanded industrial facilities must control their pollution. And it has a model rule -- which nine states have adopted -- for states to reduce truck diesel emissions.

In another initiative, nine Northeast and mid-Atlantic states have banded together to form the Regional Greenhouse Gas Initiative to address global warming by using a state trading system to control emissions. * * *

Business is uneasy with the states' "regulation by litigation."

"As much as people bash the federal agencies, we would rather have them set the standards and then determine where there should be more flexibility. Attorneys general are not necessarily the right people to set regulatory policy -- even in their own states," said Lawrence Fineran , vice president for regulatory and competition policy at the National Association of Manufacturers .

Paul Ferber , political science professor at the Rochester Institute of Technology , said no one should be surprised that activist states have grabbed the regulatory reins. "When you push authority onto the states, you shouldn't be shocked when they actually do something," he said.

Posted by Marcia Oddi on Tuesday, September 13, 2005
Posted to Environment | General Law Related

Ind. Econ. Dev. - Daniels hopes to transform town of Reynolds so it's powered only by renewable power sources

"Hoosier burg to be pilot for energy project: Daniels hopes to transform town of Reynolds so it's powered only by renewable power sources" is the headline to this story by J.K. Wall in the Business Section of today's Indianapolis Star. Some quotes:

Gov. Mitch Daniels and the state's Department of Agriculture want to convert Reynolds, Ind., into BioTown, Ind., and make the community of 550 run entirely on renewable energy sources.

The BioTown project eventually could burn the methane gas produced from the town sewer and neighboring hog farms to generate electricity for Reynolds' homes and businesses.

But first, a state-formed task force will try to get the town's sole gas station to offer E85 fuel, a mixture of 85 percent ethanol and 15 percent gasoline. Then it hopes Reynolds residents alter their Pontiacs and pickups to use the fuel.

A Reuters report:
CHICAGO, Sept 12 (Reuters) - They cannot escape the stench, but residents of tiny Reynolds, Indiana, hope the oceans of hog manure produced nearby will power their homes and businesses some day soon.

"We're very excited," town president Charlie Van Voorst. "They're advertising us as a showcase for the world."

Indiana's energy conservation-minded Gov. Mitch Daniels will take his ethanol-powered recreational vehicle to Reynolds on Tuesday to designate the single stoplight town the world's first "Biotown."

Initially, the 500 townspeople will lease or buy vehicles that run on high concentrations of corn-based ethanol or soy diesel from soybeans.

The second phase will install power-generating equipment that burns gas made from manure, said Deborah Abbott of the state agriculture department said. The electricity generated will power homes and businesses.

"The goal is to create a new use for the manure that's surrounding the town -- as a biofuel," Abbott said.

"The hog farms are all around us. We're used to that smell -- something we live with," Van Voorst said. He added: "And they're talking about using our own (human) waste as a renewable resource."

Posted by Marcia Oddi on Tuesday, September 13, 2005
Posted to Environment | Indiana economic development

Ind. Courts - Allen County to separate justice expenses from other county expenses

The Fort Wayne Journal Gazette reports today:

Separating justice expenses from other county expenses will be one of Allen County’s top priorities for next year’s state legislative session.

The County Council, commissioners and other officials Monday brainstormed ideas for what legislative issues to pursue next year. The group agreed that financing the justice system – courts, clerk, jails, sheriff – should be a high priority.

Commissioner Nelson Peters said he would like for a separate property-tax levy to be created just for the justice system. The levy would not increase taxes, but he said it would let taxpayers know how much of their property taxes goes toward those programs.

“It puts the onus of administering that program to where it belongs,” he said.

Commissioner Linda Bloom said a separate tax levy would make those areas more accountable for their spending instead of having them lumped into the general county budget. * * *

Expenses for law enforcement and judicial programs account for 70 percent of Allen County’s 2005 general fund budget. They cost more than $52.4 million. * * *

County officials also were quick to note that they did not believe the sheriff or judges were mismanaging money, but a separate levy would increase public scrutiny and accountability.

The group also discussed several items, including storing records electronically and publishing claims online instead of in newspapers.

Posted by Marcia Oddi on Tuesday, September 13, 2005
Posted to Indiana Courts

Law - May jurors text-message each other? And how does this relate to the Roberts hearings?

An ILB entry yesterday reported on the Colorado Supreme Court's decision on the question of "whether every message produced on government-owned equipment is open to public scrutiny, even if the subject is intimate."

Today the Chicago Tribune reports: "Judge won't remove 2 who text-messaged in botched arrest case." Some quotes:

Two jurors who admitted text-messaging each other will be allowed to continue serving in the civil trial in which a family is suing Chicago police over an 8-year-old boy's arrest for murder, a civil court judge ruled Monday.

Judge Randye Kogan reaffirmed her ruling of last Thursday that the male and female jurors could remain on the panel in the wrongful arrest suit stemming from a police investigation into the 1998 slaying of 11-year-old Ryan Harris.

Kogan's latest ruling came after an anonymous letter last week singled them out for allegedly using their cellular phones to text-message each other. Last week she decided to keep the two on the jury while Cook County sheriff's investigators scoured their cell phones to ensure they did not discuss the case.

Kogan noted Monday for the record that the city disagreed with her rulings and offered the city a chance to file a written brief objecting to the decision.

Michael Sheehan, a lawyer for the city, said the city believes the jurors should be removed, but attorneys are looking into the law before deciding whether to issue a written brief. Monday's court hearing was markedly tamer than Friday's, when the city's request to have Kogan reconsider her decision resulted in a lawyer from each side briefly thrown out of court.

Neither e-mails nor text-messaging existed when Justice Rehnquist was confirmed as Chief Justice in 1986, or even when Justice Breyer was confirmed eleven years ago. New technology creates new legal issues. That is the point of a NY Times Magazine article published August 28, 2005, titled "Roberts v. the Future." To quote George Washington University law professor Jeffrey Rosen:
Since Roberts's nomination to replace Sandra Day O'Connor was announced in July, Senate staff members have been combing through legal memos that Roberts wrote, many while he was still in his 20's, hoping to find hints of his views about the most controversial issues of the past generation -- from civil rights to affirmative action to abortion. It's not surprising that lawyers, who are trained to look backward, instinctively deferring to precedent and tradition, would parse memos from two decades ago as clues to how Roberts would perform on the court.

But in the case of Supreme Court nominees, looking backward may not be the most reliable way to predict the future. * * *

That would represent a missed opportunity: in the next 10 or 15 years, as technology and science continue to advance and America's demographic profile continues to change, the Supreme Court will, in all likelihood, be asked to decide a fascinating array of divisive issues that are now only dimly on the horizon. To try to identify more concretely what those issues might be, I recently canvassed a number of technology experts, bioethicists and legal scholars.

Posted by Marcia Oddi on Tuesday, September 13, 2005
Posted to General Law Related

Ind. Law - Three lawyers sue New Albany for fees of $750,000

The Louisville Courier Journal reports today, in a story by Ben Zion Hershberg that begins:

Three lawyers have sued the city of New Albany, demanding $750,000 in fees for working on the settlement of a dispute over sewage treatment between the city and Georgetown.

The city contends they are owed far less -- no more than roughly $33,000.

The outcome could have a significant impact on New Albany's plans to rebuild a part of its sewer system that serves Georgetown.The issues involved date to 1999, when New Albany demanded an increase in the fees it charges Georgetown for treating its sewage.

The three New Albany lawyers, Lee Cotner, Richard Fox and Steve Gustafson, were asked to represent the city by Lee Buchanan, the city attorney at the time. They agreed to a fee of a third of what they recovered.

Last March Georgetown and New Albany settled their dispute. * * *

Fox said the city has refused to pay the lawyers' claim, which includes interest due for late payment.

"We have an agreement" documented by correspondence with city representatives, he said. The city, however, contends that the $1.9 million payment was not part of the case the three lawyers were asked to handle. Fox declined to comment on that argument.

Posted by Marcia Oddi on Tuesday, September 13, 2005
Posted to Indiana Law

Monday, September 12, 2005

Law - The best podcasts of the Roberts hearings; transcript

NPR has the best podcasts, from what I have seen. Check out their access page, here.

Fidelis (which I recommended earlier, based on their description) appears to be a bust. Day one was NOT a podcast of the hearing, but rather a podcast of a 5-minute interview with someone who had listened to the testimony, probably via NPR.

The NY Times website has a complete transcript of Day 1 of the Roberts hearings.

Posted by Marcia Oddi on Monday, September 12, 2005
Posted to General Law Related

Law - Should some state e-mail records be kept private?

According to the Denver Post:

The state's open records law does not cover all records that a public agency makes, maintains or keeps, the [Colorado Supreme Court] said. Instead, "public records" includes only those records that a public agency makes and maintains for use in exercising functions required or authorized by law.
The headline to the story is "Racy e-mails to remain private: State Supreme court rules on whether every message produced on government-owned equipment is open to public scrutiny, even if the subject is intimate."

[Thanks go to Howard Bashman, who has just posted links to the story and related information from Colorado.]

More from the Post story:

The public has no right to see the intimate e-mails of public employees such as those sent between former Arapahoe County Clerk Tracy Baker and Leesa Sale, his assistant chief deputy and girlfriend, the Colorado Supreme Court ruled today. * * *

"After considering the content of the e-mail messages...we conclude that not all messages at issue here have a demonstrable connection to the performance of public functions or involve the receipt or expenditure of public funds," the ruling said.

"It is apparent that a large portion of the e-mail messages contain only sexually explicit exchanges between Baker and Sale."

They were sent as part of their personal relationship and not in the performance of their duties. * * *

At its root, the case decided whether every message produced on government-owned equipment is open to public scrutiny, even if the subject is intimate.

In January 2003, the Colorado Court of Appeals halted the release of 622 exchanged between Baker and Sale. But county commissioners and the Rocky Mountain News fought in court in court for the release of all the e-mails. They argued the e-mails were created on public equipment.

According to this story in the Rocky Mountain News: "Arapahoe County voters recalled Baker after the scandal about his extra-marital affair with Sale became public. Sale no longer works for the county."

Here is a link to the decision, The Denver Publishing Company d/b/a/ Rocky Mountain News v. The Board of County Commissioners of the County of Arapahoe, Colorado, also thanks to Mr. Bashman.

Posted by Marcia Oddi on Monday, September 12, 2005
Posted to General Law Related

Ind. Courts - Ancient historical documents available for hands-on display at Indiana Supreme Court

Just released by the Indiana Supreme Court:

A number of original historical documents will be on display in the Indiana Supreme Court Courtroom on Thursday, September 15 from 4:30-6:30 p.m., Chief Justice Randall T. Shepard announced today.

The Remnant Trust, of Hagerstown, Indiana, will bring a selection of original documents from their extensive collection. They plan to have a first edition of the Federalist Papers, an early copy of John Locke’s Treatise on Government, and one of the original copies of the U.S. Constitution sent out by President Washington, to name a few.

“This is a once in a lifetime opportunity to see up close and in person some of the documents that shaped our legal heritage. The Remnant Trust believes these documents should not be sealed in glass cases but accessible to more people in more non-institutional settings,” said Chief Justice Randall T. Shepard.

Still and video-photography, with lights, is encouraged. Representatives of the Remnant Trust will be available to discuss the documents and to explain more about their organization.

In addition, inside the courtroom you will also be able to see a demonstration of the court’s new virtual courthouse tour project and the digitization of Indiana’s own early legal documents. These documents will soon be available over the web both in their original form and with transcriptions, thanks to a joint effort between the Indiana Supreme Court, the Indiana State Archives, and the Indiana Historical Bureau.

For more on the Remnant Trust, see this Opinion piece from yesterday's Indianapolis Star.

Posted by Marcia Oddi on Monday, September 12, 2005
Posted to Indiana Courts

Law - "Michael Chertoff left a life-tenured judgeship on the U.S. Court of Appeals for the Third Circuit for this?"

"Michael Chertoff left a life-tenured judgeship on the U.S. Court of Appeals for the Third Circuit for this?" So reads a great observation by Howard Bashman of How Appealing in this entry.

My own observation is that Justice Arthur Goldberg probably asked the same. From Wikipedia:

In 1965, Goldberg was persuaded by President Johnson to resign his seat on the court to replace the late Adlai Stevenson as the US Ambassador to the United Nations. Goldberg accepted only after much prodding by Johnson, in the hope of negotiating a settlement to the escalating conflict in Vietnam. In that post, Goldberg clashed with Johnson over the course of the Vietnam War. Goldberg, frustrated with the war in Vietnam and longing to return to the bench, resigned from the ambassadorship in 1968. Goldberg was mentioned as a potential nominee for Chief Justice when Earl Warren announced his retirement in 1968, but was passed over in favor of Abe Fortas (whose nomination was eventually successfully filibustered).

Posted by Marcia Oddi on Monday, September 12, 2005
Posted to General Law Related

Gov't. - The money pressures on lobbyists, from lawmakers, and the money pressures on lawmakers

The Washington Post has an interesting story today with quotes such as: "Frederick L. Webber, a longtime denizen of Washington's lobbying corridor, showed up at work one day last week and found on his desk a dozen fundraising requests from members of Congress. He threw them all in the trash." More:

In a self-described epiphany, Webber, president of the Alliance of Automobile Manufacturers, drafted a large check to help families displaced by Hurricane Katrina and decided that an imperative of his vocation -- political giving -- had finally gone too far.

How could lawmakers be asking for money for their reelections, he asked himself, when thousands of Americans were desperate for aid along the Gulf Coast?

"It really hit home when I was writing out that check," Webber said. "Political fundraising in this town has gotten out of control."

It's a message he was repeating passionately at lunches and in private conversations with other lobbyists all over town last week. * * *

Webber told K Street colleagues that radical change is needed in election laws: Donations should be further limited, campaign seasons should be shortened and lawmakers, somehow, should be freed up to do more legislating and less soliciting.

He also made clear that the hurricane's devastation was what prompted his proselytizing. "All of a sudden I asked, 'What are the priorities here?' " Webber said in an interview. "It was an easy decision to make. I couldn't justify making those $500 to $2,500 [campaign] contributions. It just didn't fit."

Lawmakers' constant bombarding of lobbyists with fundraising invitations, he said, "is crazy." Yet the daily rush of fundraisers hardly slowed last week, even with the tragedy of New Orleans.

"No sooner is someone elected or reelected than they start their fundraising right out of the box," Webber complained.

"Members of Congress are trapped. They have to continue to raise money if they're going to survive, and I sympathize with them," Webber added. "But I've seen a lot of people -- very good people -- leave Congress because they're tired of fundraising. This thing has gotten away from us."

Posted by Marcia Oddi on Monday, September 12, 2005
Posted to General Law Related

Ind. Courts - Court apparel of some surprise, vex lawyers, judges

"Like Mom said: 'First impressions count'-- Court apparel of some surprise, vex lawyers, judges." That is the headline to this entertaining story today in the Munster (NW Indiana) Times, by RuthAnn Robinson. It begins:

Judges wear robes. Lawyers wear suits.

What are some defendants thinking?

Some people show up for court hearings wearing the darnedest things, say the lawyers who advocate for them and the judges who hear their cases.

A few recent examples:

A woman begging the judge to go easy on her cocaine-dealing son because she needed him to help her at home wore a black T-shirt emblazoned with the sequined phrase, "It's all about me."

A young man appearing in court on drug dealing charges sported a T-shirt with a big picture of the soles of a pair of feet with a toe tag. The caption read, "He was a snitch."

One woman came to court to ask the judge for a favor, which the judge granted -- to turn her felony conviction into a misdemeanor.

She completed probation successfully.

She did everything she was ordered to do.

She was wearing a T-shirt that stated, "Every day I add another name on my list of people who PISS ME OFF!"

Posted by Marcia Oddi on Monday, September 12, 2005
Posted to Indiana Courts

Ind. Law - Indianapolis firm, Hatchett & Hauck LLP , adds another attorney

I've received the following announcement: Hatchett & Hauck LLP is pleased to announce that Michael J. Reeder, formerly legal counsel for the Indiana Department of Natural Resources, has joined the firm. Hatchett & Hauck LLP is an Indianapolis law firm focusing on environmental issues.

The firm is now located at 111 Monument Circle, Suite 301, Indianapolis, 46204-5124. Main phone 317-464-2620.

Posted by Marcia Oddi on Monday, September 12, 2005
Posted to Indiana Law

Ind. Gov't. - State Budget Agency featured

The Fort Wayne Journal Gazette today has a story on the state budget agency and its head, Daniels appointee Charles Schalliol. The story details some of the ways the OMB is using to get the state budget in the black and to better control how the state spends the taxpayers' money, including:

First, his office now signs off on all state contracts, approves all new rules and regulations and looks at the spending of quasi-governmental agencies.

OMB also now contains a small office focusing solely on government efficiency and planning. It has just five people, but its whole job is to look at the big picture – how should state government be organized? What should be in our strategic plan?

And next will be a systematic review of every program in state government – not just the glaring, troublesome ones on the top. “We need to know what are our objectives are with each program and whether we are meeting them,” Schalliol said. “If not these programs will go away.”

Part of OMB’s new focus is holding agencies accountable, too. That is why Daniels – with Schalliol’s help – came up with specific goals and metrics for each agency to be deemed a success.

Even the fact that OMB exists is different.

The State Budget Agency used to direct state budgeting issues while a handful of independent offices dealing with other financial issues all existed separately. Now OMB is the umbrella agency for a host of smaller finance agencies – including the Department of Revenue, Department of Local Government Finance, the Public Employees’ Retirement Fund and several other entities.

All those agencies still have individual directors and commissioners – but they report directly to Schalliol. In all he oversees 1,560 employees and combined budgets of about $116 million.

The new structure was Schalliol’s idea when he was the first public appointment of Daniels’ new administration. “I told the governor that all the financial functions needed to be together somewhere so we could manage the fiscal affairs more closely,” he said.

Because of the restructuring, some positions have been combined and there are fewer employees overall. It also has allowed for more professional work in some cases. For instance, prior to Schalliol’s tenure a dozen or more people in various state government offices handled bonding. Now it is down to two people, and the state is getting better pricing. He also plans this fall to recruit new financial talent for state government at state universities and colleges and show them that there is room for growth and movement within the OMB’s numerous agencies.

Posted by Marcia Oddi on Monday, September 12, 2005
Posted to Indiana Government

Environment - Star story today about EPA's proposed change in power plant pollution rule

The Indianapolis Star's Tammy Webber has a long story today on the front page of the City & State section, headlined "Dispute rises over potential for pollution: Planned EPA policy change called threat to air quality." The piece is about "a proposed change to federal regulations could allow some older plants to avoid installing anti-pollution scrubbers -- and possibly emit more pollution -- if and when they're modernized.
" Some quotes:

In the past, plants built before the 1970 Clean Air Act were exempted from installing modern pollution controls unless they made improvements beyond routine maintenance. Several utilities, including some in Indiana, were sued by the U.S. Environmental Protection Agency in 1999 for allegedly making significant changes to their plants but failing to install the scrubbers.

Now, the EPA wants to change its rule in a way that essentially would reflect an argument that utilities have been making in court, according to a draft of the proposed rules leaked to the media late last month.

Under the draft, whether a modernized plant needed scrubbers would be determined by how much pollution it could potentially emit every hour, rather than the current standard of how much it emits annually.

That scenario, environmentalists contend, could allow overall pollution to rise if the improvements allowed a plant to operate longer hours.

"The environment really doesn't care about hourly releases," said Eric Schaeffer, director of the Environmental Integrity Project and former head of the EPA's Office of Regulatory Enforcement. "What matters is the total increase, how much (pollution) you're bringing into an . . . area." * * *

In court, the EPA had argued against an hourly rate, saying it would increase emissions. But now the agency says a pollution rule signed in March might make its past regulations obsolete.

That rule targeted pollution that drifts from one state to another, requiring deep reductions from coal-fired power plants in 28 states. Under the rule, Indiana by 2015 should see emissions of sulfur dioxide, which contributes to heart- and lung-damaging microscopic particles, drop by 56 percent, and emissions of nitrogen oxides, linked to smog, should drop by 68 percent, according to EPA estimates.

EPA spokeswoman Eryn Witcher said the draft proposal on the hourly emissions will not be finalized for a few weeks and would not discuss specifics.

"But we find we get far better results under (the multi-state rule), and that's the direction we're moving," she said. "We're committed to permanent, significant emissions reductions from power plants."

Witcher would not say whether the EPA might drop its lawsuits against utilities. Some of those companies, including Southern Indiana Gas and Electric, settled the suits by agreeing to install pollution controls.

Ohio-based Cinergy, which has several plants in Indiana, still faces a lawsuit for allegedly failing to upgrade pollution controls. The company has installed many of the pollution controls that the EPA sought in the suits, spokeswoman Angeline Protogere said.

Here is a Washington Post story on this issue from Aug. 31st (via the Seattle Times). Here is a NRCD backgrounder.

Posted by Marcia Oddi on Monday, September 12, 2005
Posted to Environment

Law - Coverage of John Roberts hearings today

The John Roberts hearings begin today. Much of today will be consumed by introductory statements from each of the members of the Senate Judiciary Committee. The actual questioning begins tomorrow.

C-SPAN 1 will present much of the hearing live today, as the House will hold only a pro forma session. A "hearing preview" will be broadcast C-SPAN 1 at 10:30 a.m. Indianapolis (EST) time.

Our local NPR radio station, WFYI, will carry the entire set of hearings live, with Nina Totenburg commenting, followed by a one-hour wrapup each day from Linda Wertheimer. See this NPR page.

[More]
Check out the Legal Talk Network, which is said to include:

Updates on the hearings throughout each weekday
Courtside reports by Supreme Court Correspondent Tony Mauro
Highlights from the discussion in top legal blogs
Webcasts from the Roberts' hearing, from PBS and The National Law Journal

Posted by Marcia Oddi on Monday, September 12, 2005
Posted to General Law Related

Sunday, September 11, 2005

Ind. Courts - Council gives in, judges get stipend

"Council gives in, judges get stipend" is the headline to a story by Larry Thomas in the Jeffersonville Evening News/New Albany Tribune. Some quotes:

The Clark County Council and the county's judges appeared to be headed for a showdown this week. But a day after cutting a $5,000 local contribution to the judges' salaries, the council relented.

The state pays trial court judges $110,500 per year, but gives county councils the options of contributing up to $5,000 annually to their salaries. Until July 1, judges had been making $90,000 per year and had not had a pay increase from the state in nearly eight years.

Due to the $20,500 increase from the state, the council voted 6-0 on Wednesday to take away the local contributions to the salaries of the county's four judges and one magistrate, and place the money into a fund that pays jury expenses. On Thursday, following an impassioned plea from Clark Superior Court No. 3 Judge Steven Fleece, the board voted 4-1, with one abstention, to return the money to the judges' salaries.

Fleece had asked the council to reconsider its decision for all of the judicial salaries, but was particularly concerned about Magistrate Ken Abbott, who received only 80 percent of a judge's pay but has most of the authority of an elected judge. * * *

According to the National Center For State Courts Survey of Judicial Salaries, published Oct. 1, 2004, the pay for Indiana's trial court judges had been 49th among the 50 states and District of Columbia. At the time the survey was published, only West Virginia and Montana paid judges more poorly. The state's decision to increase the pay by $20,500 - which was about $10,000 less than what was recommended by a commission appointed to study salaries for state officials - puts Indiana's trial court judges at about the national average as of a year ago.

Some council members seemed less moved by sympathy than economics. During his Thursday morning discussion with the panel, Fleece implied that he could give 15,000 to 25,000 traffic tickets per year to municipal courts and the county would lose tens of thousands of dollars in general fund revenues. * * *

Councilman R. Monty Snelling said he feared a judicial mandate and subsequent lawsuit over the funds.

"The judges have hair triggers when it comes to lawsuits," Snelling said. "We're trying to work with them and hopefully they'll try to work with us, in the future."

If the above sounds somewhat familiar, it was also the basis of a story in the Louisville Courier Journal, quoted in this ILB entry last Friday.

And a reminder that my first monthly column will appear in the September issue of Res Gestae, which I am told will be in the mail this week.

My column is called "To elaborate ...". I will use the longer format to investigate and expand upon topics first mentioned in The Indiana Law Blog.

The topic of my first column is judicial mandates and the separation of powers. I plan make a copy of the column available here, to ILB readers, this Wednesday.

Posted by Marcia Oddi on Sunday, September 11, 2005
Posted to Indiana Courts

Environment - "Delaware County lacks CAFO regulation"

"Delaware County lacks CAFO regulation" was the headline to a story by Seth Slabaugh Friday in the Muncie StarPress. Some quotes:

MUNCIE - Given the governor's goal of doubling pork production in Indiana and the influx of Dutch dairy farms in this region of the state in recent years, you might think Delaware County government officials would have adopted a CAFO ordinance by now. Surrounding counties already have done so, are doing so, or have debated doing so. * * *

Delaware County hasn't adopted an ordinance to regulate CAFOs because "CAFOs have not been an issue in Delaware County," said Marta Moody, director of the city-county planning commission. "Our primary agricultural products have been grain, and the ag sector here has not gotten into the CAFO arena."

Delaware County's zoning ordinance governing livestock was written in the early 1970s, Moody said. The ordinance allows livestock and other animals to be raised in the farm zone. The only restriction is that the livestock cannot be raised within 200 feet of a residence, church, school or hospital.

The Indiana Department of Environmental Management regulates the impact of CAFOs on water quality, but concerns about odors, traffic, quality of life and so forth are left to the jurisdiction of local governments.

IDEM requires CAFOs to obtain construction and operating permits. The state doesn't allow CAFOs in floodways, and it also regulates the application of manure onto the land. The state also requires emergency spill response plans, record keeping and inspections.

"There have been a lot of changes in the (livestock and poultry) industry and a lot of changes in the planning arena (since the 1970s)," Moody said. "So it's definitely time to take a look at things and see what will work for Delaware County." She said CAFO regulations would have to be enacted by county commissioners through an amendment to the zoning ordinance.

The article includes a survey of the minimum distance that a concentrated animal feeding operation must set back from a residential neighbor in the various counties of East Central Indiana.

Posted by Marcia Oddi on Sunday, September 11, 2005
Posted to Environment

Ind. Decisions - Court of Appeals upholds award from phone book company

The Elkhart Truth reported yesterday:

A three-judge panel of the Indiana Court of Appeals has upheld a jury award of $200,000 against a northern Indiana telephone book publisher that it says made fraudulent statements to a Fort Wayne business in connection with an advertising contract.

The Appeals Court upheld a Fort Wayne jury's decision last April to award nearly $53,000 in compensatory damages and $147,000 in punitive damages to Stellhorn One Hour Photo.

The decision, America's Directories Incorporated v. One Hour Photo d/b/a Stellhorn One Hour Photo (9/8/05), is available here.

Posted by Marcia Oddi on Sunday, September 11, 2005
Posted to Ind. App.Ct. Decisions

Law - John Roberts hearings begin tomorrow

Although the hearings schedule was moved back a week, it remains basically the same. The links on this ILB post from Saturday, September 3rd remain good: "Watch Roberts hearings via C-Span next week or listen to them at your leisure via podcasts."

Tomorrow, Sept. 12, 2005, will be the First Day of Senate Judiciary Committee Confirmation Hearings for John Roberts to be Chief Justice. They may be viewed LIVE and uninterrupted (via computer) on C-SPAN3 at 12 pm ET (that is noon D.C. time, 11 am Indy time).

C-Span's schedule for tomorrow (Monday) shows that they also anticipate showing the confirmation hearings live on C-Span 1 and 2 tomorrow, if the House and/or Senate adjourn in time. The hearings also will be rebroadcast in the evening.

Here is C-Span's Supreme Court nomination page.

Here is the Senate Committee on the Judiciary page; it contains links to a good deal of information.

Finally, as I noted in the earlier post, a Catholic organization, Fidelis, will be making podcasts of the Roberts hearings available. These are essentially MP3 files you can listen to on your computer or iPod, or save to CD-ROM. For automatic downloading via iTunes, you can subscribe to the Fidelis Podcast Network here.

Posted by Marcia Oddi on Sunday, September 11, 2005
Posted to General Law Related

Environment - What is it like to live near an ethanol plant?

The Muncie StarPress reports today:

Because of the possibility of an ethanol plant being sited in Delaware, Randolph or another nearby county, The Star Press sent reporter Seth Slabaugh and photographer Kyle Evens to Illinois on Aug. 29 to find out what it's like to live near such a factory.
Some quotes from the lengthy story:
PALESTINE, Ill. - Robert Mitchell lives with a Lincolnland Agri-Energy ethanol plant in his back yard.

When he looks out his kitchen window, Mitchell can see the plant's pair of 200,000-bushel corn silos, four 750,000-gallon fermentation and beer tanks, water-cooling towers, distillation tanks, a million-gallon ethanol storage tank farm, molecular sieves, a smokestack, train cars, semi tractor-trailers and buildings.

"They're very nice and friendly neighbors, and it's very good for the community because it brings jobs," Mitchell said. "But I've got a 6,000-square-foot house I can't give away."

The reasons? Noise, odor and fear.

A pro-business community, Palestine welcomed the ethanol plant, which brought 31 jobs to town when it opened last year. Community leaders say those jobs and other economic benefits outweigh the disadvantages of a little noise and odor. One neighbor says the plant lets out a bothersome, uninterrupted "roar." The general manager counters that the noise is more of a "hum" and that no neighbors have complained to him about it.

And then there's the odor the plant gives off. "I think it smells good, like rising bread, but some don't like it," Mitchell said.

But if you live close enough to the factory, the sweet scent it produces can enter your house and stick to furniture, clothing and bedding, according to one neighbor.

A second story today is headlined "Ethanol refinery helps railroad, trucking, farming industries." Some quotes:
PALESTINE, ILL. - The Lincolnland Agri-Energy ethanol plant is filling economic development officials with enthusiasm.

Besides the construction jobs and the 31 full-time, permanent jobs the business created, it is helping the regional railroad and trucking industries, boosting the price of corn by several cents a bushel, drawing international attention, and possibly attracting new industry. * * *

Ethanol and dried distillers grain might not be the only so-called "value-added" products that Lincolnland produces.

"There are a lot of compatible industries that fit in," [[Bob Berty, executive director of Crawford County Development Association] said. "For example, ethanol plants emit carbon dioxide, which can be used to make dry ice."

He added: "There are a lot of studies about this refinery. I keep calling it a refinery, because it's exactly the same situation that goes on in a refinery. From the road, it looks like a grain storage facility. But inside, it looks like a refinery, with all the piping and chemical processes that go on. It's like a smaller version of an oil refinery when you go through there.

"We won't know the full affect on the economy for several years, but it will be extremely positive. It's made people feel positive about things. It was built so it could double its capacity relatively easy."

Posted by Marcia Oddi on Sunday, September 11, 2005
Posted to Environment | Indiana economic development

Ind. Law - Review of recent death penalty commutations in Indiana

The Louisville Courier Journal's Lesley Stedman Weidenbener's Sunday column is headlined "Governors find leeway in granting clemency: Daniels, Kernan cited solid reasons for mercy." It begins:

For nearly five decades, no Indiana governor chose to spare the life of anyone on death row.

The state executed a dozen inmates during that period, which included a brief span when the U.S. Supreme Court put a moratorium on capital punishment.

But in the past 13 months, two governors have spared three men from death.

One inmate had an IQ just above the threshold of mental retardation and one's guilt was questioned by some because of evidence that never reached a court.

The third -- Arthur Baird, whose death sentence was commuted by Gov. Mitch Daniels late last month -- has been determined by doctors to be mentally ill and delusional. Life without parole wasn't an option at the time of his trial.

A decade ago, decisions to commute death sentences might have seemed politically difficult, if not impossible, according to many legal experts.

But today, governors seem to have more latitude to spare the lives of some condemned killers and execute others without incurring the wrath of voters, large numbers of whom still support capital punishment.

Posted by Marcia Oddi on Sunday, September 11, 2005
Posted to Indiana Government | Indiana Law

Ind. Law - Floyd County eminent domain suit watched [Updated]

The Louisville Courier Journal's Ben Zion Hershberg writes today, in a story headlined "Eminent domain lawsuits watched: Sewer fight in Floyd could change limits," that:

A legal battle under way in Floyd County could set new limits on the way privately owned companies use eminent domain to take land from property owners.

The dispute is over lawsuits filed last month by Thieneman Environmental LLC, a newly created sewer system.

The company wants to take a 60-foot-wide swath of land from three neighbors to install a sewer line that would run from the company's planned plant in the Heritage Springs subdivision near Greenville to Jersey Park Creek.

The subdivision's developers, Steve and Don Thieneman, also own the sewer utility.

"I'm going to fight it," said Anna Mae Gahlinger, one of the property owners Thieneman Environmental sued and a vocal opponent of Heritage Springs. * * *

"You just don't take private property over the serious objections of its owner" because a private developer wants it, Gahlinger said.

Greg Fifer, the developers' lawyer, said he believes the legal issues are clearly in his clients' favor.

Indiana law gives utilities the right to take land needed for a public purpose, Fifer said, and it doesn't matter if the utility is privately owned.

The fact his clients own the sewer company and the subdivision it will serve doesn't matter, Fifer said. The Indiana Utility Regulatory Commission certified Thieneman Environmental as a utility in June, and that supports the company's right to take easements for its sewer lines to provide service to homeowners, he said.

The company would pay an appraised value for the easements.

But Mike Mullett, an environmental and public-interest lawyer from Indianapolis, said there might be ways for Gahlinger and other property owners to fight.

"You cannot exercise eminent domain for a private purpose," Mullett said. "It must be exercised for a public purpose."

The eminent domain suits were filed in Floyd Circuit Court. Judge J. Terrence Cody has recused himself and Clark Superior Court Judge Steven Fleece has been appointed to handle them.

The General Assembly created an interim committee on eminent domain, which has been meeting this summer. Its next (second) meeting is set for September 21 in the House Chamber.

[Updated 9/12/05] The Indianapolis Star today is also carrying, here, the Louisville Courier Journal story.

Posted by Marcia Oddi on Sunday, September 11, 2005
Posted to Indiana Government | Indiana Law

Saturday, September 10, 2005

Law - Fascinating story about John Roberts

Sunday's Washington Post has a long and fascinating story by Michael Grunwald about John Roberts and about "the most rarified constellation of the legal galaxy, the exclusive club of Supreme Court appellate specialists." It begins:

John G. Roberts Jr. built a golden reputation as a "lawyer's lawyer" without doing most of the things that lawyers do. He never filed a lawsuit, addressed a jury, cross-examined a witness, took a deposition or negotiated a deal. He never advised a client on a tax return, a plea bargain, a restraining order, a will or a divorce. If he ever got into a confrontation with opposing counsel, no one seems to remember it.

That is because Roberts has spent most of his career as a star -- by all accounts, a superstar -- in the most rarified constellation of the legal galaxy, the exclusive club of Supreme Court appellate specialists. Now that Roberts has been nominated to sit on the court as its leader instead of standing before it as an advocate, his 17-year membership in that genteel, apolitical, almost academic club of overachievers may reveal more about his legal mind than his six-year stint as a brash, young Reagan administration aide or his two-year tenure as a federal judge.

Posted by Marcia Oddi on Saturday, September 10, 2005
Posted to General Law Related

Ind. Gov't. - Local budgeting for courts, law enforcement, etc. - some recent stories

Vigo County. The Terre Haute Tribune Star reports today:

Turning to fee-based funds for some office supplies and reallocating a few employee salaries into a reassessment fund, the Vigo County Council has avoided an excessive property tax levy to pay for a new sixth court. * * *

Council President Robert Hellmann said several of the fee-based funds support only a short-term solution. However, Hellmann is banking that a new sixth court will reduce the time people are kept in the Vigo County jail, thus reducing jail expenses and expenses on the overall county budget.

Hellmann said part of the county's problem with a high jail inmate population is an overburden of caseloads on the judicial side of the criminal justice system.

"Now we are increasing the additional resources to deal with these cases by 20 percent. If we can bring the time on a major felony case from arrest to disposition, where somebody is in jail, from eight months down to six months, that should be more than sufficient to reduce that jail population and get us into compliance with the 268 inmate count," Hellmann said.

Vigo County is under an agreement with the Indiana Civil Liberties Union that the jail's population not exceed 268 inmates. The inmate count on Thursday was 305.

The council budgeted six new full-time employees and one-part employee into a new sixth court, slated to start proceedings Jan. 1.

Delaware County.From the Muncie StarPress:
MUNCIE - Delaware County officials - still smarting over the 1970s-era lawsuit over unconstitutional conditions in the county's former jail - are again struggling with overcrowded conditions in the county lock-up.

This time, however, the focus is on hundreds of thousands of dollars spent each year housing inmates in other counties to avoid overcrowded conditions in the jail in the Delaware County Justice Center, which was built to settle the 1978 lawsuit.

The jail, which has been expanded to allow 230 inmates, is more than maxed out with 275 to 305 inmates each day, with the excess being sent to other counties at a rate of $35 per inmate per day.

The commissioners - who each month approve $35,000 to $40,000 in payments to other counties for housing local inmates - are working with local judges and Sheriff George Sheridan to ensure that fewer non-violent offenders are sent to jail and more offenders are sentenced to home detention.

Officials say they have spent $600,000 so far this year housing adult and juvenile offenders out-of-county and will seek another $300,000.

"We'd like to see more electronic monitoring, and people released from jail who are not violent offenders," Commissioner Tom Bennington said. "The judges are looking at all that."

The commissioners said this week they were close to an agreement with local judges that should help overcrowding. The commissioners met with local judges in August to find ways to alleviate overcrowding problems at the jail and reduce the amount spent to house inmates in other counties.

That is an expense paid by the commissioners, who said they have signed claims for payment to Blackford, Benton, Wells and Kosciusko counties in recent months.

In the 1978 lawsuit, inmates in the former jail sued over unconstitutional conditions including overcrowding. By the late 1980s, the county was building the Justice Center, which opened in 1992. But for years in the interim, the county paid to house inmates in other counties, so the current problem is a familiar one. * * *

Ultimately, the commissioners hope the judges sentence more non-violent offenders to home detention through Delaware County Community Corrections and hope that the county's work-release program can be expanded.

Harrison County. The Louisville Courier Journal reports here that:
Harrison County has become one of Southern Indiana's richest counties, thanks to $134 million in riverboat tax revenues since the Caesars casino arrived nearly seven years ago.

While the money has paid for numerous big-ticket extras like putting 10 police officers on the streets and paving 280 miles of gravel road, the Harrison County Council found this year that balancing the 2006 budget was harder than ever.

The County Council is expect to adopt next year's $21.2 million budget at 7 p.m. Monday. That would follow 11 council sessions over the last month in which members whittled about $2.8 million from departmental budget requests.

The council also pledged to try not to dip into riverboat money to pay basic operating expenses -- though that's becoming a reliable bailout.

"The truth of it is, every county I know of is going through the same thing," said Frank Cummings, Harrison's tax consultant and a former Indiana tax auditor. "The needs and the inflation are just outrunning the counties." * * *

He pointed to two new positions budgeted next year for Harrison Circuit Court -- for a court-appointed special advocate for neglected children and a judicial referee to hear juvenile cases -- as an example of how county government is growing, despite efforts to hold down spending.

Posted by Marcia Oddi on Saturday, September 10, 2005
Posted to Indiana Courts | Indiana Government

Environment - EQSC to meet next Tuesday on CAFOs

The interim legislative committee, the Environmental Quality Service Council (EQSC), is meeting Tuesday, September 13. Here is the agenda. The influential EQSC is where much of the environmental policy is made in Indiana. See IC 13-13-7. [Note that much of the EQSC responsibility is spelled out in various "uncodified" provisions, which are not in the Indiana Code.]

Tuesday's agenda includes the Director of the Department of Agriculture, the IDEM Commissioner, various confined feeding trade groups (pork industry, poultry industry, etc.), Purdue officials (talking about land application of manure, related air quality issues, etc.).

Posted by Marcia Oddi on Saturday, September 10, 2005
Posted to Environment

Ind. Courts - "Who needs DST to confuse us?!?!"

"Who needs DST (daylight savings time) to confuse us?!?!" writes a reader who sends along these quotes:

"Elkhart Superior Court 1 Judge L. Benjamin Pfaff has been suspended with pay effective at noon Monday, according to an order entered Friday by the Indiana Supreme Court." Goshen News

"The Indiana Supreme Court issued a suspension order this morning, effective Monday." Elkhart Truth

"Elkhart Superior Court 1 Judge L. Benjamin Pfaff has been suspended with pay by the Indiana Supreme Court, effective midnight Sunday." South Bend Tribune

"Friday may have been Judge L. Benjamin Pfaff's last day on the bench. The Indiana Supreme Court suspended Pfaff Friday in an order that will take effect Monday morning." Elkhart Truth

As the Supreme Court does not appear to have posted its order online, there may be no way to narrow this down. It is not posted under "Judicial Orders".

Today's South Bend Tribune story also reports:

The incident, in which only Pfaff was armed and no one was hurt, occurred in December 2003. * * *

Pfaff has continued his work on the bench since the initial incident. His judicial salary of $110,500 annually will continue during his suspension.

Also Friday, the Supreme Court ordered the temporary transfer of five Elkhart County judges and magistrates to Pfaff's court to cover his absence. Those judges will retain the authority to hear and decide cases in their own courts during the transfer period.

The court also expanded the amount of time that two senior judges can serve in Superior Court 1 from 30 days to an unlimited number.

Posted by Marcia Oddi on Saturday, September 10, 2005
Posted to Indiana Courts

Ind. Courts - Governor seeks applicants for Vigo judge position

The Terre Haute TribuneStar reports:

Indiana Gov. Mitch Daniels is accepting applications until Sept. 21 from lawyers to serve as judge for the new sixth Vigo County Superior Court, slated to start proceedings Jan. 1, said spokeswoman Jane Jankowski.

Once received, the general counsel's office for the governor will interview applicants and make a recommendation to the governor.

"We typically get in touch with the local bar association to get the work out that a vacancy is available and accept an open application process," Jankowski said.

Applicants must be a resident of Vigo County and be a member of the state bar in good standing.

The governor expects to name a judge by mid- to late November, Jankowski said. The appointed judge would then have to seek election in 2006 for that office. A judge is elected for a six-year term.

Posted by Marcia Oddi on Saturday, September 10, 2005
Posted to Indiana Courts

Environment - Several stories today

Katrina. "Flooded Toxic Waste Sites Are Potential Health Threat" is the headline to this story today in the Washington Post. Some quotes:

Three Superfund toxic waste sites in and around New Orleans were flooded by Hurricane Katrina and one remains underwater, Environmental Protection Agency officials said yesterday, adding that they will soon start investigating whether hazardous materials are leaching into the environment.
* * *

The uncertainties surrounding how the storm affected hazardous waste sites -- EPA administrator Steve Johnson said his agency had yet to determine if any of their protective shields had been degraded -- highlights the challenges facing any future cleanup. The Gulf Coast has long been a magnet for chemical plants and waste dumps, some of which shut down after becoming too contaminated in recent years.

Mercury in Indiana. The front page of the City & State section of the Indianapolis Star today has a photo of an eagle being nursed back to health, after mercury poisoning. Some quotes from the story, by Tammy Webber:
The eagle had elevated mercury levels, marking the first time in Indiana that a bird had been found with mercury poisoning.

Indiana power plants emit the fourth-greatest volume of mercury in the nation, according to a report this week from a national environmental group. The significance of the eagle's health problems, however, is up for debate. * * *

Some Indiana environmentalists say the case bolsters their arguments that the state must adopt strict mercury limits on coal-burning power plants, the greatest source of mercury emissions.

Others, however, say the case raises more questions than answers about how mercury is affecting Indiana's wildlife and, ultimately, the people who live here.

Indiana natural resources officials have no way of knowing whether the eagle's mercury levels were caused by eating Indiana fish. The eagle, a female, is an older bird and might have traveled a great distance, said Mark Pochon, property manager at the state's Hovey Lake Fish and Wildlife Area, whose officers rescued the bird after it was discovered by a farmer.

"She could have picked that up anywhere in country; they're travelers," he said. "Our hope is she picked it up over a very long time, but we will keep looking to see if there are any other (cases)."

Fertilizer from waste.The Louisville Courier Journal's James Bruggers reports today, in a lenthy story:
Meade County farmer Don Hayes was up to his armpits in a field of soybeans, talking up the fertilizer he applied last spring -- a product from Kentucky's largest sewage treatment plant.

"It's done a heck of a job," Hayes said of the Metropolitan Sewer District's Louisville Green fertilizer. "I think definitely the potential is there … and I see that as being an environmental thing. They aren't putting the stuff in the landfill anymore."

Hayes' testimonial, delivered recently by cell phone, illustrates what MSD says is a significant shift in sales for Louisville Green, which was stalled early on by customer complaints that its pellets were smelly, too large for golf courses and sometimes caught fire.

Now, with changes made to reduce odors and lessen the fire risk -- and design of a smaller "greens grade" product for golf courses -- MSD officials and their contract marketer said sales are on an upswing.

And that, officials said, saves MSD ratepayers tens of thousands of dollars every month.

Posted by Marcia Oddi on Saturday, September 10, 2005
Posted to Environment

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

In this August 26th entry, the ILB asked: "What are the BMV's plans re its void ID rules?" In Villegas et al v. Joel Silverman (8/12/05), the Court of Appeals threw out the BMV's identification rules as improperly promulgated and thus void. I wrote: "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."

Word from the BMV was that the [now void] "identification requirement would remain in place pending the eventual conclusion of the case." The deadline for filing an appeal is September 12th. As of today, Sept. 10, the docket for the case [49 A 02 - 0410 - CV - 00823] shows no activity subsequent to the Court of Appeals opinion.

However, albeit unannounced, the good news is that at the time of the Court of Appeals opinion it appears that the BMV already had taken the first requisite step to adopt new rules.

The Indiana Register, published September 1, 2005, contains a "Notice of Intent" from the BMV that it intends to add a new rule:

to establish issuance standards for operator’s licenses under Indiana Code chapter 9-24-9 and identification cards for nondrivers under Indiana Code chapter 9-24-16.
The deadline for submitting a notice to the Legislative Services Agency for publication in the September 1, 2005 Indiana Register, was August 10, 2005. This means the Notice that the BMV was initiating a formal rulemaking would have been submitted to the LSA prior to the issuance of the Court's decision that the existing rules were void, on August 12, 2005.

The Indianapolis Star has a very brief story today that the BMV is "heeding the court's mandate." However, according to the timeline above, the BMV saw the writing on the wall in advance of the Court's opinion. Here is the Star piece:

Indiana's Bureau of Motor Vehicles is heeding a court's mandate and is starting to make rules and seek public input on its strict identification requirements to obtain a driver's license or state identification card.

This comes about a month after an Indiana appeals court threw out current ID rules because BMV officials didn't go through a formal rule-making process. Judges ruled that holding a news conference and informally publishing new rules in 2002 weren't good enough.

Starting three years ago, BMV customers seeking a driver's license or state ID card had to present much more proof of identity and residence as part of a crackdown on identity fraud.

What happens next in the BMV rulemaking process? Look for the publication of the provisions of the draft rule in the Indiana Register. This could come as early as next month. However, the draft rules would have had to have been submitted to the LSA by the close of business yesterday, Sept. 9, to be included in the October 1, 2005 Indiana Register (for monthly deadlines, see here at p. 3).

Next the BMV has to schedule and conduct a public hearing(s) on the draft rule. Public notice of the hearing has to be published in a newspaper of general circulation in Marion County. All this is covered under IC 4-22-2, sections 23, 24, and 26. Section 27 provides that the comments from the hearing(s) must be considered. After complying with the preceding (and other related) requirements, the agency may adopt the rule. See section 29. Thereafter the proposal has to undergo review and approval by the attorney general, the governor, and be filed with the secretary of state. The rule takes effect 30 days thereafter.

Here is a chart I prepared some time ago to compare and contrast the rulemaking procedures for general state agencies (including the BMV), and the environmental boards. The environmental rulemaking process is very onorous and can take years -- the chart only gives the briefest outline of the process. The third column of the chart shows the emergency rulemaking process, allowing for the temporary implementation of rules while a formal rulemaking is in process. As I noted in a previous post, the BMV is not eligible for emergency rulemaking.

Meanwhile, the question still remains: What is the BMV doing in the meantime re its identification requirements? The Court of Appeals threw out its improperly developed "rules" and, although the BMV has this month initiated a formal rulemaking, this will take a number of months to conclude.

Posted by Marcia Oddi on Saturday, September 10, 2005
Posted to Indiana Government

Friday, September 09, 2005

Ind. Gov't. - Governor Daniels declares a disaster emergency by executive order

Governor Daniels today, September 9th,2005, has issued Executive Order 05-27. He has acted pursuant to IC 10-14-3, the Indiana Emergency Management and Disaster Law.

Some background:

EO 05-25, a brief document which the Governor issued September 6th, looks to have been the first draft of 05-27. It declares a "disaster emergency," a term of art under the law, due to the "the evacuees have sought refuge in Indiana" and authorizes the State Homeland Security Executive Director "to take such actions as he deems necessary and appropriate in order to draw upon state and local government and private sector resources in Indiana for the purpose of providing needed assistance to these evacuees."

EO 05-26, also issued September 6th, provides that "Motor carriers and drivers transporting gasoline, diesel fuel, and jet fuel in Indiana to address transportation needs arising from the hurricane disaster are exempt from compliance with any applicable state statute, order, or rule substantially similar to, or giving effect to, 49 CFR Parts 390-399. Any such provision of a state statute, order, or rule is suspended as it relates to such motor carriers and drivers." This is followed by a paragraphs 3, 4, and 5 clarifying and limiting the scope of the exemption. Paragraph 6 provides: "The State of Indiana will waive the enforcement of all applicable laws and regulations governing the transport of oversized tractor trailer loads for the limited purpose of allowing federal government contractors to transport mobile homes for Hurricane Katrina relief efforts for a period of ninety (90) days, subject to renewal if necessary."

The most recent Executive Order, 05-27, however, is different. It provides that all state agency heads:

shall be authorized and empowered to take such actions as they deem necessary or appropriate to support ongoing emergency management and disaster relief efforts relating to, or to cope with temporary economic disruption caused by, Katrina, including without limitation:
(i) the amendment, rescission, suspension or waiver of rules, regulations, orders, policies, procedures, guidelines, or statutory penalties consistent with any initiatives taken or authorized by federal agencies having the same or similar subject matter jurisdiction, and

(ii) the exercise of emergency rulemaking authority, where applicable, or the taking of other administrative action necessary to adopt, issue, amend, suspend or waiver rules, regulations, orders, policies, procedures, guidelines or statutory penalties for the purpose of supporting emergency management and disaster relief efforts, prodviding assistance and services to evacuees relocating to Indiana, or coping with temporary economic disruption caused by Hurrican Katrina, including fuel shortages.

Under the Indiana Constitution, Article 1, Section 26:

The operation of the laws shall never be suspended, except by the authority of the General Assembly.
In IC 10-14-3, the Indiana Emergency Management and Disaster Law, the General Assembly gave the governor certain powers in times of emergency. Foremost is the power to declare a disaster emergency, by executive order, found at IC 10-14-3-12(a). And at subsection (d)(1):
(d) In addition to the governor's other powers, the governor may do the following while the state of emergency exists:
(1) Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency if strict compliance with any of these provisions would in any way prevent, hinder, or delay necessary action in coping with the emergency.
My view. The General Assembly, in accord with Art. 1, sec. 26 of the Indiana Constitution, has via IC 10-14-12 delegated to the Governor the authority to suspend specific state laws and rules by executive order, during a disaster emergency, with limitations. The Governor, via EO 05-27, has re-delegated this legislative authority to un-named state agency heads, without any requirement that their actions comply with the minimal safeguards that are present in an executive order -- specificity, in writing, promulgated to the public (even if only by posting in a collective centralized online location, as are the Governor's executive orders), recordkeeping.

As shown by Katrina, particularly in times of disaster emergency when communication is difficult and limited, it is essential to have procedures in place beforehand so that people know where to look to see what exceptions, if any, may have been made to the laws and rules of the State.

Posted by Marcia Oddi on Friday, September 09, 2005
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending September 9, 2005

Here is the Indiana Supreme Court's transfer list for the week ending September 9, 2005. Today's one-page list includes two transfer grants, both criminal cases, and seven denials.

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, September 09, 2005
Posted to Indiana Transfer Lists

Ind. Courts - Pfaff Suspended; Waiver for Attorneys Displaced by Hurricane Katrina

The Elkhart Truth is reporting:

ELKHART -- Today is likely Judge L. Benjamin Pfaff's last day on the bench.

The Indiana Supreme Court issued a suspension order this morning, effective Monday. During the vacancy the county's other judges will handle the caseload of Superior Court 1.

Pfaff will receive pay, pending the final decision of the state's high court on whether he should be permanently removed as judge.

That move has already been recommended to the Supreme Court by the Indiana Commission on Judicial Qualifications and by three judges appointed to hear the case for the high court.

The Supreme court has issued an order titled: "In Re Emergency Bar Admissions For Lawyers Displaced Due To Hurricane Katrina." Access it here. It begins:
In light of the devastation wrought upon the states of Louisiana, Mississippi and Alabama by Hurricane Katrina, making it impossible to practice law in the areas affected, this Court finds that its rule governing admission to the Bar for lawyers to practice in the State of Indiana on a foreign license, Ind. Admission and Discipline Rule 6, should be temporarily waived as set forth below.
A contemporaneous press release reads:
The Indiana Supreme Court has issued an order designed to help attorneys displaced by Hurricane Katrina continue their law practices, Chief Justice Randall T. Shepard said today.

The order applies to attorneys in Louisiana, Mississippi and Alabama. It waives certain court rules and will make it easier for them to practice in Indiana.

“Hurricane Katrina’s devastation has visited every level of society, including the legal profession. Law offices have been demolished, records have been destroyed, and entire court systems have been forced to relocate. This order is just one small thing our Court can do to help out and we know there will be others,” said Chief Justice Shepard.

The order waives certain provisions of Indiana Admission and Discipline Rule 6.

Attorneys in good standing from the affected states will be able to receive a temporary provisional license that will be good until June 30, 2006. They must also associate with an Indiana lawyer in good standing, which is a requirement of Admission and Discipline Rule 6. The standard $800 fee for a provisional license has been waived for the affected lawyers.

“The Indiana State Bar Association and the Indianapolis Bar Association have established funds to help rebuild the legal infrastructure. Porter County Magistrate Ed Nemeth, who is an experienced disaster relief expert with the Red Cross, is heading South to help out. A prosecutor in the JAG corp was just sent to Mississippi. Lawyers across Indiana and the rest of the nation have responded to this disaster with the generosity that is typical of the profession,” said Chief Justice Shepard.

Chief Justice Shepard pointed out that the Supreme Court of Texas has offered similar privileges for 30 days to displaced lawyers and the Florida Supreme Court is extending filing deadlines. A major electronic legal research firm is offering free services for affected lawyers and the National Center for State Courts in Williamsburg, Va. is acting as national clearinghouse for recovery efforts for the legal system.

Posted by Marcia Oddi on Friday, September 09, 2005
Posted to Indiana Courts

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending September 9, 2005

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for week ending September 9, 2005. There are 54 Court of Appeals cases listed this week.

The last page of this week's list sets out the NFP decisions of the Indiana Tax Court. There are three this week. Note however that the Tax Court's NFP decisions ARE available online, here.

For earlier weekly NFP lists (going back to the week ending August 19, 2005), check "NFP Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, September 09, 2005
Posted to NFP Lists

Law - Hurricane Katrina leaves New Orleans legal system in a shambles

A front-page story in this morning's NY Times reports:

Along with the destruction of homes, neighborhoods and lives, Hurricane Katrina decimated the legal system of the New Orleans region.

More than a third of the state's lawyers have lost their offices, some for good. Most computer records will be saved. Many other records will be lost forever. Some local courthouses have been flooded, imperiling a vast universe of files, records and documents. Court proceedings from divorces to murder trials, to corporate litigation, to custody cases will be indefinitely halted and when proceedings resume lawyers will face prodigious - if not insurmountable - obstacles in finding witnesses and principals and in recovering evidence.

It is an implosion of the legal network not seen since disasters like the Chicago fire of 1871 or the San Francisco earthquake of 1906, events in times so much simpler as to be useless in making much sense of this one.

"There aren't too many catastrophes that have just wiped out entire cities," said Robert Gordon, a professor at Yale Law School who teaches legal history.

The effects on individual lawyers vary, from large firms that have already been able to find space, contact clients and resume working on cases, to individual lawyers who fear they may never be able to put their practices back together. But the storm has left even prominent lawyers wondering whether they will have anything to go back to. * * *

Some logistical issues are being addressed as the courts scramble to find new places to set up shop. The Louisiana Supreme Court is moving its operations from New Orleans to a circuit court in Baton Rouge. The United States Court of Appeals for the Fifth Circuit is moving to Houston, and electronic technology has allowed lawyers and courts to save files and documents in a way that would have been impossible in the past.

But the biggest immediate problem is with criminal courts in southern Louisiana, with thousands of detainees awaiting hearings and trials who have been thrust into a legal limbo without courts, trials, or lawyers. * * *

In addition to the logistical problems of setting up courts, finding a place to meet, and getting judges, lawyers and evidence, a major question looms about how to pay for the defense of indigent detainees. Louisiana has been in a low-grade crisis for years over the issue, and currently two-thirds of the money to defend those too poor to afford lawyers comes from court costs for traffic and parking offenses.

But with the evacuation of New Orleans and its environs, none of that money will be available.

Legal officials say that without a quick resolution of the problem the state may be forced to apportion cases to public defenders on a level that makes adequate representation impossible or to free prisoners rather than violate their constitutional right to a speedy trial.

More than a week after the storm, not all the news is bad. Some law firms, particularly larger ones with offices outside New Orleans, have reorganized with remarkable speed, saving records electronically, finding new space and housing for lawyers in Baton Rouge Lafayette, Houston, or other areas. * * *

And some say, with the perverse logic of the law, Hurricane Katrina - months from now, when people return home - will spawn an unimaginable flood of legal issues. Beth Abramson who is organizing pro bono efforts for the state bar anticipates a torrent of legal issues having to do with ruined property, insurance, environmental issues and countless other concerns.

Re the ILB entry Wednesday on this topic, titled "Impact of Katrina on New Orleans law firms," a friend wrote to say: "And they probably can't find anyone to help out, either, because of that dumb-ass Napoleonic code thing."

Posted by Marcia Oddi on Friday, September 09, 2005
Posted to General Law Related

Law - Ohio federal judge rules minors must get parental consent for abortions

The Cincinnati Enquirer reports this morning:

Abortions will be harder to get in Ohio today after a federal judge in Cincinnati on Thursday ruled that a state law - passed in 1998 but never enforced - is constitutional.

The ruling by U.S. District Court Judge Sandra S. Beckwith means:

Before a minor can have an abortion, her doctors must get a parent's written consent.

Any woman seeking an abortion must have a face-to-face consultation with her doctor and wait at least 24 hours before making a final decision.

Beckwith's ruling against Cincinnati Women's Services lifts an injunction that kept House Bill 421, signed by then Gov. George Voinovich, from becoming law.

"The court finds that H.B. 421 does not impose an undue burden on minors who seek abortions,'' Beckwith wrote.

But she added that lower courts need a clearer definition of "undue burden" from the U.S. Supreme Court.

"The need for more clarity is acute because ... legislatures will continue to legislate in this area, pro-choice advocates will continue to challenge such legislation, and the federal courts will continue to be caught in the middle," Beckwith wrote. * * *

The new statute, passed in January 1998, made two changes in state law:

Any woman seeking an abortion in Ohio must have a meeting with a physician 24 hours before the procedure, what's known as "informed consent." The doctor must personally give information about the abortion procedure, fetal development and alternatives to having an abortion, according to Petro spokesman Kim Norris. Under the previous law, doctors often gave such information in writing, by telephone or videotape, she said.

For anyone under 18 seeking an abortion, consent of one parent is required unless she can establish through a juvenile court proceeding that she is mature enough to make that decision or that an abortion is in her best interest. Under the previous law, the minor was required only to notify - rather than get the consent of - one of her parents before the abortion.

Access a copy of the 40-page ruling, Cincinnati Women's Services v. Taft, here.

See also this August 29, 2005 ILB entry referencing a Washington Post story headlined "Access to Abortion Pared at State Level".

Posted by Marcia Oddi on Friday, September 09, 2005
Posted to General Law Related

Ind. Courts - Clark County Council restores judges' money

The Louisville Courier Journal reports today:

The Clark County Council, which voted 6-0 Wednesday to withhold a $5,000 annual supplement that it has been paying to four local judges and a magistrate, reversed itself yesterday.

The council, which was in its third day of budget hearings, rescinded its earlier decision after Clark Superior Court Judge Steve Fleece asked it to reconsider. * * *

[Council President Barbara] Hollis said called Fleece "convincing" and added that he told those at yesterday morning's hearing that Indiana judges' pay ranks 47th nationally.

Hollis also said, however, that "I personally felt the net cost to the county would be less if we let them have that money" than if council members canceled the payments.

She said, for example, that if the supplements had been cut, some of the judges "might not be as diligent" about diverting inmates in appropriate cases to programs not requiring incarceration. Sending some of them to jail, she said, would cost the county more than the diversion programs do.

The last session of the Indiana legislature increased the pay for trial-court judges by $20,500 a year, from $90,000 to $110,500.

Despite the increase, Fleece said yesterday afternoon that he wanted the council to know that Indiana judges aren't paid as well as those in other states. He said they had waited more than seven years for an increase and that the amount finally approved by the General Assembly was about $10,000 less than recommended by a state advisory commission.

When he heard that the County Council had eliminated the $5,000 supplement, Fleece said, "I felt they were putting the screws to us."

He also said in an interview that he had checked with state officials who told him 73 of 92 Indiana counties supplement judges' pay in amounts ranging from $1,000 to $5,000. He said that Floyd, Scott, Washington and Jefferson counties all pay $5,000, but that Harrison County adds nothing.

In Clark County, the supplements go to Fleece and the other two superior court judges, Jerry Jacobi and Cecile Blau, and to Circuit Judge Daniel Donahue and Magistrate Ken Abbott.

Fleece said his four colleagues had not formally authorized him to speak for them but that all except Jacobi knew about his plan to address the council.

Fleece said that if the $5,000 was eliminated, he and other judges might feel less inclined to assume some duties, such as hearing traffic-ticket cases. That would mean those cases would go to town and city courts, and the fines collected would go to the municipalities instead of the county's general fund.

Posted by Marcia Oddi on Friday, September 09, 2005
Posted to Indiana Courts

Ind. Law - Time Zone Map

I reported Wednesday:

Doug Masson of Masson's Blog, who has been following the time zone issue assiduously, has prepared a very useful map showing the status of the county preferences to date. Check it out.
Well, check it out now -- the map is even better. This is a story that is understandable only with a map.

Posted by Marcia Oddi on Friday, September 09, 2005
Posted to Indiana Law

Enviroment - "EPA should create a centralized online data system "

"EPA should create a centralized online data system" is the headline to a story on GovExec.com about an 86-page, June 2005 report of the Environmental Information Consortium, funded by EPA's Office of Environmental Information. Access the report, titled "An Integrated Facility Identification System: Key to Effective Management of Environmental Information at the Environmental Protection Agency," here. Some quoters from the story, which is timely in the wake of Katrina:

An online master data system of facilities regulated by the Environmental Protection Agency is necessary to allow the public access to reliable environmental data and reduce administrative burdens, according to a report from a coalition of businesses, activists and state government officials.

A centralized, shared data system, accessible on the Internet, would give the public a better idea of the regulatory responsibilities of EPA-regulated facilities from megawatt power plants to neighborhood auto body shops, according to the report.

The system would reduce the administrative burden of reporting to several offices and help agencies manage their regulating responsibilities more efficiently. According to the report, the Office of Management and Budget has urged the EPA to develop a streamlined system for reporting facility data and making it available to the public. * * *

According to the report, the technical constraints and the structure of the EPA's information systems containing the data on regulated facilities has been "highly fragmented and incomplete." Currently the public lacks a complete picture of an EPA-regulated facility's environmental performance, the report stated, and the data provided by the EPA can inaccurately portray a company's status from time to time.

Separate records on data relating to air, water and waste are kept by state environmental agencies as well as different program offices in the EPA, leading to discrepancies in the data and the necessity for regulated facilities to report to multiple layers of state and federal regulating offices.

Other recommendations included in the report were the development of uniform procedures and definitions for operating the master system and for tracking the changes of identities of facilities' names, operations and ownership. The report also urged EPA to clarify its policies mandating that regulated facilities meet their reporting obligations by submitting their data to the master system. * * *

According to EPA spokeswoman Suzanne Ackerman, the agency has been working on system standardization for five years. "The data standards require agreement of all partners involved, which includes 50 states, the tribes and other federal agencies," Ackerman said. "Data standards are not something that EPA can decide on its own."

Suellen Keiner, the National Academy of Public Administration's vice president for programs and coordinator of the project, said that the report gives EPA a roadmap for establishing the master file and giving the public access to its data.

"It's pretty remarkable that the stakeholders from all sides of the issue were able to agree for the need of this integrated system," Keiner said. "This single master file will save the EPA a lot of money, and it will reduce the reporting burden on regulated facilities."

Posted by Marcia Oddi on Friday, September 09, 2005
Posted to Environment

Law - Justice Department says realtors did not go far enough

Yesterday the ILB quoted from a Washington Post story headlined "Realtors Back Away From Plan To Restrict Access to Listings." Today the Post reports:

The Justice Department's antitrust division yesterday sued the National Association of Realtors, alleging that the powerful trade group is using its online multiple listing service policies to restrict competition from discount brokers offering lower prices.

"The purchase of a home is one of the most significant financial decisions a family can make, and NAR's policy stifles competition to advantage some of its members at the expense of home buyers and sellers across the country," said J. Bruce McDonald, deputy assistant attorney general in the antitrust division.

Discount brokerages are undercutting the traditional 6 percent commission rate that has continued to dominate even as home prices in some markets, including the Washington area, have doubled over the last five years.

The Realtors group announced yesterday that it was changing its online sales listing policy to make listings more widely available, but Justice Department officials said the changes do not go far enough. * * *

In the lawsuit, filed in the U.S. District Court in Chicago, where the Realtors have their headquarters, the government alleged that the association -- particularly its traditional broker members -- has sought to maintain a "policy that restrains competition from brokers who use the Internet to more efficiently and cost effectively serve home sellers and buyers."

According to the federal filing, when real estate industry leaders developed their policy in 2003, they talked about ways to maintain the status quo. The working group that formulated the listings policy understood that the right to opt-out would limit competition, according to the lawsuit, which alleged that two members of the group said the opt-out right would be "abused beyond belief" as traditional brokers withheld listings from competitors. * * *

"It's great," said Peter Sealey, a professor of marketing at the University of California at Berkeley who has followed the issue. The policies "are a clear conspiracy and restraint of trade. This is long-overdue law enforcement."

Posted by Marcia Oddi on Friday, September 09, 2005
Posted to General Law Related

Law - More on Katrina insurance issues

"Insurers Are Urged to Pay Valid Claims" is the headline to this story today in the Washington Post. Some quotes:

Putting more pressure on insurers to pay damage claims from Hurricane Katrina, Mississippi's insurance commissioner has told carriers that they will be required to prove to both regulators and homeowners that damage was caused by water and not by wind if they deny a claim.

On Wednesday, Lousiana's insurance commissioner also urged a large group of insurers and reinsurers to pay all valid claims. In many cases, the key to deciding which homeowners recover will be whether wind or water caused the damage. * * *

"In some situations, there is either very little or nothing left of the insured structure, and it will be a fact issue whether the loss was caused by wind or water," Mississippi Insurance Commissioner George Dale said in a bulletin to insurers dated Wednesday. " . . . I expect and believe that, where there is any doubt, that doubt will be resolved in favor of finding coverage on behalf of the insured."

Dale's position startled many insurers and reinsurers, who are concerned they are being pressured to pay claims for damage they did not insure.

Even in Florida, with its many hurricanes, regulators "haven't ever tried to do that," said Brad Kading of the Reinsurance Association of America.

Some industry officials said they did not view Dale's action as alarming.

"I think this is just a cautionary bulletin to lay out what his expectations are," said Julie Pulliam of the Atlanta office of the American Insurance Association, a trade group. "He has been very good to work with, and we expect that to continue. We are at the very beginning of this process. There's a lot to come."

The Wall Street Journal had a very good story front page story yesterday headlined: "Paying for Flood Damage Looms as Big Challenge: Many in Gulf Coast Region Had Little or No Insurance; A New Compensation Fund?" It is reprinted here in the Pittsburgh Post-Gazette.

Access the ILB's most recent earlier entry on the insurance issues here.

Posted by Marcia Oddi on Friday, September 09, 2005
Posted to General Law Related

Environment - Several stories today [Updated]

"Ag park hearing delayed" is the headline to this Seth Slabaugh story today in the Muncie Star-Press. It begins:

MUNCIE - A public hearing on a petition to rezone 806 acres around the community of Shideler for an agricultural bio-enterprise park has been continued at the request of the petitioners.

The hearing before the city-county planning commission scheduled for next Tuesday has been postponed until Nov. 3.

"We remain committed to creating the first modern agricultural business park in Indiana," the petitioners said in a letter to the commission. "Unfortunately, at this time, a small group of people have circulated a significant amount of misinformation about our proposed project, leading many well-meaning, thoughtful citizens of our area to ask questions about it."

The petitioners intend to use the time between now and the November meeting to bring in outside experts and others to address citizens' concerns at a series of public informational meetings.

Updating yesterday's story about development of the former Cressmour County Club, the Munster (NW Indiana) Times reports today:
HOBART | Whatever the outcome of the proposed development at the site of the Cressmoor Country Club, city officials agree the majority of the acreage will remain green space. * * *

Council members Wednesday night preliminary questioned what action would be best for the city. Buzinec said officials would begin discussing the issue with other city departments, particularly the Park Board.

Plan Commission member and Councilman Carl Lindsay, R-2nd, said he doesn't want to see the city adopt additional responsibility it might not be ready to handle.

"I don't know if we want to get into a golf course business," Lindsay said.

A story in the Gary Post-Tribune, however, reports:

HOBART — An Illinois developer’s plan to build 102 townhouses and 384 condominiums on the city’s north side drew wide opposition from local homeowners.

More than 70 people packed a a public hearing Hobart Plan Commission held Thursday to express their opposition to the proposed Cressmoor Estates.

“I don’t want that coming here. I don’t see how this is good thing for the city,” said homeowner resident Martin Omelia after complaining that the project would increase traffic problems, burden city services and lower existing home values. * * *

Commission President Maria Galka said she was uncomfortable with the project’s density and thought it would require some major improvement on local streets to be viable.

[Update] "Indiana ranked fourth in the country in toxic mercury emissions from power plants in 2003." That quote is from a story by Martin DeAgostio in today's South Bend Tribune. A quote:
Days before a scheduled U.S. Senate vote on power plant pollution, a consumer and environmental group says Indiana ranked fourth in the country in toxic mercury emissions from power plants in 2003.

Michigan ranked 14th, according to Indiana Public Interest Research Group, which analyzed the latest available data from the U.S. Environmental Protection Agency.

The story provides this link to the "Made in the U.S.A," the Indiana Public Interest Research Group report.

Posted by Marcia Oddi on Friday, September 09, 2005
Posted to Environment

Law - 7th Circuit affirms CD Illinois ruling dismissing suit to stop Illinois base closure

Updating the ILB entry from Wednesday on the federal district court ruling (CD Ill.), the Chicago Tribune reports today:

SPRINGFIELD -- A federal appeals court on Thursday rejected Gov. Rod Blagojevich's attempt to stop the government from moving National Guard fighter jets to Indiana.

A three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago ruled that Blagojevich was premature in protesting a commission's recommendation that Springfield's 183rd Fighter Wing and its 15 jets move to Fort Wayne as part of a nationwide reorganization of the U.S. military.

Two justices, with one dissenting, said Blagojevich could come back to court if the change is approved by President Bush and Congress. A spokeswoman for Attorney General Lisa Madigan said the state plans to do that.

The Base Closure and Realignment Commission, which is recommending closing bases and shifting duties of military units around the nation, faced a Thursday deadline to make its recommendations to Bush. Also on Thursday, the Bush administration asked the U.S. Supreme Court to intervene and protect the federal panel's recommendations. * * *

Federal courts in Pennsylvania and Connecticut have sided with governors who argued they should have been consulted. A Missouri court rejected a similar argument there, as did a judge in Massachusetts.

In Illinois, Justices Frank Easterbrook and Diane Sykes said the federal law Blagojevich cited does not govern preliminary communications with the president. If the plan is approved by Bush and Congress, "then the decision will at that point be 'final' and reviewable before the National Guard unit is moved or changed," they wrote.

Holding up BRAC's recommendations to Bush could upset the timetable for making the base-closing decisions, they said.

Justice Ilana Diamond Rovner dissented, saying stopping the recommendations from going to Bush might be Blagojevich's last chance to object and that holding up the matter for a few days to decide the issue would not hurt the process because Bush has 15 days to send the report to Congress.

An AP story today in Newsday gives more details, including:
The report arrived at the White House only after the commission, in response to a federal judge's ruling, withdrew a recommendation that called for moving the 103rd Fighter Wing's jets from Connecticut's Bradley Air National Guard base to Massachusetts. * * *

On a day filled with a flurry of legal maneuvers by states hoping to save their bases targeted for closure, federal judges in Tennessee and Connecticut had blocked the panel from relocating units at local Air National Guard bases.

In the Tennessee case, U.S. District Judge Robert Echols temporarily barred the commission from recommending relocation of the Nashville-based 118th Airlift Wing. A federal appeals court overturned his ruling.

But the Connecticut injunction stood. U.S. District Judge Alfred V. Covello found that the governor would suffer significant hardship if the state's lawsuit over the Bradley Air National Guard Base wasn't considered immediately.

Supreme Court Justice Ruth Bader Ginsburg rejected the Bush administration's request for intervention in the Connecticut case. The administration contends the panel's recommendations are not reviewable by courts.

Ginsburg, a Clinton appointee who handles appeals from the 2nd U.S. Circuit Court of Appeals, said a federal appeals court in New York was dealing with the Connecticut case and "this court should not short-circuit the normal review process absent a showing of irreparable harm stronger than that presented here."

That prompted the commission to strike the section covering the Bradley Air National Guard base in Connecticut just hours before sending the report to the president. The commission said it would restore the recommendation if the Connecticut court's injunction "is later vacated, reversed, stayed or otherwise withdrawn."

When yesterday's 7th Circuit opinion in Blagojevich v. Rumsfeld is available, it will be posted here.

Posted by Marcia Oddi on Friday, September 09, 2005
Posted to General Law Related

Ind. Courts - Tomisue and Stephen Hilbert attend Court of Appeals arguments in Terre Haute

"Hilbert takes case to appeals judges: Ex-CEO attends hearing in Muncie, seeks jury trial related to Conseco debts" reads the headline today to the J.K. Wall story in the Indianapolis Star business section. Some quotes:

MUNCIE, Ind. -- Stephen and Tomisue Hilbert shook hands with the Indiana Court of Appeals judges and thanked them after the judges heard oral arguments in Stephen Hilbert's megamillion-dollar dispute with the company he founded, Conseco Inc.

Hilbert hopes judges Patricia Riley, Carr Darden and Paul Mathias overturn a $72 million judgment against him and grant him a jury trial in Hamilton County court.

"We thank the judges of the appeals court for taking the time to hear oral arguments," said Hilbert, dressed in a navy pinstriped suit and sporting a summer tan. "We're confident." * * *

More than 500 people filed into the lecture hall to hear the arguments, which made front-page news Thursday in the student newspaper. Backpacks outnumbered briefcases, as most attendees were students on class assignments. For educational purposes, the appeals court regularly hears cases outside Indianapolis.

The case concerns interest Conseco paid on Hilbert's behalf on more than $162 million in company-backed loans he used to buy Conseco stock. Hilbert has repaid little of the more than $240 million in principal and interest he allegedly owes.

The loan program was created in 1996 at the direction of Hilbert, who was Conseco's chairman and chief executive until 2000. Conseco, since emerging from bankruptcy reorganization in 2003, has tried to recover the full debt of only the largest 11 borrowers.

More than 150 employees participated in the program. Hilbert was the largest borrower.

In October 2004, Hamilton County Judge Judith S. Proffitt ordered Hilbert to pay the interest, $72 million at the time, without granting him a jury trial. Hilbert appealed Proffitt's ruling and won a stay until the appeals judges make a decision.

The Ball State Daily News has this report, headlined "BSU views Court of Appeals process: Audience hears oral arguments in Hilbert v. Conseco." Some quotes:
“I’m pleased so many attended this time,” Michael Spillman, instructor of telecommunications, said.

Among spectators, Hilbert, who was not required to be there, sat alongside his wife, Tomisue. “The campus is beautiful,” Tomisue Hilbert said. ”It’s another great university in Indiana.”

Hilbert said he was pleased with his counsel’s performance during the session. “We have to thank the appellate judges for listening to the oral arguments,” he said. “Hopefully, the judges will make a decision that will allow us to get our day in court.” * * *

Spillman said the last case the Indiana Court of Appeals heard at Ball State, which concentrated on privacy issues, did not have as wide of an appeal as this case. “We certainly had more people attend,” he said.

More than 300 people came to the event. Mathias, who heard Lee v. State of Indiana at Ball State in March, said he was impressed with the students and facilities at the university.

“Students came well-prepared and were properly respectful,” he said. “It’s not easy to come to grips with the facts presented in this case.”

For background, see this ILB entry from Tuesday, titled "State appeals court to hear case at Ball State."

Posted by Marcia Oddi on Friday, September 09, 2005
Posted to Indiana Courts

Thursday, September 08, 2005

Gov't. - Government Documents Increasingly Classified [Updated]

This nearly 8-minute report on NPR this morning snapped me awake real fast. It is called "Government Documents Increasingly Classified." The description doesn't do the report justice:

Government workers classified over 15 million documents last year, more than twice the number classified in 2001. The cost? About $7 billion.
According to the report, only about 4,000 in the government have authority to decide to make a document classified, secret, or top secret. But many federal employees (over 180,000 in Homeland Security alone) have the ability to withhold information by using one of dozens of newly-created designations used to block use of unclassified information. This process, according to the report, is completely discretionary and out-of-control, with no oversight. Listen to it via RealAudio.

USNews had a lengthly report called "Keeping Secrets" in Dec. of 2003. The article quotes J. William Leonard, director of the information oversight office, "[who] estimates that up to half of what the government now classifies needn't be. 'You can't have an effective secrecy process,' he cautions, 'unless you're discerning in how you use it.'"

Here is the website of the federal Information Security Oversight Office (ISOO).

[Update 9/9/05] NPR aired the second part of this story this morning, on the state secrets privilege. Access it here.

Posted by Marcia Oddi on Thursday, September 08, 2005
Posted to General Law Related

Gov't. - The era of small government is over

"The era of small government is over. Sept. 11 challenged it. Katrina killed it." So writes David Wessel here in the free Wall Street Journal today. His column concludes:

The horror of New Orleans, the photos of Americans on rooftops waving "Help Us" signs, the squalor of the Louisiana Superdome and the convention center, the failure to heed well-publicized warnings about the inadequacy of the levees -- all are provoking loud attacks on local, state and federal governments. But those aren't cries for less government. Government spending over the next five years will be bigger, perhaps significantly bigger, because of Katrina and its aftereffects.

That poses a formidable challenge to the president and Congress. Today's combination of small-government tax rates and big-government spending plans is pleasant and popular. It isn't sustainable.

Posted by Marcia Oddi on Thursday, September 08, 2005
Posted to General News

Law - More on Katrina "wind vs. flood" insurance issues

Updating this entry ("Flood insurance coverage, coastal development, and Hurricane Katrina") from September 4th, check out this story today on the front of the NY Times Business section. The reporter again is Jennifer Bayot, who wrote the Times story cited in the Sunday entry. Some quotes from the beginning of the lengthy piece:

Even with the full extent of the losses caused by Hurricane Katrina still unknown, a battle over what insurance companies will cover is taking shape around one pivotal question: How much of the damage was due to strong winds and how much due to flooding?

For insurers, the answer could mean a difference of billions of dollars in liabilities. Risk Management Solutions in Newark, Calif., has estimated that the hurricane will lead to at least $100 billion in economic losses. Of that, insurers are already expected to pay $20 billion to $35 billion, more than it has paid for any other natural disaster in the country's history.

But property owners are likely to push for a more expansive definition of insurers' liability. A meteorologist at Risk Management said yesterday that the firm was still trying to estimate the potential cost.

A majority of businesses and homeowners in the storm-ravaged area have insurance that covers wind damage. While many businesses bought flood insurance as well, relatively few homeowners did. In Orleans Parish, for example, the federal government treated flood insurance as largely optional because of the protection offered by the levees. Only two in five households bought the relatively expensive coverage.

While engineers who have dealt with hurricane damage in the past say they can determine whether the destruction was from wind or water, no one has yet been able to assess the situation in New Orleans.

At a meeting yesterday in Atlanta with more than 300 representatives of the insurance industry, the issue of wind versus water damage "was probably the pink elephant standing in the middle of the room," said J. Robert Wooley, Louisiana's insurance commissioner, who organized the meeting.

Posted by Marcia Oddi on Thursday, September 08, 2005
Posted to General Law Related

Ind. Courts - Courts, large and small

Starting with the small, the Munster (NW Indiana) Times reports today:

CEDAR LAKE | The town's councilmen have talked themselves out of the notion of establishing a town court.

In a work session Tuesday, Council President Greg Wornhoff, R-3rd, said the time to make a decision is fast approaching.

"We have to have an ordinance by the end of the year for an election for judge next year. Otherwise, you wait four years," he said.

Although John Shutz of the Cedar Lake Chamber of Commerce said the Chamber had put its support behind the town court idea as a way to raise revenue and ease the way for the police department, no one spoke in favor of it on the council.

"I'm really against us doing a town court," Councilman Dominick Kortokrax, R-7th, said. "I don't think our town can afford it."

Police Chief Roger Patz said, "It would be nice to have a local judge to go to for a search warrant." But, he said it could create manpower issues for the Police Department.

Town Attorney David Austgen had provided information packets on the subject last month.

Kortokrax said although the Lowell Town Court was initially successful, the revenue generated has fallen off.

In Vigo County, as the Terre Haute Tribune-Star story is headlined, "Proposals for security improvement measure range from $123,000 to $288,000." Some quotes:
Five proposals are under review for a possible video arraignment system that would improve security at the Vigo County Courthouse.

The proposals, opened Tuesday, were advertised for professional services to provide video arraignment technologies for six county courts, plus a court at Terre Haute City Hall. Vigo County's new sixth superior court is slated to start proceedings in January.

The proposals also include a cost breakdown. Proposals range from about $123,500 to more than $288,000.

"All of the judges and law enforcement have discussed this and it is an item we are looking at," said Judge David Bolk, chief of Vigo County judges.

"There has been no decision on whether or not to do this or how to fund it," Bolk said. "This is an information-gathering step. I think there needs to be a consensus that it is a good use of taxpayers' money." * * *

Tony Miller, director of information services for the county, said the courts and Sheriff Jon Marvel requested the proposals.

"We believe that because of the fact that the courthouse is undergoing interior renovations, now would be the time to get any additional cabling or wiring in place," Miller said. "Even if we don't implement the system now, it would be better to get the back end wiring going right away."

Miller said 16 other Indiana counties are using video arraignment "in one form or another. We are one of the largest counties that don't have something of this nature. This is a manpower issue and safety issue," Miller said.

Posted by Marcia Oddi on Thursday, September 08, 2005
Posted to Indiana Courts

Ind. Law - "new law stupid" is assessment of many cold pill purchsers

Nancy Sulok, South Bend Tribune columnist, has a piece today headlined "New law makes buying cold capsules a hassle: State aims to combat illegal meth production." Some quotes:

A law that took effect July 1 in Indiana and other states changed some over-the-counter drugs into locked-behind-the-counter drugs.

I don't like it, and I suspect some pharmacists don't, either.

The law affects cold remedies and other medicines that contain ephedrine or pseudoephedrine. The chemicals are used by illegal drug traffickers to manufacture methamphetamine.

In an attempt to combat the practice, the Indiana General Assembly passed a law this year to restrict the sale of products such as Sudafed; Tylenol Cold; Advil Cold; Robitussin Cold Sinus and Congestion; Benadryl Allergy and Cold Tablets; and similar products. Their generic equivalents also are included. * * *

Before July 1, it was relatively easy to run to the store and pick up a box of cold capsules. Now it isn't.

In fact, it can be impossible at times.

I came down with a cold over the Labor Day weekend. I was sick from the shoulders up, with a sore throat, stuffy head, drippy nose and occasional sneezing. I also had a fever.

I tried toughing it out, but by Monday evening my condition was growing worse. None of the medicines I had at home treated all of my symptoms.

I went to a CVS Pharmacy near my home, only to find the pharmacy closed and locked. The store was open, but the pharmacy was closed. It had been open from 10 a.m. to 6 p.m. that day, but was closed when I arrived at about 6:30.

The same hours were observed by the Meijer pharmacy near my home. What's a sick person to do? * * *

Tammy Traxler, a staff pharmacist at the Meijer on Bremen Highway in Mishawaka, said it's a hassle for pharmacists, too.

Not only do they have to deal with the time-consuming paperwork, but they also had to find space behind the counter to store the medicines.

As a result, she said, Meijer has significantly reduced the variety of cold remedies it offers.

When the medicines were on the open shelves, she said, Meijer had about 125 different cold products for consumers to consider. Now it has only about 30.

In an effort to help customers make decisions, Traxler said, Meijer has a display outside its pharmacy window that shows pictures of the available product boxes, along with their ingredients and other information. But they can be purchased only during regular pharmacy hours: 9 a.m. to 9 p.m. weekdays; 9 a.m. to 7 p.m. Saturdays; and 10 a.m. to 6 p.m. Sundays and holidays.

The Walgreen Drug Stores have a variation of that sales method, according to spokeswoman Tiffany Bruce. She said the shelf where the medicines once were displayed has cards that describe the available cold remedies. Customers can take a card and hand it to the pharmacist for the desired product, Bruce said.

Although Traxler couldn't say for sure, she suspected that sales are way down for cold remedies. The limited pharmacy hours are one factor, she said, but a bigger factor is that many consumers just don't want to bother with asking for the pills and filling out the paperwork.

Mike DeAngelis, spokesman for the CVS chain, said it is too soon to tell whether the new procedures are affecting sales.

He said he has not heard many complaints from customers, but Traxler said she has heard a lot. They think the new law is stupid, she said, and they don't understand why it was done.

The new law relating the methamphetamines, SEA 444, took effect July 1. From the digest:
Prohibits a retailer from selling a drug containing ephedrine or pseudoephedrine: (1) to a person less than 18 years of age; and (2) in a quantity greater than three grams in one transaction. Requires a retailer to store drugs containing ephedrine or pseudoephedrine: (1) behind a counter or in a locked case that makes the drugs unavailable to customers without the assistance of a store employee; or (2) directly in front of the pharmacy counter, in the line of sight of an employee behind the pharmacy counter, and in an area under constant video monitoring, if the retail establishment in which the drugs are sold is a pharmacy or contains a pharmacy that is open for business. Requires a retailer to record certain information concerning a person who purchases a drug containing ephedrine or pseudoephedrine by requiring the purchaser to present identification and record certain information in a log that may be made available to law enforcement officers in accordance with state or federal law. Grants a retailer immunity from civil liability for the good faith disclosure of this information. Prohibits a person from purchasing more than three grams of ephedrine or pseudoephedrine in one week. Requires a retail distributer, wholesaler, or manufacturer to report suspicious orders to the state police, and requires a retailer to report unusual thefts to the state police. Provides that a retailer who has suffered three unusual thefts in a 30 day period must store all drugs containing ephedrine or pseudoephedrine behind the counter or in a locked case for 180 days. Makes knowing or intentional violation of the ephedrine or pseudoephedrine sale or purchase restrictions a Class C misdemeanor, and enhances the penalty to a Class A misdemeanor for second or subsequent violation.

Posted by Marcia Oddi on Thursday, September 08, 2005
Posted to Indiana Law

Environment - A number of stories today

Wetlands. "Undoing the damage: Wolf Lake should restore wetlands, remove homes from flood-plain designation" is the headline to this story today in the Munster (NW Indiana) Times. Steve Zabrioski writes:

HAMMOND | Two years of work is intended to reverse a century of environmental damage to Wolf Lake and ease costly flood insurance requirements for Robertsdale homeowners.

The U.S. Army Corps of Engineers and the city formally agreed on a project to restore natural fish and wetland habitats at the 900-acre lake, and normalize water levels to remove some 1,800 homes from the flood-plain at a lakeside ceremony on Wednesday afternoon. * * *

Burke Engineering of Indianapolis -- a specialist in changing the flood designation of communities -- was successful in getting 96 homes along New York Avenue off required flood insurance in January and is working with the Federal Emergency Management Agency to do the same around Wolf Lake, McDermott said.

Work on the project began in 1998, with an assessment of Wolf Lake's degraded ecosystem. A lengthy public comment period followed, during which concerns from the many anglers, boaters, birders and surfers who enjoy the lake were addressed by the Army Corps, which modified parts of its plan in response.

The restoration project complements the city's plan to add 15 acres of new wetlands and prairie to the southern end of Wolf Lake to compensate for filling in 11 acres of nearby George Lake and adjacent wetlands to build the Lost Marsh Golf Course.

Green space. "City agrees to leave majority of Cressmoor development as green space: Officials now must decide whether to take ownership of the 60-plus acres," is the headline to this Munster (NW Indiana) Times story. Some quotes:
HOBART | Whatever the outcome of the proposed development at the site of the Cressmoor Country Club, city officials agree the majority of the acreage will remain green space.

The city's Board of Public Works and Safety, which is chaired by Mayor Linda Buzinec, and the City Council agreed Wednesday to preserving two-thirds of the 100-acre development as green space.

Under the proposal, a little more than 480 units would be built on the property, including condominiums and townhouses, said developer Arnis Putrenieks of Trinity Acquisition Corp.

Putrenieks offered to immediately donate the green space property to the city, but officials Wednesday weren't ready to take ownership.

New Orleans contamination. The Louisville Courier Journal has a story by James Bruggers headlined "New Orleans cleanup: Officials foresee long, risky job in 'toxic gumbo'". Some quotes:
Cleaning up New Orleans after the floodwater recedes likely will involve massive demolition, decontamination and a race to remove sediment before it hardens into something resembling concrete. * * *

Whole neighborhoods and many buildings will have to be demolished, said Chris Ward, a co-owner of Louisville-based Chase Environmental Group, a consulting firm that specializes in environmental remediation.

"I'd say the homes, if they are wood-framed, are probably going to be history," he said, adding that metal-framed buildings might be gutted and rebuilt.

"Anything that cannot be sanitized has to be removed, particularly if it has been contaminated with sewage," said Connie Mendel, environmental health coordinator for the Louisville Metro Health Department. She is on standby to go to New Orleans to assist in the cleanup. * * *

Local and national experts said the work will be similar to what's been done in Louisville and other cities that have suffered major flooding -- but it will be on a larger scale and with unprecedented twists. * * *

Experts also noted that the polluted water could wreak havoc with the ecology of Lake Pontchartrain and the Gulf of Mexico.

Bud Schardein, executive director of the Metropolitan Sewer District, which manages Louisville's flood-control system, said this city's experience might portend areas of concern for New Orleans.

Louisville's 1937 flood, which covered 150 square miles of Jefferson County -- in some areas up to 50 feet deep -- forced the evacuation of 230,000 people, according to the Louisville Encyclopedia.

Schardein said many of the city's sewer lines filled with sediment and had to be cleaned out; some collapsed and were rebuilt.

Drinking-water lines had to be purged and cleaned, and that will be a necessity in New Orleans, Schardein said, noting that sediment must be removed quickly or it will dry and become a concrete-like mat. "You can't move it" if workers wait too long, he said.

NEPA. The Ricmond, VA Times Dispatch reports today:
A three-judge panel of the Richmond-based federal appeals court ruled yesterday that a U.S. District Court in North Carolina was correct in ruling that the Navy had conducted a deficient environmental-impact study for a new jet fighter training facility.

But it found also that the lower court's order preventing the Navy from going ahead with any steps in planning or building the facility -- near the Pocosin Lakes National Wildlife Refuge, the winter home for nearly 100,000 migrating waterfowl -- went too far.

The panel of the 4th U.S. Circuit Court of Appeals affirmed that the Navy failed to comply with the National Environmental Policy Act.

It sent the case back to the trial judge with instructions to remake the order so it allows some project activity while the Navy complies with the law's requirement that it take a "hard look" at the environmental impacts of the project.

The Navy is seeking to build an airfield where pilots may practice carrier landings and takeoffs with the new "Super Hornet" fighter aircraft the Navy is acquiring. The field would simulate the deck of an aircraft carrier. The site is in Washington and Beaufort counties in North Carolina.

The Navy plans to acquire about 30,000 acres of land for the field. The core area will use about 2,000 acres and the rest will serve as buffer area.

Both counties, the National Audubon Society, the North Carolina Wildlife Federation and Defenders of Wildlife filed separate lawsuits against the Navy, alleging the Navy violated the law because it did not adequately assess the environmental impacts on the site. The cases were later consolidated into one.

The plaintiffs claim the Super Hornet airplanes might flush the birds into flight, strike them in the air, reduce their feeding and resting times, alter their behavior, interfere with their migration and decrease their populations.

The opinion was written by Judge J. Harvie Wilkinson III, who was joined by Judge Karen J. Williams and Judge William B. Traxler Jr.

Access the 4th Circuit opinion here.

Appointments. U.S. Newswire reports here that: "Philip R. Sharp, a long-time member of Congress and a prominent authority on energy and environmental policy, has been appointed president of Resources for the Future, the Washington think tank announced today."

Posted by Marcia Oddi on Thursday, September 08, 2005
Posted to Environment

Law - "Realtors Back Away From Plan To Restrict Access to Listings"

"Realtors Back Away From Plan To Restrict Access to Listings" is the headline to an interesting story today in the Washington Post. Some quotes:

In response to antitrust concerns, the National Association of Realtors plans to announce today that it will drop a plan to permit real estate agents to restrict access to home sales listings on the Internet.

Instead it will set rules ensuring that all real estate agents have access to the same information, the trade group said in a statement to be released today. Association officials had previously insisted on maintaining policies that allowed agents to control listings. They said they changed their minds because of a Justice Department investigation into whether the association's policy was stifling competition. * * *

The controversy has arisen as several new companies, or new units of established companies, have sought to break into the real estate market with cut-rate commissions, often by using the Internet to speed up transactions. Some of the new companies have lobbied federal antitrust officials for protection.

Real estate agents have been criticized for seeking to maintain their traditional 6 percent commissions as home prices soar. Home prices in the Washington region have roughly doubled over five years, so commissions have, too, for roughly the same amount of work.

State real estate groups, meanwhile, have pushed ahead with rules that require agents to provide a full set of services to consumers. Antitrust officials at the Justice Department and Federal Trade Commission have said those rules would hurt consumers because they would make it harder for the new kinds of business models, such as Internet-based firms, to offer services at lower prices.

The state groups have said they are the ones protecting consumers by limiting the growth of companies that offer poor service.

Posted by Marcia Oddi on Thursday, September 08, 2005
Posted to General Law Related

Law - California Governor to Veto Bill Authorizing Same-Sex Marriage

The Washington Post has this story today. Some quotes:

LOS ANGELES, Sept. 7 -- Gov. Arnold Schwarzenegger (R) announced Wednesday night that he will veto landmark legislation that would have allowed same-sex couples to marry.

In a statement, Schwarzenegger's press secretary, Margita Thompson, said the governor opposes the legislation, passed Tuesday night by the California Assembly and last week by the state Senate, because he thinks the matter should be decided by California's courts or its voters. * * *

Schwarzenegger's move does not end California's fight over the bedroom -- it simply moves it back to the courthouse and potentially the ballot box.

Early last year, San Francisco officials declared that Proposition 22 violated the state's constitution and unilaterally issued marriage licenses to more than 4,000 gay couples. The state Supreme Court nullified those unions, citing the law. In March, a San Francisco judge hearing lawsuits from activists and city officials declared the law unconstitutional, setting the scene for a battle that will return to the state's highest court.

In addition, conservative activists are planning a proposition for a June 2006 election that would ban gay marriage. Another measure would severely curtail domestic partnership benefits.

A Field Poll released last week showed Californians to be split on the issue, with 46 percent opposing and 46 percent approving of same-sex marriages.

For background, see this ILB entry from yesterday and this one from Sept. 2.

Posted by Marcia Oddi on Thursday, September 08, 2005
Posted to General Law Related

Ind. Courts - Jon Krahulik obituary

The Indianapolis Star today contains an obituary for former Justice Krahulik. Some quotes:

Jon Krahulik, 60, Indianapolis, a former Indiana Supreme Court justice known for his mental and physical fortitude, died Tuesday after a long struggle with cancer.

Mr. Krahulik was appointed to the court by Gov. Evan Bayh in 1990. The justice resigned in 1993 to become president and chief operating officer at Chemed Corp., Cincinnati. He later returned to Indianapolis to practice law with his sons. * * *

Mr. Krahulik received his law degree from Indiana University School of Law-Indianapolis in 1969. He worked from 1969 to 1971 at the Baker and Daniels law firm and from 1971 to 1990 at Bingham Summers Welsh & Spilman, where he was managing partner.

Mr. Krahulik and I were in the same graduating class at Indiana School of Law-Indianapolis and had many classes together. It was mainly a night school at the time, housed in the once-grand but by then leaky and drafty old Mannechor Building downtown -- now the site of the Federal Building. We were the last class to graduate from that location, the next year the law school moved to the "new" New York Street location, which now houses Herron.

Posted by Marcia Oddi on Thursday, September 08, 2005
Posted to Indiana Courts

Ind. Gov't. - Privatizing the New Castle Correctional Facility

The Fort Wayne Journal Gazette has an editorial today that begins:

Privatizing the New Castle Correctional Facility is off to an ignominious start. Indiana selected a company that overcharged Florida several million dollars in running two prisons. The fact the contractor made contributions to Gov. Mitch Daniels and the Indiana GOP, and not to Democrats, only makes this deal look worse than it should.

The Indiana Department of Correction is expected to sign a 10-year renewable agreement by Friday with the GEO Group Inc., a Boca Raton, Fla.-based prison management firm. The Aug. 30 announcement that GEO had been selected came a little more than month after a Florida Department of Management Services audit charged that GEO and Corrections Corp. of America overcharged Florida nearly $13 million. * * *

Since this is Indiana’s first foray into private prisons, GEO’s troubles in Florida should be a primer into what happens when no one is watching – or cares to look. Although GEO’s past errors aren’t necessarily an indication of what the future will bring, Correction Commissioner J. David Donahue and Daniels should make sure strict measures are in place to ensure the state won’t be overcharged and that services are kept up to standard. Saving money shouldn’t trump accountability.

The contract also raises another issue. The state rejected a proposal from New Castle employees to run the prison. This contrasts to candidate Daniels’ stance that Indiana should buy from Indiana. Daniels told voters in 2004 that “nobody’s minding the store” when it comes to procurement and the state was doling out too much taxpayer money with out-of-state companies.

Unfortunately, outside scrutinizing of the New Castle-employee proposal or any other bid submitted isn’t possible yet because the Correction Department won’t release details about any of the bids until the contract is signed.

Posted by Marcia Oddi on Thursday, September 08, 2005
Posted to Indiana Government

Ind. Decisions - SD Indiana Judge rules in favor of Ten Commandments monument [Updated]

Maureen Hayden of the Evansville Courier& Press reports this mornng:

A federal judge has ruled the Ten Commandments monument on the Gibson County courthouse lawn in Princeton, Ind., meets the new constitutional test established by the U.S. Supreme Court in its landmark rulings this summer on the public display of the biblical edicts. The order, issued Wednesday by U.S. District Court Judge Richard L. Young in Evansville, reverses his earlier decision in January ordering the monument's removal.

Gibson County attorney Jerry Stilwell, who defended the county in the lawsuit, said Young's ruling was expected in light of the Supreme Court decisions earlier this summer that allowed a Ten Commandments monument to remain on the grounds of the Texas State Capitol. Young cites that decision in his ruling, saying the Gibson County monument is similar to the monument in the Texas case, in both history and context. The Supreme Court found that the Texas monument was a "passive" acknowledgement of the role of religion in the nation's history, and therefore did not violate the First Amendment's "establishment clause" barring the endorsement of religion by government.

The Princeton Daily Clarion also has a report this morning. Some quotes:
EVANSVILLE-Gibson County's Ten Commandment monument on the northeast corner of the courthouse in Princeton will apparently remain where it has stood since 1956, after a judgment was handed down Wednesday by a Federal District Court judge in Evansville.

Judge Richard L. Young, presiding in the U.S. District Court Southern District of Indiana, ruled the Gibson County display is "not in violation of the First Amendment, Establishment Clause," and granted summary judgment to the county in the case of Russelburg v. Gibson County.

The Seventh U.S. Circuit Court of Appeals had vacated a previous judgment made in January by Judge Young ordering the removal of the decalogue and had ordered the case back for consideration to the District Court. * * *

In June the Supreme Court ruled 5-4 in the case of Van Orden v. Perry, that a 6-foot monument of the Ten Commandments outside the Texas state capitol does not violate constitutional bans on establishing a state religion. That case closely paralleled the Gibson County case because in both instances the monuments were donated by local Eagles lodges.

The court's ruling in the Texas case was cited in June as good news for Gibson County in its own case by County Attorney Jerry Stilwell, who said Wednesday that he was not surprised by the ruling to allow the display to remain in Princeton. * * *

In his ruling granting summary judgment for the county, Young cited recent and past Supreme Court decisions on similar cases - including the Van Orden case - and wrote that "the (Supreme) Court reasoned that it would be disingenuous to ignore the fact that religion generally and the Ten Commandments specifically have had a great deal of historical influence on society."

Van Orden v. Perry is available here, via Findlaw.com. Check back later for Judge Young's decision.

[Updated] Here is the opinion in the case of Russelburg v. Gibson County (9/7/05).

Posted by Marcia Oddi on Thursday, September 08, 2005
Posted to Ind Fed D.Ct. Decisions

Wednesday, September 07, 2005

Law - Where did the stripes come from?

Sandra Day O'Connor today provided the answer to the oft-asked question: "Where did the stripes on Chief Justice Rehnquist's robe come from?" As reported in a Detroit Free Press story on remarks made at the funeral service Wednesday:

"Occasionally he surprised us. One day as we gathered in our conference room to shake hands before going in the courtroom, he appeared with four gold stripes on the sleeve of his robe. We thought it must be a joke. 'Where did those come from?' we asked. `Oh, I had the seamstress sew on stripes for every five years I have been on the court,' he said, `just like the Lord Chief Justice in Gilbert and Sullivan.' And the stripes stayed. He could have added more but never did." - O'Connor.
Thanks to How Appealing for the pointer.

Posted by Marcia Oddi on Wednesday, September 07, 2005
Posted to General Law Related

Environment - Sabotage suspected at dairy CAFO

Seth Slabaugh of the Muncie Star-Press reports in Thursday's paper:

WINCHESTER - Police are going door to door in a rural neighborhood surrounding a Dutch dairy CAFO (concentrated animal feeding operation) to investigate monitoring-well tampering.

Someone cut padlocks, opened lids and contaminated two of the four ground-water monitoring wells at the controversial Union-Go Dairy, the owner and his consultants suspect.

Harmful levels of E. coli bacteria and nitrate were detected in the sabotaged wells.

"Detectives are working on it," said Randolph County Sheriff Jay Harris. "They are going to canvass the area to see if anyone saw anything."

Dutch immigrant Tony Goltstein, owner of the controversial, 1,650-cow dairy, which is scheduled to open soon, referred The Star Press to his consultants.

It could cost Goltstein thousands of dollars to decontaminate the two wells or tens of thousands of dollars if he is required to drill two new wells, said consultant Julie French of Gordon & Associates in Bentonville.

"We will let IDEM determine if the wells need to be sanitized or if we need to dig new wells," French said. "The levels we found were way above recreational and drinking water standards."

Potential sources of the contamination include manure and fertilizer.

The Indiana Department of Environmental Management issued a permit to Union-Go last September over the objections of hundreds of opponents, who are appealing the issuance of the permit.

Environmentally Concerned Citizens of Randolph County claims the site Goltstein chose is inappropriate for the dairy, including a 7.2-acre, 20-million-gallon manure lagoon, because of seasonal high water tables, shallow residential water wells nearby and proximity to Sparrow Creek.

The opponents also are concerned about stench and gas from the lagoon.

There are no cows at the dairy farm yet. Its opening has been delayed by the weather.

"From all of the public hearings, everyone knew there would be monitoring wells," French said. "It was public knowledge. It was no big secret."

ECCRC denied responsibility for the incident, which was reported to police on Aug. 25.

Thanks go to E. Thomas Kemp of Kemplog, who linked to the preliminary version of this story early this evening.

Posted by Marcia Oddi on Wednesday, September 07, 2005
Posted to Environment

Ind. Law - Indiana Bar Associations' disaster relief efforts

The two largest bar associations in the state, the Indiana State and Indianapolis bar associations, have jointly established special funds to assist members of the legal communities in Mississippi and Louisiana who lost their homes, offices and law practices due to Hurrican Katrina. See the announcement here. A quote:

Organized bar associations throughout the country as well as individual lawyers are struggling with the question of how best to assist the victims of Hurricane Katrina. The two largest bar associations in the state, the Indiana State and Indianapolis bar associations, have jointly established special funds to assist members of the legal communities in Mississippi and Louisiana who lost their homes, offices and law practices in the storm. Estimates are that nearly 1/3 of the practicing bar in the area was affected.

Posted by Marcia Oddi on Wednesday, September 07, 2005
Posted to Indiana Law

Ind. Law - Time zone map

Doug Masson of Masson's Blog, who has been following the time zone issue assiduously, has prepared a very useful map showing the status of the county preferences to date. Check it out.

Posted by Marcia Oddi on Wednesday, September 07, 2005
Posted to Indiana Law

Law - More Supreme Court nomination resources

For the confirmation geeks amongst you (such as those who listened to all the past Senate Committee confirmation hearings on C-Span 3 last weekend, some of them twice), How Appealing has just posted a link to a tremendous resource -- the Library of Congress has made available:

"floor debates (Senate debate while in Executive Session), votes, hearing transcripts and Senate statements (statements made about the nominees outside of Executive Session) of the current Supreme Court Justices. Retrospective files and new nominee files will be added in the upcoming months."
I have been trying to track down these documents online for some time, and could only come up with a few of them. This is great!

Posted by Marcia Oddi on Wednesday, September 07, 2005
Posted to General Law Related

Ind. Courts - Former Indiana justice Krahulik dies

The Indiana Supreme Court has issued this release:

STATEMENTS OF INDIANA SUPREME COURT CHIEF JUSTICE RANDALL T. SHEPARD AND JUSTICE FRANK SULLIVAN, JR., ON THE DEATH OF FORMER JUSTICE JON D. KRAHULIK

“Jon Krahulik was a genuine, warm and caring person. He was a wonderful colleague whose presence was greatly enjoyed during his all too brief service our bench. We valued his sense of humor and his commitment to justice. We were very pleased to hear that his health had improved for a period of time, but very sad to learn he was taken from us so soon,” said Chief Justice Randall T. Shepard.

Chief Justice Shepard served with Justice Krahulik’s during his entire time on the bench.
_______________________________________________________

“I am deeply saddened to learn of the death of former Indiana Supreme Court Justice Jon D. Krahulik and express my deep sympathy to his wonderful family.

“During his tenure on the Supreme Court, Jon D. Krahulik made an enormous contribution to Indiana law. In opinion after opinion, both criminal and civil, he helped give new law that resolved unanswered questions and updated old rules to the needs of the 1990’s, including providing the leadership that created the new Indiana Rules of Evidence. Jon Krahulik made a significant, lasting, positive mark on Indiana law.

“Beyond his contributions as a justice, Jon Krahulik was legendary in his commitment to the members of his family and to the many young lawyers who trained under him. I know they share deeply in this loss,” said Justice Frank Sullivan.

Justice Sullivan succeeded Krahulik on Indiana’s highest court on Novermber 1, 1993. Both were appointed by former Governor (now U.S. Senator) Evan Bayh.

Posted by Marcia Oddi on Wednesday, September 07, 2005
Posted to Indiana Courts

Law - Impact of Katrina on New Orleans law firms

The National Law Jounral has an interesting story today subtitled "New Orleans' 7,500 lawyers struggle to salvage lives, businesses." Some quotes:

Much of the New Orleans legal community is in shambles following the devastation from Hurricane Katrina.

Attorneys and staffers at some law firms were still unaccounted for last week, and office buildings and courthouses -- and the documents inside -- remained soaking under water. * * *

The New Orleans area was home to about 7,500 lawyers, Bodin said, which equals about one-third of the state's attorneys. "Most of the lawyers lost their homes, jobs and maybe their practices," he said.

As most phone and electronic communications remained useless after the barriers protecting the low-lying city failed, law firm leaders and court personnel were struggling to find offices and even housing for their workers.

"We're totally unaware of when we might have access to the building," said Charles Landry, managing partner of Jones, Walker, Waechter, Poitevent, Carrere & Denegre's Baton Rouge office. The New Orleans-based firm had 300 people, including 165 attorneys, working at its location on St. Charles Avenue.

For a personal account of the toll of Katrina, read the entries of long-time New Orleans blogger, Ernie the Attorney.

Posted by Marcia Oddi on Wednesday, September 07, 2005
Posted to General Law Related

Environment - Floodwaters now "laced with raw sewage, bacteria, heavy metals, pesticides and toxic chemicals"

Updatig the ILB entry from Monday on the environmental impact of Hurrican Katrina are a number of stories today.

"Katrina Environmental Issues 'Almost Unimaginable': BATON ROUGE - Hurricane Katrina left behind a landscape of oil spills, leaking gas lines, damaged sewage plants and tainted water, Louisiana's top environment official said on Tuesday." is the headline to this Reuters story.

"Water Returned to Lake Contains Toxic Material"
is the headline to this story in the NY Times. Some quotes:

BATON ROUGE, La., Sept. 6 - While the human and economic toll of Hurricane Katrina continued to mount, New Orleans was beginning to pump back into Lake Pontchartrain the floodwaters that had inundated the city.

But this is not the same water that flooded the city. What started flowing back into the lake on Monday and continued spilling into it Tuesday is laced with raw sewage, bacteria, heavy metals, pesticides and toxic chemicals, Louisiana officials said on Tuesday.

The Washington Post reports:
The dank and putrid floodwaters choking this once-gracious city are so poisoned with gasoline, industrial chemicals, feces and other contaminants that even casual contact is hazardous, and safe drinking water may not be available for the entire population for years to come, state and federal officials warned Tuesday.

Posted by Marcia Oddi on Wednesday, September 07, 2005
Posted to Environment

Ind. Decisions - Still more on Fort Wayne Airport decision

On August 2, 2005 the Indiana Supreme Court posted its decision in SMDfund, Inc., et al v. Fort Wayne-Allen Co. Airport Authority, et al. (See ILB entries from: 8/2/05, 8/3/05, 8/4/05, and 8/5/05.)

According to the ILB report at the time:

Today's 9-page ruling, by Justice Boehm, with the other four justices concurring, begins with the somewhat disappointing:
The plaintiffs challenge the constitutionality of the statute creating the Fort Wayne-Allen County Airport Authority. The Authority was created in 1985 pursuant to a statute the plaintiffs now contend violates the prohibition in the Indiana Constitution against special legislation. We hold that laches bars this claim.
At page 8 Boehm writes:
In short, laches bars the plaintiffs’ claim. Because we hold that the plaintiffs’ claim is barred by laches, we need not address the statute of limitations issue which was the basis of the trial court’s ruling reaching the same result. We affirm the trial court’s entry of summary judg-ment for the defendants.
Yesterday the Fort Wayne Journal Gazette published an opinion piece from Joe Tocci, "a Fort Wayne resident and chairman of the SMDfund, which represents Smith Field supporters." Some quotes:
Like any other legal complaint, courts can’t proceed on a constitutional matter except when brought in a specific case. SMDfund v. Fort Wayne-Allen County Airport Authority, et al., was such a case. At the lawsuit’s filing, the 2003 Supreme Court’s Kimsey ruling was a watershed that could halt the General Assembly’s addiction to making special laws beneficial to local elites and otherwise confine them to making uniform policy beneficial to all of us. * * *

Each time an Indiana court excused bracketed populations, its decision bolstered legal precedent and emboldened Indiana’s legislators to do it again until it is now routine. The remarkable thing is that for more than 20 years, Indiana courts have found excuses for allowing this transparent device to disguise the constitutional violation.

The Kimsey ruling suddenly changed everything. When the Indiana Supreme Court defined explicitly, for the first time, the only legal exception to our Constitution’s prohibition, the justices seemed to be signaling they’d finally had enough. Thirty-one days after Kimsey, SMDfund asked the court to try the high court’s new criteria against the airport authority’s circumstance.

The airport authority’s claim that we waited 17 years is nonsense. The high court’s reliance on it is stunning. When the Supreme Court upheld dismissal of SMDfund, the justices rescinded the Kimsey notice, and by doing so unanimously, the justices may have emboldened the legislature to resume the log rolling with the highest impunity since 1850.

Posted by Marcia Oddi on Wednesday, September 07, 2005
Posted to Ind. Sup.Ct. Decisions

Law - Suit to stop Illinois base closure dismissed [Updated]

Federal Judge Jeanne Scott of the CD Illinois yesterday dismissed "Gov. Rod Blagojevich's lawsuit aimed at stopping the military from moving fighter jets from Illinois to Indiana." Per an AP story in the Chicago Sun-Times:

Judge Jeanne Scott relied on a 1994 U.S. Supreme Court decision* in ruling that Illinois had suffered no economic loss because a federal commission's recommendation to move 15 F-16s to a base in Fort Wayne, Ind., is not final. * * *

Scott pointed out that Bush must approve or reject the recommendations, and if approved, Congress must weigh in, so the recommendations do not decide the issue of the Springfield jets.

Blagojevich would have standing to file a lawsuit only if he could show an injury that is not "conjectural or hypothetical," Scott wrote in her 10-page ruling.

"The governor's allegations fail to demonstrate that the secretary (of Defense) or the commission have injured him, or will injure him, by making these tentative recommendations," Scott wrote.

She dismissed court arguments by the Illinois attorney general's office that the governor's legal rights were abridged when federal officials excluded him from deciding what will happen to the fighter unit.

Judge Scott's opinion is not yet available online. Check back later.

[Update] Judge Scott's opinion, dated 9/6/05, is styled: Rod Blagojevich, Governor of the State of Illinois v. Donald Rumsfeld, Secretary of Defense of the United States of America, et al. Access it here.
______
*The 1994 Supreme Court decision referenced is Dalton v. Specter, 511 US 462. Interestingly, a recent Congressional Research Service report cites Dalton on page 12:

In Dalton, the Supreme Court held that the issuances of the Secretary’s report and the Commission’s report were not judicially reviewable actions under the APA because they were not “final agency action[s].”12 The Court explained that “‘[t]he core question’ for determining finality [of agency action under the APA is] ‘whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.’”13 Because the Base Closure Act established a process under which the President takes the final action that affects military installations (see Figure 1 on the previous page), the actions of the Secretary and the Commission did not directly affect the parties.14 Thus, the Court held that they were unreviewable under the APA.15 * * *

In addition, a subsequent Supreme Court decision [See Bennett v. Spear, 520 U.S. 154, 178 (1997)] described the BRAC reports as “purely advisory” and subject to the “absolute discretion” of the President, thus making them non-final agency action for APA purposes.18

Posted by Marcia Oddi on Wednesday, September 07, 2005
Posted to General Law Related

Law - California Legislature Approves Gay Marriage

"California Legislature Approves Gay Marriage" is the headline to this story today in the Washington Post. [Recall thaqt last Friday, Sept. 2, the ILB posted this entry headed "California Senate votes to let gays marry."] Some quotes from today's story:

SACRAMENTO, Sept. 6 -- The California Assembly voted Tuesday to allow gay and lesbian couples to marry, making the state's legislature the first in the nation to deliberately approve same-sex marriages and handing a political hot potato to an already beleaguered Gov. Arnold Schwarzenegger (R).

After a vehement floor debate in which legislators quoted the Pledge of Allegiance and accused each other of abusing moral principles, the state Assembly passed the Religious Freedom and Civil Marriage Protection Act, which recasts the definition of marriage as between "two persons," not between a man and a woman. The state Senate passed the bill last week. * * *

The legislature's move goes further than other states, such as Vermont and Connecticut, which have passed legislation allowing more strictly defined "civil unions." And it differs from Massachusetts, the only state to grant full marriage rights to same-sex couples, because the Massachusetts regulations were passed by order of the state's courts, which ruled that a ban on same-sex marriage was unconstitutional.

California is already one of the most gay-friendly states in the nation. Its domestic partnership legislation grants same-sex couples most of the benefits of married couples except a few, such as the right to jointly file income tax returns, the right to bring a foreign partner into the United States and right to pass Social Security benefits on to a spouse. So far, more than 30,000 same-sex couples are registered in California as domestic partners.

The Assembly members were aware that they were making history, and their debate Tuesday night -- to a packed gallery -- focused on whether they should vote their conscience or represent the wishes of their constituents. Slavery, the Bible and the Pledge of Allegiance were wielded by both sides in a piece of political theater rarely seen in Sacramento.

"There are a handful of issues where history will record where we were. This is one of them," said Thomas J. Umberg (D-Anaheim), who had abstained in a vote on the issue in June but voted yes on Tuesday night.

Here is the LA Times coverage. Some quotes:
The bill, which would change California's legal definition of marriage from "a civil contract between a man and a woman" to a "civil contract between two persons," now goes to Gov. Arnold Schwarzenegger. He has signaled that he will veto it.
* * *

The fight over same-sex marriage will now shift to the governor's office — and to the courts and perhaps the ballot box. A case testing the legality of gay marriage is moving toward the state Supreme Court, and opponents of same-sex marriage are trying to qualify two initiatives to ban the practice for the ballot next year. * * *

The LA Times story includes an infobox:
California could become the second state permitting same-sex marriages.

In other states:

• Massachusetts — Same-sex marriage legalized by court decision

• Connecticut — Civil unions legalized by legislation

• Vermont — Civil unions legalized by legislation

In other countries:

• Same-sex marriage is legal in the Netherlands, Belgium, Spain and Canada

From the San Francisco Chronicle:
Sacramento -- The state Assembly, in a stunning victory for the gay rights movement, approved a landmark bill allowing same-sex marriage Tuesday night and sent it to Gov. Arnold Schwarzenegger.

The measure, which passed with no votes to spare, marks the first time that a legislative body in the United States has approved a bill that legalizes gay marriage. Schwarzenegger has not taken an official position on the legislation but has hinted that he would veto it.

Just three months after the Assembly defeated an identical bill, 41 Democrats voted to approve the measure. Three Democrats who had abstained on the previous measure changed position and voted for the bill. * * *

The bill, AB849, does not require any religious organization to recognize or perform marriages for same-sex couples. The bill makes the law defining marriage gender-neutral. California state law did not place gender into the marriage code until 1977.

Opponents have promised to go to court if the bill becomes law, saying it violates the spirit of Proposition 22, a 2000 ballot initiative that defined marriage as being between a man and a woman. They also say they will go to the polls next year with proposed constitutional amendments that would ban same-sex marriage. * * *

Schwarzenegger's office has repeated that he believes the issue should be decided either by a vote of the people or a court decision. He has said he supports the state's current domestic partnership laws.

"The governor believes the people spoke with Prop. 22, and that is now in the courts," said Schwarzenegger spokeswoman Margita Thompson. "The governor believes that is where it belongs and will uphold any decisions the courts make." * * *

Focus now turns to Schwarzenegger.

"Schwarzenegger can't afford to sign the 'gay marriage license' bill," said Randy Thomasson, president of Campaign for Children and Families, which helped lead the statewide battle against AB849. "He'll actually become a hero to the majority of Californians when he vetoes it. The Terminator should announce without delay that this bill is dead meat."

But Geoff Kors, executive director of Equality California, said the governor would be deciding his legacy when he decides whether to sign or veto the bill.

"He will determine whether he will be the first governor to do a little heavy lifting and support equality for all or whether he will become the first governor to terminate our rights," he said. "We know in his heart he wants to do the right thing."

Posted by Marcia Oddi on Wednesday, September 07, 2005
Posted to General Law Related

Law - Ohio sex-offender ban challenged

"Sex-offender ban challenged: Ohio argues to keep them 1,000 feet away from schools" is the headline to this story today in the Cincinnati Enquirer. Some quotes:

The state law banning registered sex offenders from living within 1,000 feet of school property means that Mary Dover, 91, might be forced to leave her home of 29 years.

Dover, who is in a wheelchair and is married to a convicted sex offender, testified Tuesday in federal court as lawyers argued the constitutionality of the law allowing county and municipal officials to evict registered sex offenders living too close to schools.

Lawyers for the Prison Reform Advocacy Center have asked U.S. District Court Judge Sandra Beckwith to declare the law unconstitutional and illegal because it severely limits where sex offenders can live.

Posted by Marcia Oddi on Wednesday, September 07, 2005
Posted to General Law Related

Ind. Courts - Supreme Courts permits filming of juvenile court proceedings

The Munster (NW Indiana) Times reports today, in a story by RuthAnn Robinson, that a documentary film maker has been authorized by the Indiana Supreme Court to film juvenile court proceedings. Some quotes:

CROWN POINT | Cameras aren't allowed in Indiana courtrooms -- with one exception.

Karen Grau, of Calamari Productions, was filming at the Lake County Juvenile Justice Center Tuesday.

Seven years ago, the Indiana Supreme Court gave Grau, of Indianapolis, unprecedented access to juvenile court proceedings. They lifted the veil so the world could view what goes on in the otherwise tightly secured proceedings, said Dave Remondini, spokesman for the state's highest court.

"Karen has a good reputation in Indianapolis for her work," Remondini said. "Her first two productions were high quality and told important stories about the challenges facing judges and kids. The justices felt in depth documentaries would educate a large number of people and ideally bring resources to bear on some of these problems."

The payback for the courts is the camera catches teachable moments. All footage Grau shoots is available for judge, lawyer and court volunteer training. * * *

Juvenile proceedings typically are shielded from the public eye -- to protect the child and the family.

Grau said hers is the only production company in the nation allowed access to juvenile court. After watching a juvenile court case years ago, Grau was riveted by the human drama, she said.

"Nine years ago I was involved in a study of the Indiana foster care system and sat in on a juvenile parental termination case," Grau said. "I had been a journalist and when I saw this case -- it was sadly intoxicating to watch -- it made me realize there were a lot of issues to be discussed."

Grau is sensitive to the rights of the people she films and has their consent before taping begins. "We never film anybody who doesn't agree and sign a release first, every time we're in the courtroom," Grau said. * * *

The filming done Tuesday is just the beginning. Every hearing and every visit from court officials will be filmed until the case is resolved. It could take years to document the human drama and for the footage to air.

Grau said her goal is to raise the public's awareness of the issues children face. "It took a long time to get permission, and we went through close to a year's worth of legal conversations," Grau said. "With five Supreme Court justices looking over my shoulder, I'm very sensitive to the issues."

Posted by Marcia Oddi on Wednesday, September 07, 2005
Posted to Indiana Courts

Ind. Gov't. - Pluses and minuses of Indiana tax amnesty program

An editorial today in the Fort Wayne Journal Gazette begins:

If you’re a tax scofflaw, pay attention to the Indiana Tax Amnesty program. If you’re a responsible citizen, try to ignore the troublesome message that delinquent taxpayers will be rewarded with a second chance.

Posted by Marcia Oddi on Wednesday, September 07, 2005
Posted to Indiana Government

Tuesday, September 06, 2005

Ind. Law - Unusual Blakely-related issue pending in Floyd Circuit Court

"Floyd judge set to decide case role: Man in killing wants recusal." That is the headline to this story by Harold J. Adams today in the Louisville Courier Journal. Some quotes:

Floyd Circuit Court Judge J. Terrence Cody will decide soon whether to remove himself from the re-sentencing trial of a New Albany man convicted last year in the shooting death of a Jeffersonville man.

An attorney for Steven Paul argued on Friday that Cody should step aside because his previous sentencing of Paul creates an appearance of bias.

Cody sentenced Paul, 27, last year to the maximum 20 years in prison after he was convicted of aggravated battery in the fatal shooting of 35-year-old Donald "Ducky" Barnett.

The Indiana Court of Appeals threw out the sentence because of new sentencing procedures called for in federal and state Supreme Court rulings made after Paul's trial.

The new rules say that a jury, not the judge, must decide whether there are aggravating circumstances that might warrant anything beyond a standard "presumptive" sentence. The presumptive sentence for Paul is 10 years.

Cody, using the rules in existence at the time, found several aggravating factors last year that he said justified the longer sentence. On Friday he scheduled a new sentencing trial for May in which a jury will take a fresh look at whether those aggravating factors exist.

Stacy Uliana, Paul's attorney, urging Cody to let another judge preside over the trial, said, "There is a rational inference of bias because you already made the determination that Paul is guilty of these aggravators."

Abe Navarro, a deputy Floyd County prosecutor, argued that Cody's previous decision doesn't matter because "it's now in the hands of a jury." Navarro also said there's no reason to believe the judge would not follow the new rules, just as he followed the old rules.

Posted by Marcia Oddi on Tuesday, September 06, 2005
Posted to Indiana Law

Ind. Gov't. - More on school fees case

The ILB has had a series of entries on school fees and the pending Supreme Court decision in Nagy v. Evansville-Vanderburgh School Corp. The most recent is here.

Today the Grant County Chronicle-Tribune has an article on the upcoming decision. A quote:

Textbook rental fees aren't the only fees school charge. Many schools have assessed fees for certain classes, such as science and shop, to cover the costs of purchasing materials.

But a case before the Indiana Supreme Court could change that.

In response to Evansville-Vanderburgh School Corp.'s $20 activity fee to make up a projected budget deficit without raising taxes, some parents sued, claiming the fees are illegal. The Indiana Court of Appeals recently ruled that charging students an activity fee violates the Indiana Constitution's guarantee of free education.

Indiana Civil Liberties Union Executive Director Fran Quigley said while the case isn't about charging textbook rental fees, the Supreme Court's ruling may include an edict about the legality of the fees, which so far have been deemed constitutional.

"Book fees are obviously a big issue," Quigley said. "In the Court of Appeals, the Evansville fees are unconstitutional, and we think book fees are, too."

Posted by Marcia Oddi on Tuesday, September 06, 2005
Posted to Indiana Government

Ind. Courts - New court in Monroe County

The Indiana Daily Student has a story today on new Monroe County courts.

[More] This IDS story from Aug. 31 gives background. Some quotes:

The Indiana General Assembly approved the creation of two new courts in Monroe County, one in 2006 and another in 2008, after the Circuit Court judges submitted information to the state showing the county's courts were overloaded with cases.

Even with two extra courts, the caseload is so high that the county "probably needed more," Stoops said. "There isn't enough attention paid to individual cases because of time." * * *

The new court will oversee a mix of both criminal and civil cases. When determining the cost of the courts, the county council assumed the new court would handle the same mix of criminal and civil cases as the other seven courts combined, Stoops said.

The first court will be built in what is now the public defender's office, moving the office to the Curry Building.

The cost for the first court breaks down into $1.2 million for personnel, $27,000 for supplies, $60,000 for other services and $206,000 for furniture and renovations.

The public defender's office will hire two new deputy public defenders and a secretary for costs of $120,000. The prosecutor's

office also needs two new attorneys and a secretary for about the same price tag.

The single largest expense is $225,000 for six new probation officers. That is down from the $300,000 the probation department requested. The county will offer a lower salary and the probation officers will not be as "far along in their career," Stoops said. * * *

Monroe County hasn't added a new court for 20 years, and it will get another one in 2008. The second court should cost slightly less than the first court, but not by much, Knight said.

Posted by Marcia Oddi on Tuesday, September 06, 2005
Posted to Indiana Courts

Ind. Law - Crawfordsville considers ordinance re abandoned "big box" buildings

The Crawfordsville Journal Review reports today:

Crawfordsville’s City Council is looking to establish an ordinance regulating large retailers who leave behind abandoned buildings at its 6 p.m. committee hearing today.
“The city issued a new building permit to Wal-Mart for its Supercenter last year,” said Jacob Hurt, director of planning and community development. “So now we’ll be dealing with an empty Wal-Mart building. Target and JC Penney also are sitting empty at Crawfordsville Square Mall.”

The council wants the ability to regulate land use and restrict the sale or leasing of any “big box” retailers within city limits.

Among the reasons cited for regulating abandoned retail buildings are the potential increase for crime and vandalism, the sheer volume of land and utilities these structures take, common restrictions on reuse of the buildings imposed by the owners and loss of property and income tax revenue.

An abandoned large store, as defined by the council, is a building previously used for retail sales, 10,000 square feet or more, within the city’s jurisdiction but not within the downtown commercial district and vacant for at least four months.

“A lot more communities are going with ordinances like this because there are a lot of empty Wal-Marts in communities everywhere,” Hurt said.

The council plans to introduce discussion on amending the zoning code allowing the city to mandate retail stores of at least 20,000 square feet to be compatible with city plans on location, design and impact on its surroundings.

Hurt doesn’t expect the potential ordinance to deter new businesses from opening in Crawfordsville.

Posted by Marcia Oddi on Tuesday, September 06, 2005
Posted to Indiana Law

Ind. Decisions - Supreme Court to hear nine oral arguments this week

The Indiana Supreme Court calendar shows that it will hear oral arguments tomorrow, Wednesday, September 7, in a marathon five cases, followed by four more arguments the following day, Thursday, September 8. The cases for Sept. 7th are:

David Ryker Painting Co., Inc. v. George E. Nunamaker (summary)
Keene v. The Marion Superior Court (summary)
Ellenwine v. Fairley (summary)
Davidson v. State (summary)
Dorsey Mathews v. State (summary)
The cases to be heard Sept. 8th are:
Delta Airlines v. Cook (summary)
Robert Cavens, M.D. v. Tim Zaberdac (summary)
Duthmen Manufacturing, Inc. v. Reynolds (summary)
Brown v. Brown (summary)

Posted by Marcia Oddi on Tuesday, September 06, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Should mentally ill convicts face execution?

"Baird case raises moral questions: Should mentally ill convicts face execution?" is the headline to this AP story by Tom Coyne in the South Bend Tribune. Some quotes:

The debate that has long stymied legal and mental health experts boils down to one question, said Joseph Hoffman, an Indiana University law professor: "Just how mentally ill do you have to be before we'll say you really weren't guilty of a crime?"

Advocates for the mentally ill believe there are several hundred people on death row across the country who had no control of their impulses to kill. Many of those, they contend, should not be executed.

But courts and mental health experts have struggled to determine where to draw the line.

The U.S. Supreme Court ruled in 1986 in Ford v. Wainwright that it is unconstitutional to execute people who do not understand that they are being executed or why.

"That's a pretty low bar," said David Elliot, communications director for the National Coalition to Abolish the Death Penalty. "We need a higher bar."

In 2002, the high court ruled that executing mentally retarded people -- generally defined as having an IQ of 70 or lower -- was unconstitutionally cruel. But most states, including Indiana, allow the execution of the mentally ill.

Many believe it's simply a matter of time before the U.S. Supreme Court weighs in.

"There's a sense this issue is probably the next big one on the death penalty front for the court to finally make a determination on," said Curt Goering, senior deputy executive director of Amnesty International-USA. * * *

The American Bar Association's Task Force on Mental Illness and the Death Penalty has recommended prohibiting the death penalty for people who are "cognitively or volitionally impaired" at the time of their crime, saying they are less culpable than other offenders. The ABA likely will consider the recommendation in February, said Michael S. Greco, the group's president.

In his clemency order, Daniels acknowledged claims that Baird was mentally ill, but he emphasized other circumstances for his decision. They included the fact that life without parole in murder cases was not an option at the time of Baird's sentencing and that Baird's apparent delusions prompted him to reject a plea agreement that would have kept him behind bars for life.

Elliot said the high court set strong guidelines in its 2002 ruling on executing the mentally retarded, as well as in a ruling this year that said executing juvenile offenders violates the Constitution's ban on cruel and unusual punishment.

"In both of those categories there's a standard. Either you are 18 years old when you commit a crime or you're not. Either your IQ is below 70 or it's not," Elliot said. "Mental illness is a lot trickier for people to define, and so we haven't had the finality come from the courts that we have in these other categories."

Posted by Marcia Oddi on Tuesday, September 06, 2005
Posted to Indiana Law

Technology - In era of high-tech communications, ham radio prevails in hurricane zone

The Wall Street Journal has a free feature on ham radios today. Some quotes:

With Hurricane Katrina having knocked out nearly all the high-end emergency communications gear, 911 centers, cellphone towers and normal fixed phone lines in its path, ham-radio operators have begun to fill the information vacuum. "Right now, 99.9% of normal communications in the affected region is nonexistent," says David Gore, the man operating the ham radio in the Monroe shelter. "That's where we come in."

In an age of high-tech, real-time gadgetry, it's the decidedly unsexy ham radio -- whose technology has changed little since World War II -- that is in high demand in ravaged New Orleans and environs. The Red Cross issued a request for about 500 amateur radio operators -- known as "hams" -- for the 260 shelters it is erecting in the area. The American Radio Relay League, a national association of ham-radio operators, has been deluged with requests to find people in the region. The U.S. Coast Guard is looking for hams to help with its relief efforts.

Ham radios, battery operated, work well when others don't in part because they are simple. Each operator acts as his own base station, requiring only his radio and about 50 feet of fence wire to transmit messages thousands of miles. Ham radios can send messages on multiple channels and in myriad ways, including Morse code, microwave frequencies and even email.

Posted by Marcia Oddi on Tuesday, September 06, 2005
Posted to General News

Ind. Courts - "The race for the two newly created courts in Hendricks County has unofficially started"

"The race for the two newly created courts in Hendricks County has unofficially started." That is the lead to this story by Tania E. Lopez in today's Indianapolis Star. The new courts are Superior Courts 4 and 5:

The courts were created during the last session of the Indiana General Assembly and will start functioning in 2007. Hendricks County currently has three superior courts and one circuit court.

Posted by Marcia Oddi on Tuesday, September 06, 2005
Posted to Indiana Courts

Ind. Courts - State appeals court to hear case at Ball State

Gail Koch of the Muncie Star-Press reports today:

MUNCIE - The Indiana Court of Appeals is coming back to Ball State University.

A court panel will be on campus Thursday to hear an appeal by ex-Conseco Inc. executive Stephen Hilbert addressing a ruling that ordered him to repay $65 million to his former company. * * *

"With the Hilbert case, it's a case of size typically heard at the Supreme Court chambers in Indianapolis, but those chambers are under renovation right now," he said. "Paul knew that Ball State had the kind of large venue the court needed, and he also thought this case would be interesting for students to hear."

On appeal from the Hamilton County Circuit Court, the Hilbert case is one of several attempts by Carmel-based Conseco to recover unpaid loans and interest from the former executive. Hilbert first was sued by the firm in 2003 in an effort to recover what is now more than $243 million. He borrowed the guaranteed funds from Conseco to buy company stock in the late 1990s when he was chairman and chief executive of the firm.

When Conseco went bankrupt in 2002, those stocks were rendered worthless, yet the firm still had to repay Hilbert's loans to bank lenders. In interviews, Hilbert has said he owes little if any of the money because control of Conseco changed hands after his departure, and because the stock program was illegal.

Oral arguments in the case will be heard by a three-judge panel that includes Justices Carr Darden, Terry Crone and Mathias. After oral arguments, which should last an hour, the judges will take part in a question-and-answer session with the audience.

The case is Stephen C. Hilbert et al vs. Conseco Services, LLC. The summary from the Court website:
Conseco Services, LLC, brought an action against Stephen Hilbert, individually and as the trustee of a number of Hilbert trusts, seeking repayment of money paid on behalf of him and them as interest on their purchase of more than $162 million in Conseco, Inc. stock from 1996 through 1999. The lawsuit alleged that not only had the trusts and Hilbert breached the agreements to repay this money but also that this breach was a default of the mortgage on Hilbert's mansion in Carmel - thereby warranting an order of foreclosure. The trial court's order granted Conseco Services (1) a judgment against the trusts in the amount of $65, 712, 557. 85 plus interest, (2) a judgment in that amount against Hilbert personally, and (3) a decree of foreclosure on the mansion. Hilbert appeals the order, arguing that , for various reasons, he and the trusts should not have to repay this money and that, therefore, the decree of foreclosure is erroneous.

Posted by Marcia Oddi on Tuesday, September 06, 2005
Posted to Ind. App.Ct. Decisions | Indiana Courts

Ind. Law - "Local legal community reflects on Rehnquist legacy"

"Local legal community reflects on Rehnquist legacy" is the headline to this story today in the Fort Wayne Journal Gazette. A quote:

Joseph L. Hoffman, professor of law at Indiana University, clerked for Rehnquist during the 1985 court term, immediately before Rehnquist became chief justice.

“He was a wonderful man to work for,” Hoffman said. “Judge Rehnquist was just the most personable, non-pretentious, down-to-earth guy. I feel a lot of sadness today. It leaves me feeling empty.”

Hoffman said he stayed in touch with Rehnquist, who visited IU twice since Hoffman became a professor there. “The last time I saw him was in early June at the clerks’ reunion,” he said. “He seemed like life was difficult for him. He was suffering a lot of challenges but mentally he seemed the same.”

Hoffman said he left the reunion with the feeling that Rehnquist would be back for the court’s next term.

Hoffman believes Rehnquist’s legacy will have three parts.

“He will go down in history as one of the greatest chief justices of the court for his management of the court, for making it a pleasant place for the other justices,” Hoffman said. “Second, he will be remembered as the justice who turned the tide on federalism, the relationship between states and the federal government.”

When Hoffman graduated from law school in the 1980s, there was a feeling the federal government could do whatever it wanted and states could only do what the federal government let them, he said. “He was able to turn that situation around,” Hoffman said. “There are limits on what the federal government can do.”

Finally, he said Rehnquist returned the sense that there’s a balance between the rights of a criminal defendant and the rights of society following a time when the rights of society seemed less important.

“He created a healthy sense that both interests are important,” Hoffman said.

Areas remained, such as privacy and affirmative action, that Rehnquist would have liked to change, Hoffman said.

Posted by Marcia Oddi on Tuesday, September 06, 2005
Posted to Indiana Law

Law - "Database helps agents prove Internet child-porn images are real"

"Database helps agents prove Internet child-porn images are real" is the headline of a story by Maureen Hayden in today's Evansville Courier& Press. Some quotes:

When federal agent Michael Eickhoff testified in an Internet child pornography case last week in Evansville, he was prepared to do more than just describe the sexually explicit images found downloaded on the defendant's computer.

He was prepared to prove that the images involved real children being victimized by real events.

For Eickhoff that meant using a confidential and restricted database populated with more than 100,000 known images of child pornography gathered from around the world, including the images of victims already identified and pictures of sexually exploited children from magazines published before modern imaging technology was invented.

The database, launched 19 months ago, is digitized and categorized to make identification not just swift but certain for investigators such as Eickhoff who face a strange new challenge: They must prove that the victims of child pornography are not virtual children.

The reason is a 2002 U.S. Supreme Court decision that ruled "virtual" child pornography - images created or morphed by digital technology - is protected as free speech. The court struck down as unconstitutional the 1996 Child Pornography Prevention Act, which specifically outlawed the "virtual" child pornography created by computer graphics. The ruling forced investigators and prosecutors across the country to change the way they approach Internet child pornography investigations.

The 2002 Supreme Court decision is, I believe, Ashcroft v. Free Speech Coalition, available here via Findlaw.com.

Posted by Marcia Oddi on Tuesday, September 06, 2005
Posted to General Law Related

Monday, September 05, 2005

Ind. Decisions - Cinergy loses summary judgment motion in NSR case

Last Monday, August 29, 2005, Chief Judge McKinney issued an order denying Cinergy's motion for summary judgment, and granting the USA's motion, in the case of UNITED STATES of America, Plaintiff, STATE of New York, State of Connecticut, State of New Jersey, Plaintiff-Intervenors, and HOOSIER ENVIRONMENTAL COUNCIL, Ohio Environment Council, Third-Party Plaintiffs v. CINERGY CORPORATION; PSI Energy, Inc.; and Cincinnati Gas & Electric Co. Some quotes:

This matter is before the Court on the parties' request for the Court to decide the purely legal question of what test applies to determine whether an emissions increase occurs so as to trigger the Clean Air Act's ("CAA") New Source Review ("NSR") permit provisions. The United States of America (the "USA") filed a Motion for Partial Summary Judgment on Emissions Test. In response, defendants Cinergy Corporation; PSI Energy, Inc.; and Cincinnati Gas & Electric Co. (collectively, "Cinergy") filed a Motion for Summary Judgment on the Applicable Test for Emission Increases. The parties have fully briefed the issue and it is now ripe for ruling. For the reasons explained herein, the USA's motion is GRANTED, and Cinergy's motion is DENIED.

I. BACKGROUND

The USA has brought this action against Cinergy alleging, inter alia, that it violated NSR provisions when it made physical changes to its units that were "modifications" without first having obtained a pre-construction permit. The Prevention of Significant Deterioration ("PSD") program requires that: "No major emitting facility on which construction [or modification] is commenced after August 7, 1977, may be constructed [or modified] ··· unless (1) a permit has been issued for such proposed facility in accordance with this part ····" 42 U.S.C. § 7475(a). The Nonattainment New Source Review ("NNSR") program requires "permits for the construction or operation of new or modified major stationary sources anywhere in the nonattainment area." Id. § 7502(c)(5). Central to this lawsuit, then, is whether the changes Cinergy made to its emitting sources were modifications. * * *

III. DISCUSSION

The appropriate test for measuring emissions under the PSD program has been the subject of numerous judicial opinions over the years, including one from this Court, United States of America v. Southern Indiana Gas and Electric Co., No. IP 99-1692-C-M/F, 2002 WL 1629817 (S.D.Ind. July 18, 2002) (" SIGECO"), and from the Seventh Circuit Court of Appeals, Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901 (7th Cir.1990) (" WEPCO"). In SIGECO this Court held that the PSD program requires an owner or operator to determine whether a preconstruction permit is required before construction begins. SIGECO, at *3. In WEPCO the Seventh Circuit addressed inter alia, how to assess emissions increases for PSD purposes. Specifically, the court ruled that the EPA could not assume a unit would operate at its full potential after physical change, but must consider past operating conditions. WEPCO, at 917-18.

More recently the District of Columbia and Fourth Circuit Courts of Appeals have issued opinions that bear directly on this issue. In United States v. Duke Energy Corp., 411 F.3d 539 (4th Cir.2005), the Fourth Circuit Court of Appeals found that once Congress incorporated the statutory definition of "modification" from the NSPS program into the PSD statute, the EPA could not interpret the definitions differently. Duke Energy, 411 F.3d at 546-47. * * *

The Court disagrees with both Cinergy and the Duke Energy court that the EPA's definition of "actual emissions," means that " a net emissions increase can result only from an increase in the hourly rate of emissions." See Duke Energy, 278 F.Supp.2d at 640. * * *

[T]he plain meaning of the increased hours exclusion is that an increase in hours or production rate are not a "physical change" and thus cannot, alone, be a modification. Increased hours and production rate are not excluded from the definition of "modification"; that is, if a physical change results in an increase in hours of operation that causes a net emissions increase, a modification has occurred. Not only is this the plain and most logical reading of the regulation, it prevents the very situation about which Cinergy is concerned-that in which an increase in hours or production rate unrelated to any physical change would be considered a modification and subject the source to PSD review. The EPA confirmed this view by way of the "Clay Memorandum" issued on September 9, 1988. * * *

Cinergy argues that two statements Edward Reich, then-Director of EPA's Division of Stationary Source Enforcement, made in 1981 (the "Reich Memos") indicate otherwise, and also that the Reich Memos demonstrate an EPA interpretation that is contrary to its current litigation position. This Court agrees with the Southern District of Ohio's view that the Reich Memos are contrary to the plain language of the CAA and EPA's regulations. See United States v. Ohio Edison Co., 276 F.Supp.2d 829, 877 (S.D.Ohio.2003). The Reich Memos are not authoritative here.

I am hoping to provide at least a link to the complete opinion later this week; the SD Indiana's opinions page has been out of commission since late last week. Check back.

[Update 9/6/05] Here is the opinion.

Posted by Marcia Oddi on Monday, September 05, 2005
Posted to Environment | Ind Fed D.Ct. Decisions

Law - Notre Dame Law Student's Blog Featured in NY Times

A Notre Dame Law student's Blog is featured today in the NY Times. And not for his law-related posts, but for predicting the impact of Katrina three days before it struck. He is self-dsecribed as "a sports fan, a politics, media & law junkie, an astronomy & meteorology nerd, a Mac addict, a Tolkien fanatic and an all-around dork."

Today's Times story is headlined: "A 'Weather Nerd' in Indiana Sent a Warning to the Mayor." Some quotes:

One of the earliest and perhaps clearest alarms about Hurricane Katrina's potential threat to New Orleans was sounded not by the Weather Channel or a government agency but by a self-described weather nerd sitting on a couch in Indiana with a laptop computer and a remote control.

"At the risk of being alarmist, we could be 3-4 days away from an unprecedented cataclysm that could kill as many as 100,000 people in New Orleans," Brendan Loy, who is 23 and has no formal meteorological training, wrote on Aug. 26 in his blog, irishtrojan.com. "If I were in New Orleans, I would seriously consider getting the hell out of Dodge right now, just in case."

Mr. Loy's posting that Friday afternoon came three days before the hurricane struck and two days before the mayor of New Orleans, Ray C. Nagin, issued an evacuation order. Posts over the next several days, in aggregate, seem now like an eerie rewriting of the tale of Chicken Little, in which the sky does in fact fall.

In the cooperative and competitive world of blogs, Mr. Loy's has gotten some serious praise. Mickey Kaus, whose kausfiles blog is featured on Slate.com, wrote on Friday that "Loy's blog for the past week is a pretty extraordinary document," adding that "it should maybe be in the Smithsonian, if you can put a blog in the Smithsonian." * * *

That was more weight than Mr. Loy, who weighs 160 and is 6 foot 2, is accustomed to throwing around. A second-year law student at Notre Dame, he began blogging in 2002 - writing about football (his blog's name combines Notre Dame's football team, the Fighting Irish, with that of his college team, the Trojans of the University of Southern California), his cats, his dog, his fiancée Becky, the Red Sox, politics, "The Lord of the Rings" and weather.

"Hurricane Hugo was the first storm that I paid attention to, when I was 7 or 8," he said in a telephone interview from South Bend, Ind. "I found them fascinating and became kind of a weather nerd, watching the Weather Channel religiously." Mr. Loy joined online discussions with other hurricane watchers, and monitored the National Hurricane Center's Web site, whose satellite pictures he regularly posts and analyzes on his blog. * * *

Classes started last week, and Mr. Loy has put an end to all-night blogging. Recent entries have been as likely to be about his cats or football as Katrina. He will keep chasing hurricane information, but he says that if a hurricane approached him, he would heed his own advice.

Scrolling through Brendan Loy's blog for the past 10 days or so is pretty fascinating. Start with this temporary archive, which concludes with the Monday night of Aug. 29th/Tuesday morning of Aug. 30th public realization that New Orleans had really not been "spared"; rather, "the worst is happening." Then to his main page, with the 9/5/05 post, "Looking back." Great work, Brendan!

Posted by Marcia Oddi on Monday, September 05, 2005
Posted to General Law Related

Ind. Law - More on "Public access to police records stymied by Evansville union contract"

Today, the Evansville Courier& Press editor, Paul Mcaulifee, writes:

As you may have read in a Wednesday story by Jennifer Whitson, the three parties jointly submitted a public records dispute to the Indiana public access counselor.

The dispute grew out of a lawsuit by a man named Dan Hudson against Evansville police officer Brett Worthington and Deaconess Hospital. Hudson contended that Worthington had attacked him and held him against his will during a disagreement about Hudson's patient rights at a Deaconess facility. The lawsuit is pending.

The suit prompted Courier & Press staff writer Jimmy Nesbitt to ask for records of past disciplinary actions.

That's when he ran into a provision in the contract between the city and the FOP, bargaining agent for Evansville's police. It requires that the city not release information about any police officer from any internal affairs file or personnel file. If the information is subpoenaed, the city must fight that subpoena.

The wording has been in the contract for at least 14 to 15 years, says the city's chief attorney, corporation counsel David Jones. He also contends it's part of the noneconomic portions of the contract that aren't subject to negotiation in contract talks.

We don't believe that the contract can supersede state law, which says the public is entitled to the factual information behind final disciplinary actions against public employees.

Given that disagreement, what could have ensued was a long legal battle with the Courier & Press and FOP spending money, and - perhaps most important - the city spending a bunch of taxpayer money in litigation costs.

Jones suggested a remedy: Submit the matter to the state's public access counselor, Karen Davis, with the agreement that all parties would consider her decision binding.

The access counselor, the state's expert on public records and open meetings law, normally has only advisory power.

The FOP and its attorney, Charley Berger, agreed to those terms, as did the Courier & Press. The matter now is in Davis' hands.

However it turns out, all parties will be able to feel they were willing to be part of a solution, not just part of a problem.

The FOP matter was the second time the city administration and this newspaper have collaboratively submitted a dispute to the public access counselor.

Last year the access counselor was able to give us some guidelines on what records of crimes and related matters should be open.

Since then, the Courier & Press and the Police Department have been working within those guidelines to solve records issues.

Background. Last Wednesday the ILB posted this entry titled "Ind. Law - Public access to police records stymied by Evansville union contract; access to Public Counselor informal opinions."

I refer interested readers back to that entry, which concluded with my position that informal opinions of the Public Access Counselor (PAC) (which, along with the Counselor's formal opinions, are of course public records) be made readily accessible to the public. I included my earlier correspondence with the PAC, where I urged: "at a minimum publish online a timely and complete index of all your letter/e-mail informal opinions." Without such an index, the public has no way of knowing what informal opinions have been issued and so cannot easily request to see them.

Posted by Marcia Oddi on Monday, September 05, 2005
Posted to Indiana Law

Environment - Impact of Hurricane Katrina

"Environmental damage 'a creeping catastrophe'" is the headline to this story today in the Chicago Tribune. Some quotes:

Long after murky water is pumped out of New Orleans and debris is cleared from the Gulf Coast, efforts to recover from Hurricane Katrina will be hampered by the soggy, potentially toxic mess left behind.

The longer floodwaters are trapped in New Orleans, experts said, the more likely the city will be contaminated with industrial compounds, sewage and household chemicals. Draining the water could take months, leading some researchers and government officials to conclude it could take years for the region to recover.

One called the situation "a creeping catastrophe."

The rescue effort has so overwhelmed local, state and federal authorities that it likely will take days, if not weeks, to assess the environmental damage and what it will take to restore basic services that people normally take for granted, such as drinking water and sewage treatment.

For now, environmental crews have been enlisted in the effort to move desperate residents to safety and shelter.

"This is the worst natural disaster I have ever seen and the worst our agency and government and people have had to face," Stephen Johnson, administrator of the U.S. Environmental Protection Agency, said in an interview. "It's catastrophic." * * *

Even before the storm hit, many of the region's waterways were among the dirtiest in the nation. Louisiana ranks fourth in the nation for releases of toxic chemicals into rivers and streams, and it leads the nation in releases of chemicals that persist in the environment and build up in the human body, according to government data.

In the short term, the sheer volume of water should dilute any chemicals that leak into New Orleans. But experts say the city could face long-term problems from contaminated sediment left behind once the floodwaters are pumped away.

"There are going to be concentrations that could turn some areas into brownfields," said Thomas La Point, director of the Institute of Applied Sciences at the University of North Texas, referring to a term used to describe polluted industrial sites.

Some neighborhoods could be so contaminated that they would be unfit for building houses, he said.

Industrial waste is certain to make cleanup efforts more difficult, La Point said. So are the many cans of paints, solvents, fertilizers and pesticides stewing in flooded garages and basements. If the chemicals haven't already leaked into floodwaters, La Point said, household containers soon will rust in the warm, brackish floodwaters inundating New Orleans.

"This is a creeping catastrophe," he said. "We thought they had missed the big shot, but they could be facing very serious problems for years to come."

To speed efforts to pump floodwaters back into Lake Pontchartrain and the Mississippi River, the EPA is waiving the need for Clean Water Act permits. Some of the toxic muck will end up floating downstream or settling to the lake and river bottom.

Katrina also apparently wiped out some of what was left of the barrier islands in the Gulf of Mexico that once provided a natural defense to hurricanes. The rapid loss of marshes, islands and wetlands in the region from development and environmental degradation has led some researchers to speculate that future storms could be even more destructive.

The San Franscisco Chronicle reports today: "WETLAND RESTORATION SEEN AS CRUCIAL: Delta's marshes, islands form buffers against storm surges, scientists say." Some quotes:
Levees were built around New Orleans after a disastrous 1927 flood, and an extensive canal and levee system was dug throughout the delta to accommodate navigation and oil development through the 1940s. The Mississippi River was basically channelized, and its sediment load directed off the continental shelf.

The wetlands and barrier islands began withering away. More than 1 million acres have been lost since 1930. Scientists predict another 300,000 acres will disappear by 2050 if the trend isn't reversed. And with each acre lost, said Twilley, the threat to New Orleans is increased.

The consequences of wetland and barrier island loss have been clear to scientists for some time. Detailed scenarios of a major hurricane hitting New Orleans -- many eerily similar to what transpired with Katrina -- have been published in both the popular and scientific presses at least since the early 1990s.

"By the early 1970s, we knew the diagnostics of how the system was changing," [Robert Twilley, a professor of wetland science at Louisiana State University] said.

Now, Twilley said, scientists are ready with a "prescription" to reverse the trend: reconnecting the river to its historic delta, removing some canals and other artificial structures, distributing dredge spoils so that wetlands and barrier islands once again emerge from the gulf waters.

Such a restoration would have benefits other than surge control, scientists say. Specifically, it should bolster the region's important seafood industry. Gulf wetlands are critical nursery areas for a wide range of commercially important marine species, including shrimp, blue crab, oysters, redfish, menhaden and weakfish.

Scientific American has posted online "a list of our past hurricane coverage." This includes its prescient October 2001 article, "Drowning New Orlean," Some quotes from that article:
New Orleans is a disaster waiting to happen. The city lies below sea level, in a bowl bordered by levees that fend off Lake Pontchartrain to the north and the Mississippi River to the south and west. And because of a damning confluence of factors, the city is sinking further, putting it at increasing flood risk after even minor storms. The low-lying Mississippi Delta, which buffers the city from the gulf, is also rapidly disappearing. A year from now another 25 to 30 square miles of delta marsh--an area the size of Manhattan--will have vanished. An acre disappears every 24 minutes. Each loss gives a storm surge a clearer path to wash over the delta and pour into the bowl, trapping one million people inside and another million in surrounding communities. Extensive evacuation would be impossible because the surging water would cut off the few escape routes. Scientists at Louisiana State University (L.S.U.), who have modeled hundreds of possible storm tracks on advanced computers, predict that more than 100,000 people could die. The body bags wouldn't go very far

A direct hit is inevitable. Large hurricanes come close every year. In 1965 Hurricane Betsy put parts of the city under eight feet of water. In 1992 monstrous Hurricane Andrew missed the city by only 100 miles. In 1998 Hurricane Georges veered east at the last moment but still caused billions of dollars of damage. At fault are natural processes that have been artificially accelerated by human tinkering--levying rivers, draining wetlands, dredging channels and cutting canals through marshes. Ironically, scientists and engineers say the only hope is more manipulation, although they don't necessarily agree on which proposed projects to pursue. Without intervention, experts at L.S.U. warn, the protective delta will be gone by 2090. The sunken city would sit directly on the sea--at best a troubled Venice, at worst a modern-day Atlantis.

As if the risk to human lives weren't enough, the potential drowning of New Orleans has serious economic and environmental consequences as well. Louisiana's coast produces one third of the country's seafood, one fifth of its oil and one quarter of its natural gas. It harbors 40 percent of the nation's coastal wetlands and provides wintering grounds for 70 percent of its migratory waterfowl. Facilities on the Mississippi River from New Orleans to Baton Rouge constitute the nation's largest port. And the delta fuels a unique element of America's psyche; it is the wellspring of jazz and blues, the source of everything Cajun and Creole, and the home of Mardi Gras. Thus far, however, Washington has turned down appeals for substantial aid.

Posted by Marcia Oddi on Monday, September 05, 2005
Posted to Environment

Sunday, September 04, 2005

Not Law but Interesting - Hurricane Katrina images [Updated]

I watched the before and after satellite images of the terrible devastation caused by Hurricane Katrina and read the name "DigitalGlobe" on the images.

Here is the digitalglobe.com site. Under "News" in the left column, I clicked on "Hurricane Katrina Imagery."

Once there, I selected "Download an analysis of New Orleans hurricane images here." This is a 2.32 MB, 10-page pdf document with most of the photos I saw on CNN.

[Updated 9/5/05] A story today in the NY Times is headlined "Internet Mapping: For Victims, News About Home Can Come From Strangers Online." It begins:

SAN FRANCISCO, Sept. 4 - On Friday afternoon, Leonard Sprague, a general contractor in Gainesville, Fla., saw the electronic plea.

"I hope someone can help," someone using the name ZuluOne wrote to an online bulletin board. "I am trying to get a current overlay for the area around 2203 Curcor Court in Gulfport, Miss."

Mr. Sprague knew that "current overlay" meant a bird's-eye view. And an altruistic impulse combined with an urge to play with a new technology propelled him into action. Using his PC, he superimposed a freshly available posthurricane aerial photograph over a prehurricane image of the same neighborhood. After 15 minutes, he had an answer.

"Actually, it looks like your house looks pretty good," Mr. Sprague told ZuluOne by e-mail. "Unfortunately, it doesn't look so good for some of your neighbors. Best of luck to you and your family."

In the aftermath of Hurricane Katrina, hundreds of displaced residents and their relatives - along with people like Mr. Sprague - have turned to the Internet for information about a home feared damaged or destroyed. Many are using Google Earth, a program available at the Google Web site that lets users zoom in on any address for an aerial view drawn from a database of satellite photos.

By the end of last week, a grass-roots effort had identified scores of posthurricane images, determined the geographical coordinates and visual landmarks to enable their integration into the Google Earth program, and posted them to a Google Earth bulletin board - the place ZuluOne turned for help.

Most of the images originated with the Remote Sensing Division of the National Oceanic and Atmospheric Administration, which has been posting them to its Web site (noaa.gov) since Wednesday.

Taking inspiration from the online volunteers, Google, NASA and Carnegie Mellon University had by Saturday night made the effort more formal, incorporating nearly 4,000 posthurricane images into the Google Earth database (at earth.google.com) for public use.

Posted by Marcia Oddi on Sunday, September 04, 2005
Posted to General Law Related

Law - "On Moral Grounds, Some Judges Are Opting Out of Abortion Cases"

"On Moral Grounds, Some Judges Are Opting Out of Abortion Cases" is the headline to this Adam Liptak story in today's NY Times. Some quotes:

MEMPHIS - A pregnant teenager went to the grand and imposing county courthouse here early in the summer, saying she wanted an abortion. The circuit court judge refused to hear the case, and he announced that he would recuse himself from any others like it.

"Taking the life of an innocent human being is contrary to the moral order," the judge, John R. McCarroll of Shelby County Circuit Court, wrote in June. "I could not in good conscience make a finding that would allow the minor to proceed with the abortion."

The teenager was in court because Tennessee, like 18 other states, requires minors to obtain a parent's permission before they can have an abortion.

But the state also allows another option. The teenagers can ask a judge for permission to decide for themselves.

Judges, however, are starting to opt out. Other judges of the Shelby Circuit Court have recused themselves like Judge McCarroll, and now, according to one judge, only four of the nine judges on the court hear such abortion applications.

Judges in Alabama and Pennsylvania have also said they will not take such cases.

The actions, similar in some ways to pharmacists' refusal to dispense drugs related to contraception or abortion on moral grounds, have set off a debate about the responsibilities of judges and the consequences of such recusals, including political ones when judges are elected rather than appointed.

Judge McCarroll's decision prompted 12 experts on judicial ethics to write to the Tennessee Supreme Court in late August. The experts called his action lawless and said they feared that his approach could spread around the nation and to subjects like the death penalty, medical marijuana, flag burning and even divorce.

"Unwillingness to follow the law," the letter said, "is not a legitimate ground for recusal."

An opinion piece by Florence A. Ruderman in Thursday's NY Times, titled "Prescription for Injustice," discusses pharmacists who refuse to fill prescriptions they do not agree with:
There is now a growing movement of pharmacists who refuse to fill prescriptions to which they have moral or religious objections. One such organization is Pharmacists for Life International, which claims to have 1,600 members. Almost always the refused prescriptions are related to birth control. Many women have already met with these refusals. Some have been hectored and humiliated. And some refusals have involved women who have been raped, or whose lives or well-being would be endangered by a pregnancy. At least one lawsuit has already been filed; more are expected.

The pharmacists involved in this movement sometimes cite "business judgment" to justify their refusal to fill particular prescriptions. More often, however, they invoke "conscience." And now they are asking for state laws that not only recognize a right to refusal, but also shield them from lawsuits if that refusal results in harm.

This may sound simple. Shouldn't a democracy respect claims of conscience? In fact, such claims are not simple; they are highly problematic. And they should not wipe out competing claims or override consideration of wider social consequences.

From 1957 through the early 1960's, I conducted a study of doctors' views and behavior in clinical situations involving birth control. Here I found ample evidence of how complex claims of "conscience" can be. A doctor's decision to prescribe, or not prescribe, birth control depended not only on his personal moral or religious convictions, but also on a web of community and institutional pressures. Sometimes these pressures led doctors to act - to their own unhappiness - in ways that were contrary to their own beliefs.

For pharmacists to claim that they have a right to refuse to fill valid, lawful prescriptions based on their own moral or religious beliefs can amount to a claim that they have a right to determine how patients may care for their own health, and what doctors may or may not prescribe. In effect they claim the right to annul birth-control-related prescriptions. In some cases pharmacists have refused to provide information on other pharmacies where a prescription might be filled or have refused to return a prescription so that a woman might go elsewhere. These pharmacists are not simply "opting out" for themselves; they are making it impossible for certain prescriptions to be filled at all.

Allowing a pharmacist the right to refuse to fill a legal prescription, without simultaneous safeguards to ensure that the prescription can be filled promptly elsewhere or by someone else, surrenders the right of the majority to willful obstruction by a determined minority. It is important to realize that even with some legally specified safeguards for transfer or referral, a movement of this sort can have the effect of depriving many women of birth control. In small towns or rural areas, there may not be another pharmacy, or a woman may have no way to get to one that is far from her home. And other pharmacists may be unwilling to fill contested prescriptions, out of fear of becoming targets for boycotts or other hostile actions. This is a way to nullify the laws of the land - with a state-provided shield for doing so.

Clearly it is women who will be most directly and immediately affected. But the pharmacists' refusal movement threatens everyone. Similar tactics can be used to subvert or negate other laws and other rights that may be contrary to some individual's or group's moral or religious views.

For background, see this ILB entry from April 2, 2005.

Posted by Marcia Oddi on Sunday, September 04, 2005
Posted to General Law Related

Ind. Gov't. - Senator Greg Server featured; Daniels questioned on proposed out-of-state contract

The Evansville Courier& Press has a feature today on Greg Server, long-time state senator from Evansville, recently appointed to the Indiana Utility Regulatory Commission by Governor Daniels. Some quotes from the story by Jennifer Whitson:

INDIANAPOLIS - There are two sides to Sen. Greg Server. One is the unflappable political insider, always dressed in a suit and walking the marbled hallways of the Statehouse with no particular hurry and a sly grin.

Colleagues said he was always thinking 10 steps ahead, though he wouldn't often reveal those thoughts, instead assuring allies with a calm grin that it would all work out. * * *

June Lyle, a lobbyist with AARP Indiana, said she could sometimes get bogged down in how to tackle the immediate crisis facing a bill.

"Sen. Server has an uncanny ability to sort of see the big picture," she said. And Server was a work horse, often burdened with scores of bills to carry because he was such a dependable shepherd. * * *

Senate President Pro Tem Robert Garton, R-Columbus, said Server was persistent and dependable.

"If he lost one session, he was back again the next year," Garton said. "If you gave Greg an assignment, he would do it."

And despite the plotting and planning on bills, Server was always analytical, not political or vengeful.

"He has always been a gentleman and a person of honor," said Sen. Lindel Hume, D-Princeton.

But when colleagues are asked about Server, most stories end up being about his other side - the things he does outside the Statehouse. He's an experience horseback rider, taking his horses in a trailer out west to ride trails and camp with them.

"I just don't look like it for some reason," Server said. "People just don't picture me on a horse."

He loves to ski - on water and downhill - and he's an entrepreneur, buying and fixing up homes in Florida and Indianapolis.

"I'm pretty handy," Server said. Sen. President Pro Tem Robert Garton, R-Columbus, said he remembers stopping by a Marco Island, Fla., home Server had to find him running a jackhammer to rip up concrete. Senate Appropriations Chairman Robert Meeks, R-LaGrange, also stopped by another Florida property while on vacation only to get roped into helping Server paint the entire home.

The Fort Wayne Journal Gazette's Sunday "Political Notebook" reports today:
Gov. Mitch Daniels’ administration is set to give another big state contract to an out-of-state company. This time GEO Group Inc. of Boca Raton, Fla., began negotiations to run the state prison in New Castle – a first-ever endeavor for Indiana. The exact terms of the contract are still being finalized.

It is the first time the company has ever done any business in Indiana, according to Pablo Paez, director of corporate relations for GEO.

So what happened to Daniels’ promise to “Buy Indiana?”

The governor said he is willing to sign whatever waiver is necessary – as required by his own executive order – because the contract is a win-win for everyone. He noted that hundreds of Hoosiers will be employed at the facility, which has sat mostly unused in recent years because of budget constraints.

And Daniels said he is not aware of an Indiana firm that provides this type of service.

Posted by Marcia Oddi on Sunday, September 04, 2005
Posted to Indiana Government

Law - Flood insurance coverage, coastal development, and Hurricane Katrina

Last Wednesday the NY Times had a story in its business section, written by Jennifer Bayot, headlined "Insurance: Payouts Hinge on the Cause of Damage." Some quotes:

As a member of the national catastrophe team at Allstate Insurance, Bill Mellander follows hurricanes for a living. And Katrina looks different from other hurricanes he has seen.

"The thing that sticks out so dramatically is the extent of the flooding," said Mr. Mellander, whose job is to swoop into disaster areas to help evaluate damage and share information with the news media. New Orleans, in particular, "is essentially a giant bathtub," he said.

If flooding - rather than strong winds - turns out to be responsible for most of the damage caused by Katrina, many displaced homeowners may be in for more frustration. While most have insurance that protects them against wind damage, such insurance rarely covers floods. Homeowners must buy flood protection separately.

"A lot of people who live in flood zones have homeowners insurance but don't have flood insurance," said J. Robert Hunter, insurance director for the Consumer Federation of America. "If a flood hasn't happened in an area in a long time, people tend not to think about it."

In many of the Louisiana counties hit hardest by Katrina, less than half of households are covered for floods, according to an analysis of federal data by The New York Times. In Orleans Parish, which includes New Orleans, and in St. Tammany Parish, roughly 4 in 10 households are covered. But in St. Bernard Parish and Jefferson Parish, 57 percent of households bought flood protection.

In Mississippi, the picture is far different. In Hancock County, 1 in 4 households are insured against flooding. In Jackson and Harrison Counties, the number is 1 in 10. * * *

Proving wind damage versus flood damage can be tricky, said Donald F. Thorpe, a senior insurance analyst at the credit rating agency Fitch Ratings. He offered a hypothetical case: A hurricane blows off the roof of a home and then 15 inches of rain falls in the living room.

That loss typically should be covered by hurricane protection, he said. But some insurers may refuse to attribute that flooded living room to the absent roof.

After all, "if the rain just comes through the floor, that would not be insured," he explained. "So there's a fairly high risk of disputes. Then you have to bear the loss yourself - that could be significant for people."

Insurers may also be able to save on claims because flood coverage is financed by the government, through a division of the Federal Emergency Management Agency.

The Times story links to this graphic that shows the percent of housing units with flood insurance in the coastal area affected by Katrina.

Today the Washington Post has an interesting article by business writer Albert B. Crenshaw headlined "'Under-Bought' Flood Insurance Proves Its Value." Having read the NY Times story last Wednesday, the first thing that caught my eye in the Post story was this quote:

"People don't buy insurance unless they have to, for the most part," said COFFI President Douglas J. Elliott. Also, he said, "I think there's been a certain fatalism, particularly on the coast of Mississippi [where just] one in four homes" is covered.

"That's just shocking to me, because it's cheap stuff," he said.

Federal flood insurance "is a greatly under-bought product," said J. Robert Hunter, who once headed the program as federal insurance commissioner.

But Hunter, now director of insurance at the Consumer Federation of America, said that while the program's penetration in Mississippi and Alabama mirrors national levels of 10 to 20 percent, it is much higher in New Orleans, covering perhaps half the houses there.

But "New Orleans is an exception," he said.

In other words, recognizing the disadvantages of their location, more people in New Orleans have purchased flood insuance than apparently anywhere else in the country. More from the Post story:
For nearly 40 years the federal government has made flood insurance available to property owners, filling a gap left by private carriers, which generally decline to write the coverage.

The program has grown controversial over the years. Critics have argued that it encourages Americans to build on beaches, flood plains and other sites that shouldn't be built on -- and wouldn't be if the government weren't willing to pay when such homes and vacation spots are washed away.

Nonetheless, as the New Orleans disaster illustrates, the insurance can be immensely valuable. Policies under the National Flood Insurance Program (NFIP) will pay up to $250,000 for residential buildings, plus another $100,000 for contents that are lost. It will also pay up to $500,000 for nonresidential buildings and $500,000 for their contents.

The premiums average around $400 a year for $100,000 of coverage -- higher in very flood-prone areas. That's quite reasonable, considering the risks.

Many mortgage lenders require it, at least for property located within a flood-prone area. Fannie Mae, for example, requires coverage of 80 percent of the replacement cost of the home, or the program limit of $250,000, whichever is less.

According to a recent study by the Center on Federal Financial Institutions (COFFI), a nonprofit think tank, the federal flood insurance program has about 4.6 million policies in place, covering more than $743 billion in assets. Annual premium collections run about $2 billion. * * *

Hunter said this will almost certainly be the first disaster in which flood claims exceed those for wind, which are typically paid by private insurers or state-run risk pools.

"It's going to be at least $10 billion," Hunter said. "They are going to have to go for an appropriation. When I was running it, we always knew we might have to go for an appropriation" if something bad enough happened. The program is much larger now, he noted.

Hunter said that "there's going to be an interesting question about claims adjusters" because of who pays for what damage. The federal program uses private insurers and their adjusters to evaluate claims, and "company X may say, 'I can't tell if this is flood or wind, so it looks like flood because they pay it and we don't,' " Hunter said. * * *

Many critics would prefer higher premiums. That's an easier sell when the insurance buyers are thought of as rich people who have built in a risky location to get a better view. But New Orleans is different "because many of the people most exposed there are poor," Elliott said. Also, New Orleans is an old city where it is hard to argue that people built in a flood plain because they could get cheap insurance.

But good policy or bad, property owners who face any risk of flood should look into the program. There are some restrictions on it, meant to encourage communities to take steps to ease flood risks, but coverage is available in most places.

Hunter said many communities have maps of their flood prone areas, and some have even put those maps online. The Federal Emergency Management Agency, which administers the program, also has maps on its Web site, though they aren't easy to understand.

The maps, if you can figure them out, are a good guide to gauging your risk. Also, Hunter noted, premiums drop substantially for property located outside flood-prone areas. Since floods sometimes exceed these boundaries, those living outside a flood-prone area may want to go ahead and buy the coverage.

Here is a link to FEMA's National Flood Insurance Program page.

"A call to look again at coastal development"
is the headline to this story today in the Baltimore Sun. Some quotes:
Taxpayers subsidize coastal development in a variety of ways: through federal and state funding of shore erosion control projects; relief payments to rebuild storm-damaged roads, bridges and utilities; and providing government-managed flood insurance to help property owners repair and rebuild from wind and water damage. * * *

Flood insurance. When properties are damaged or destroyed by storms, flood insurance also helps sustain coastal communities by providing compensation that standard property insurance will not.

Administered by the federal government, flood insurance is supposed to generate enough revenue through premiums paid by property owners to cover all damage claims. But after last year's record storm damage in Florida and neighboring states, FEMA, which runs the flood insurance program, had to borrow to cover all the claims, says Larson, the flood plains management official.

Now, with a significant share of the 4.6 million insured properties nationwide in the area hit by Katrina, claims are likely to be "well into the billions," Larson predicts, putting a further strain on the program.

If an insured property is damaged or destroyed, FEMA requires that it be upgraded or rebuilt to withstand subsequent storm damage - elevating homes on stilts, for instance, to keep them out of floodwater. Those requirements are based on maps and projections of likely flooding and wind damage.

But the devastation wrought by Katrina and other storms has raised questions about the reliability of those flood hazard maps and of the building requirements.

"There's no question but that we could build safer than what we were," Larson says. If houses built to FEMA standards were destroyed, he adds, "we've got to ask ourselves, are we really letting people build and letting them think they're safe, and yet [their homes] can't withstand?"

Building requirements. Some states, such as hurricane-prone Florida, have adopted more stringent building requirements, mainly aimed at ensuring that a structure can withstand high winds.

"We can build things to withstand this, if you want to pay the money," says Stephen P. Leatherman, director of the International Hurricane Center and Laboratory for Coastal Research at Florida International University. Florida's stricter building codes, adopted after Hurricane Andrew overwhelmed the state in 1992, have helped newer homes survive more recent storms.

"The truth of the matter is they're going to rebuild, but FEMA's going to have to require higher and better standards down there," Leatherman says, though he points out that storm-proofing in flood-prone Louisiana might call for different measures from those in Florida.

Some environmental scientists contend that coastal communities would have fared better last week if Congress had moved more quickly to fund a plan to restore the state's rapidly disappearing wetlands and build up sandy barrier islands offshore - two natural buffers against storms.

Posted by Marcia Oddi on Sunday, September 04, 2005
Posted to Environment | General Law Related

Law - The death of the Chief Justice

The Chief Justice of the United States, William H. Rehnquist, died last evening.

For links to media coverage, see How Appealing.

SCOTUSblog has several entries on the impact of Rehnquist's death on the eve of the Roberts confirmation hearings.

Posted by Marcia Oddi on Sunday, September 04, 2005
Posted to General Law Related

Saturday, September 03, 2005

Law - Watch Roberts hearings via C-Span next week or listen to them at your leisure via podcasts

Watch the John Roberts hearings via C-Span next week or listen to them at your leisure via podcasts. Podcasts will be my choice.

Past Hearings. C-Span today and tomorrow is broadcasting via C-Span 3 (accessible only online, I believe) the earlier confirmation hearings. I didn't see Judge Bork's at the time (1987), so I have been watching it with interest this afternoon. I am planning to watch then-Judge, now Justice, Thomas' hearings from 1991, first and second rounds. I don't see Sanda Day O'Connor listed - I'd like to see it.* Many I will pass on, such as Justice Kennedy's. Check the C-Span schedule here -- right now the Thomas hearings begin at 11:45 AM (EST) tomorrow, but C-Span schedules are often off, or changed.

Upcoming Hearings via C-Span. From C-Span:

Roberts Hearings to Begin Tuesday. The Senate Judiciary Cmte. begins Supreme Court confirmation hearings for John Roberts on Tuesday. They will air for four days LIVE on C-SPAN3 & C-SPAN Radio, and will stream LIVE on C-SPAN.org.

Roberts Highlights: C-SPAN2 at 9pm ET. These confirmation hearings for will also reair during primetime each day they are held. They will start at 9pm ET on C-SPAN2, and as always, will be concurrently available through streaming video available on this website.

Here is the Senate schedule for Tuesday and Wednesday.

Hearings via Podcasts. A Catholic organization, Fidelis, will be making podcasts of the Roberts hearings available. These are essentially MP3 files you can listen to on your computer or iPod, or save to CD-ROM. See this announcement.

For automatic downloading via iTunes, you can subscribe to the Fidelis Podcast Network here. However, I don't know if this gets you just the Roberts hearings, or if you also receive other Fidelis broadcasts until you unsubscribe.
_____
*Justice O'Connor's confirmation may have been pre-C-Span. I believe it was 24 years ago. [Yes, 1981. Here is the list, Scalia followed O'Connor in 1986. His hearing, along with Rehnquist's confirmation hearing to be Chief Justice, are the earliest of the C-Span confirmation hearing broadcasts.]

Posted by Marcia Oddi on Saturday, September 03, 2005
Posted to General Law Related

Law - The issue on many coastlines: public or private?

The ILB has posted several entries on the rights of access to the Great Lakes beaches, including this one from 7/31/05. Now Tresa Baldas of The National Law Journal has written a useful article that surveys not only the Great Lakes, but the ocean shorelines. It begins:

The right to enjoy the beach has given rise to a tidal wave of litigation in recent years, with public-access advocates and private property owners butting heads over who owns the right to stroll, swim or fish along America's coastline.

Lately it appears that public beach-goers are winning that legal fight as judges are drawing imaginary lines in the sand dictating which parts of a beach are private and which are public.

In Michigan, the state Supreme Court recently ruled that the public has the right to stroll along all 3,200 miles of Great Lakes shoreline property, even if adjacent to private land.

In New Jersey, just three days before the Michigan ruling, the state Supreme Court ruled that private beach owners must make some of the dry sand above the high-tide line available to the public, and ordered a private beach club to give nonmembers full access to the beach for $3 a day, or $55 a season.

In California, the state's Coastal Commission on Aug. 12 banned the use of no-trespassing signs and motorized beach patrols along Broad Beach in Malibu, where public-access suits are ongoing.

Also in California, in a closely watched beach-access lawsuit, billionaire David Geffen settled a three-year-old lawsuit in April when he agreed to allow public access to the beach in front of his Malibu estate.

Posted by Marcia Oddi on Saturday, September 03, 2005
Posted to General Law Related

Law - Popcorn worker gets $15 million

"Popcorn worker gets $15 million" is the headline to this story today in the Chicago Tribune. Some quotes:

KANSAS CITY, Mo. -- A jury on Friday awarded a former popcorn-plant worker $15 million after finding that his exposure to butter-flavoring fumes led to his severe respiratory problems.

The verdict brings to nearly $53 million the total amount awarded in the last two years against the makers of the popcorn flavoring, International Flavors & Fragrances Inc. of New York and a subsidiary, Bush Boake Allen Inc.

Four other plaintiffs reached confidential settlements with the defendants last year. The plant where the plaintiffs worked, the Gilster-Mary Lee Corp. microwave popcorn factory in Jasper, Mo., has paid the employees' worker's compensation and has not been named as a defendant in any of the actions.

Posted by Marcia Oddi on Saturday, September 03, 2005
Posted to General Law Related

Ind. Gov't. - State readies tax amnesty program

"State readies tax amnesty program: Those who owe get 60 days to pay up" is the headline to this Lesley Stedman Weidenbener story today in the Louisville Courier Journal. It beings:

Individuals and companies who have fallen behind on their taxes or never filed a return can get right with the state during a 60-day tax amnesty that begins Sept. 15.

The amnesty means Hoosiers — and out-of-state taxpayers — can catch up on income, sales, withholding and other state-imposed taxes without the burden of interest or penalties.

But those who don't take advantage will face double the penalties on Nov. 16, the day after the amnesty ends.

Posted by Marcia Oddi on Saturday, September 03, 2005
Posted to Indiana Government

Env. & Econ. Dev. - Several stories today on environment, land use, and economic development issues

"Residents, officials concerned abandoned landfill poses danger to well water" is the headline to this story today in the Munster (NW Indiana) Times, about the abandoned Feddeler landfill west of Lowell. The story reports that at a Q&A session Friday:

Bruce Palin, who heads the office of land quality for IDEM, answered questions, while Langbehn, director of the Lake County Solid Waste Management District, laid out the facts and options.

[Jeff] Langbehn told those attending that they need to let go of the notion of getting money from Bob Feddeler, who operated the landfill as R & M Enterprises until declaring bankruptcy, to remediate the landfill. "We can't pierce the corporate veil," he said.

Many feel IDEM bears responsibility in its failure to adequately enforce compliance with state environmental rules and regulations on R & M, but Langbehn said there are no deep, state pockets to dig into.

Instead, Allied Waste, which operates the construction and demolition landfill south of the Feddeler site wants to expand and reroute Bruce Ditch, a legal drain. To ease the way for the approvals for the expansion and rerouting, Allied officials have said they would exhume the contents of the Feddeler landfill and transport them to the Allied property where they would be enclosed in a separate cell and sealed off.

A number of earlier ILB entries may be accessed by typing "Feddeler" in the search box in the right column.

"Goshen industrial growth is putting some homeowners on edge" is the headline to this lengthy story by Thomas Bona in the Elkhart Truth. Some quotes:

Looking at the farmland north of her house, Jane Beluschak sees a new crop coming her way.

Factories are popping up faster and faster south of the city, replacing corn and soybeans with car parts and RVs.

They bring jobs and money into the area, but they also bring noise, smells and traffic. And they're reaching rows of homes that have long stood on county roads.

"It's just so unfortunate because we did not invite manufacturers in, they encroached on us and it just can't be stopped," said Beluschak, who's lived on C.R. 40 since 1972. "We were here first, and I hate to sound like an old lady, but we bought here thinking we would stay here."

Beluschak and her neighbors worry they'll someday be surrounded by factories. They have good reason to think that, say developers.

"You've got the industrial park to the north, you've got the airport to the south, is that a good place to put residential? Not really, that's just bad zoning," said Bill Kuhns, industrial broker for FM Stone Commercial. "Previous boards did not have the foresight to restrict that out of there."

Kuhns is trying to sell 60 acres of farmland north of C.R. 40 owned by Larry Penrod. If the land gets rezoned, it would be the southernmost manufacturing area around Goshen.

The rezoning got a favorable recommendation from the Elkhart County Plan Commission, but not without a lot of questions from neighbors and restrictions by planners.

"Unless there's a concerted effort to move the residential from that area, we are going to be needing to protect those residential areas for the next 20, 30 years," said Duane Burrow, senior planner.

That means undeveloped buffers between homes and factories, as well as green mounds and lines of trees to block sound and light.

Burrow said existing and future factories also need to change how they operate -- turning down outside speakers and keeping trash collection to the middle of the day instead of early in the morning.

Another Elkhart Truth story cocerns the Elkhart Public Library's efforts to reuse a brownfields site. The story is headlined: "Elkhart library waits for word on foundry site." Some quotes:
The Elkhart Public Library had hoped to close on the 71/2 acres it wants to purchase along Elkhart Avenue two weeks ago.

Instead, it will take another two weeks to determine if the former Elkhart Foundry property it wants to build on is safe enough to house a high-traffic public facility.

The property is at 318 S. Elkhart Ave. and has frontage along the Elkhart River.

In June, the library's board of trustees approved the purchase of the former foundry site to construct a new library to replace the downtown facility at 300 S. Second St. An environmental study conducted in 2002 had determined the site was clean.

However, that study was based on the site housing a factory, said Connie Jo Ozinga, library director. "Environmental studies have different levels," she explained. "The previous study was a level 1. The environmental standards for a public facility should be higher."

The library board voted Wednesday to pay for a more in-depth study, at a cost of about $16,000.

When the foundry vacated the property, it left everything as it was, Ozinga reported. That included underground drums. "We have to find out what's in them," she said.

"Someone needs to take responsibility for the drums left behind," she continued. "We're hoping that won't be us."

Ozinga said the land purchase process has been a complicated and frustrating experience, noting she had hoped to have the sale completed last month. Now she is just shooting for the end of the year.

The library is negotiating for the property with the Puritan Finance Corp., a Chicago lender that foreclosed on the property. The Patterson family, which owned the foundry, owes $1.2 million, according to court records. The library wants to purchase the property for $900,000 from the receiver.

Posted by Marcia Oddi on Saturday, September 03, 2005
Posted to Environment | Indiana economic development

Friday, September 02, 2005

Ind. Decisions - More on "Suspended player seeks to re-enroll at Purdue" [Updated]

Updating this entry from last Tuesday, Aug. 30, the Indianapolis Star has just posted this report by Michael Pointer on its website:

Judge keeps Boiler on sideline

Uche Nwaneri’s attempts to play for the Purdue football team this season took a crippling hit today.

Tippecanoe County Superior Court judge Don Johnson declined to issue a preliminary injunction that would have allowed Nwaneri – who started all 12 games at left guard for the Boilermakers last season – to play while his suit against university officials proceeded.

Nwaneri filed the suit after he was suspended for the fall semester following a July altercation with former teammate Ryan Noblet, who has since transferred to the University of Arkansas. * * *

“It’s a huge disappointment for Uche," said Courtney A. Justice, Nwaneri’s attorney. Justice said he and Nwaneri were still discussing whether to continue with the suit, but he conceded it is unlikely Nwaneri will play for the Boilers this season. * * *

Johnson wrote that Nwaneri did not prove he had a reasonable chance at trial of proving his constitutional rights to due process were violated.

“It remains the role of the university to set policies and procedures for resolving these issues in an academic setting," Johnson wrote. “It is not for the court to substitute its own judgment for the judgment of university administration unless concerns rise to a constitutional level."

Nwaneri has enrolled at Ivy Tech Community College in Lafayette. Purdue coach Joe Tiller said earlier this week he will be allowed to return to the team and be placed back on scholarship when he returns to the university in January. Nwaneri will have one year of eligibility remaining.

“Obviously, our student-athlete has had full due process in this situation," Purdue spokeswoman Jeanne Norberg said. “The university hopes he will be returning to class next semester."

No criminal charges have been filed in the case. Tippecanoe Country prosecutor Jerry Bean said today he has asked the Purdue police to review additional information and hopes to make a decision next week.

[Update 9/3/05] Today's Lafayee Jounral & Courier reports, in a story headlined: "Judge backs Purdue: Football player sought injunction; suspension stands", that:
In a 17-page ruling Friday, Tippecanoe Superior Court 1 Judge Don Johnson denied an injunction request that would have allowed Uche Nwaneri to return to Purdue University and rejoin the football team. * * *

Johnson listened to 41/2 hours of testimony Tuesday on Nwaneri's motion for a preliminary injunction that would have lifted the suspension.

In his ruling, the judge concluded Nwaneri had failed to prove that denial of his motion for a preliminary injunction would cause him irreparable harm. * * *

[I]n his ruling, Johnson said the university "has followed its procedure in a fair manner." And while Nwaneri testified that he was acting in self-defense, Johnson wrote:

"It is sometimes very difficult for a young athlete to make the transition from the football field where one is trained to 'never back down from a confrontation' and yet be prepared to resolve differences off the field in a harmonious manner.

"However, it remains the role of the University to set policies and procedures for resolving these issues in an academic setting. It is not for the Court to substitute its own judgment for the judgment of University Administration unless concerns rise to a Constitutional level." * * *

There still remains the possibility that Tippecanoe County prosecutor Jerry Bean could file charges against Nwaneri. Bean had hoped to make that decision this week.

"I've asked the Purdue police to do a couple more things for me," Bean said Friday. "Once that's done we'll have a decision. I'm hopeful it will be maybe mid to late next week."

Posted by Marcia Oddi on Friday, September 02, 2005
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - No transfer list for week ending September 2, 2005

There is no transfer list this week.

Posted by Marcia Oddi on Friday, September 02, 2005
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending September 2, 2005

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for week ending September 2, 2005. There are 41 cases listed this week.

For earlier weekly NFP lists, (going back to the week ending August 19, 2005), check "NFP Lists" under "Categories" in the right column.

Posted by Marcia Oddi on Friday, September 02, 2005
Posted to NFP Lists

Ind. Gov't. - Kentucky can't track contract work

The Louisville Courier Journal has a story today headlined: "Audit: State can't track contract work - Changes will help, Finance Cabinet says." Some quotes:

FRANKFORT, Ky. -- The state cannot determine how many workers it has under contract or the time they put in, according to a report issued yesterday by the state auditor's office.

"A lack of information makes it impossible to determine whether hiring additional state employees or contracting for services is the most cost-effective way to fulfill state services," Auditor Crit Luallen said in a statement accompanying the report.

"Outsourcing state work has often been presented as a way to save the state money," Luallen wrote. "While that may be the situation, the current method of contracting for workers does not allow the state to conduct a case-by-case cost-benefit analysis to be sure." * * *

The report said Kentucky spent more than $655 million on 2,633 contracts for services in the fiscal year that ended June 30, 2004. The report said the numbers had to be estimated because some contracts were improperly classified and because many service contracts are bundled with commodity contracts.

The state also lacks a clear process for determining whether service contract workers should be classified as employees, the audit concluded.

The audit recommended that state agencies use designations that will allow tracking the number of contract employees.

Those figures should then be compared to the cost of completing a service with state employees to determine the most cost-effective alternative, the report concluded.

What about Indiana? A list of "State of Indiana Active and Approved Contracts as of 9/2/05" is available here, at the Department of Administration site. You are given the option to view or download an HTML or Excel version. Be forewarned that these files are very large, the HTML version is nearly 8 MG. This is important information, but with very little effort, the State could make the HTML table sortable and searchable, which would make it useful information. Of course, that would be just the start.

Posted by Marcia Oddi on Friday, September 02, 2005
Posted to Indiana Government

Law - California Senate votes to let gays marry

"Calif. Senate Passes Gay Marriage Bill: Move Is the First by a State Legislative Body Without a Court Order" is the headline to this story today in the Washington Post. Some quotes:

SACRAMENTO, Sept. 1 -- The California Senate voted Thursday to allow gay couples to wed, becoming the first legislative body in the nation to approve same-sex marriage without a court order.

The bill would recast the state's legal definition of marriage as a union between two people rather than one between a man and a woman.

Yet it faces an uncertain future: The California Assembly narrowly rejected similar legislation in June, and Gov. Arnold Schwarzenegger (R) has given mixed or ambiguous responses on whether he would support or veto such a bill.

Still, its passage, on a vote of 21 to 15, was hailed by advocates as a breakthrough for gay rights.

"It will totally take away the argument that it is just 'activist judges' who are finding for marriage nondiscrimination," said Geoff Kors, the head of Equality California. "It's the people's representatives in the largest state in the nation doing this."

The LA Times reports:
SACRAMENTO — The California Senate voted Thursday to allow homosexuals to marry, becoming the first legislative body in the United States to embrace the idea and setting off a scramble for three votes needed for passage in the Assembly.

Almost completely along party lines, the Democrat-controlled Senate approved the Religious Freedom and Civil Marriage Protection Act, which would allow marriage between two people rather than only between a man and a woman.

The measure passed by the minimum number of necessary votes, 21-15, after a sometimes personal debate in which both sides acknowledged the momentous nature of the vote.

Sen. Sheila Kuehl (D-Santa Monica), one of six openly gay legislators in Sacramento, said that allowing homosexuals to marry "unchains a community that has participated in this state since its inception."

With only a week left before lawmakers adjourn for the year, the measure faces a tough fight in the Assembly, which defeated it in June. Signaling a likely veto if it does pass, Gov. Arnold Schwarzenegger's spokeswoman said he preferred to let judges sort out the legality of gay marriage; such a case is moving toward the state Supreme Court.

Re the court case, see this August 10, 2005 story from SFGate, com. Here is Judge Kramer's California Superior Court of San Franscisco County 3/14/05 decision that is "moving toward the state Supreme Court." Here is the related 3/16/05 ILB entry.

Posted by Marcia Oddi on Friday, September 02, 2005
Posted to General Law Related

Gov't. - Katrina's Wake: New Orlean's Mayor, Governors

Yesterday the Washington Post has a feature on Louisiana Gov. Kathleen Babineaux Blanco (D) and Mississippi Gov. Haley Barbour (R) -- see ILB entry here. Today New Orleans' Mayor Nagin is the focus of this interesting piece.

Another good feature by the Post today is headlined: "Rebuilding, Without Financial Records."

The Wall Street Journal has this free feature today: "United by Katrina,
Divided by Assessment: As Mississippi Gov. Barbour Praises Federal Response, Louisiana's Blanco Seeks More Aid."
A quote:

The stature of state or local officials can soar from effective handling of a massive crisis, as evident from the experience of New York Mayor Rudolph Giuliani after the Sept. 11, 2001, attacks. But no fellow governor would trade places with Ms. Blanco or Mr. Barbour.

The scale of their governing challenges is "incomprehensible," says Republican Gov. Mark Sanford of South Carolina. "They are both good at processing that amount of information. But it is unimaginable how much information is coming at them. When you are dealing with true life-and-death situations, just endurance and sleep deprivation become issues."

Posted by Marcia Oddi on Friday, September 02, 2005
Posted to General News

Environment - Several stories today

"Citizens speak up about factory farm: Public voices concerns at hearing Wednesday" is the headline to this story today in the Richmond Palladium-Item. Some quotes:


The Wayne County Commissioners need more time to consider the confined feeding operation ordinance that came before them Wednesday.

The board listened to the concerns of citizens in a public hearing for an hour at its weekly meeting. Last month the Wayne County Advisory Plan Commission set forth a list a potential regulations for proposed confined feeding operations for the commissioners to consider.

Wayne County Planning and Zoning Superintendent Steve Higinbotham said Wednesday the charge of the commission was to incorporate into the zoning code an opportunity for public discussion when a confined animal feeding operation is proposed in Wayne County.

The majority of the 15 people who attended the hearing were worried about the environmental effects of a CAFO could have on the watershed, air quality and more. * * *

Commissioners have 90 days since the plan commission met on July 21 to approve, deny or ignore its recommendation. If they don't approve it within 90 days, it becomes law. If they reject it, the ordinance returns to the plan commission.

Commissioners didn't need to hold the public hearing Wednesday.

"The commissioners are going well beyond what the law requires," Wayne County Attorney Ron Cross said.

Former Wayne County hog farmer Sara Davis disagrees with the proposed regulations and said she was disappointed that more farmers didn't show up at the hearing. Davis has the farm at 11764 N. Centerville Road in Williamsburg for sale to Natural Pork Production II, a CAFO company specializing in large pig farms. Any ordinance the county passes would not immediately affect this proposed CAFO because it will be grandfathered in under current zoning laws.

She said she is uncomfortable with local officials making guidelines for CAFOs that are stricter than state guidelines, saying it could curb economic development. Davis wants Wayne County's regulations to be based on science.

"EPA settlement cuts Cargill air pollution in Hammond" is the headline to this story in today's Gary Post-Tribune. Some quotes:

Cargill Inc., an international grain company, has agreed to reduce harmful air emissions at 24 plants in the United States, including one in Hammond.

The company and the U.S. Environmental Protection Agency announced the agreement Thursday, when a consent decree was filed in the federal court in Minneapolis.

Cargill will pay a $1.6 million cash penalty.

It also will invest $3.5 million for environmental equipment and improvements at its plants in the next three to five years.

Those plants’ emissions will be cut by about 40,000 tons a year as a result, the company said.

Several years ago, the EPA discovered that grain processing plants were producing more volatile organic compounds (VOCs) and other smog-creating pollution than previously realized.

In addition to creating smog, or ground-level ozone, volatile organic compounds can cause serious health problems such as cancer, the EPA says.

The settlement will reduce Cargill’s VOC emissions by about 10,000 tons, EPA scientist Sara Dauk said, and the Hammond plant will account for a significant part — more than one-seventh — of that.

The Hammond plant will reduce its VOC emissions by about 95 percent, Dauk said. It also will cut its nitrogen oxide and carbon monoxide releases.

Because Lake County’s air has failed to meet the EPA’s ozone standards, industries in the county have tighter restrictions on VOC emissions.

Posted by Marcia Oddi on Friday, September 02, 2005
Posted to Environment

Ind. Courts - Judge clears away old cases

"Judge Thode clears away old cases -- PORTER COUNTY COURTS: Deadline forces attorneys to close lingering criminal files," is the headline to this story today by Bob Kasarda in the Munster (NW Indiana) Times. Some quotes:

PORTAGE | A unique approach by Porter Superior Judge Jeffrey Thode to crack down on old cases lingering in his courtroom has paid off.

Thode set the cases for trial this week in an effort to encourage attorneys to either settle or prepare for a day in court.

The effort was initiated last spring and was successful in clearing away about 20 percent of the cases during the summer, he said.

The remaining 80 or so cases were scheduled for trial this week and all but about six have been brought to a close, Thode said. A few of the cases were dismissed and others were settled with plea agreements. * * *

Thode said he clears away the cases every couple of years when he notices the older ones beginning to accumulate. The approach is particularly effective at forcing a conclusion in cases that are stalled because one side has a weaker position, he has said.

Posted by Marcia Oddi on Friday, September 02, 2005
Posted to Indiana Courts

Ind. Law - 1,500 complain of gas gouging; no action taken

"1,500 complain of gas gouging; no action taken" is the headline to an AP story that appears today in the Louisville Courier Journal. Some quotes:

Angry Indiana gasoline consumers have sent about 1,500 price-gouging complaints over two days to the state attorney general's office, but none of them will make any difference until Gov. Mitch Daniels declares an emergency.

That option hasn't been discussed yet by the governor's staff, his press secretary said.

The price shock from the disruption to Gulf Coast refineries caused by Hurricane Katrina has prompted more than 1,000 telephone calls to a state call center in Bloomington and about 400 e-mails to the attorney general's office complaining about price gouging at fuel pumps, said Staci Schneider said.

The complaint volume of nearly 750 per day compares with about 50 on Monday, before the Katrina fuel shock sent prices shooting up to $3 per gallon and higher across the state, she said.

However, there's nothing that Attorney General Steve Carter can do with the complaints until Daniels declares a state of emergency or a state of energy emergency -- a necessary step before Indiana's 2002 fuel price anti-gouging law kicks in, Schneider said.

The law allows the attorney general to investigate gouging complaints and seek restitution, injunctions and civil penalties.

"Those (complaints) provide the attorney general with a strong database of information if the statute on price gouging is triggered," Schneider said.

Daniels' press secretary, Jane Jankowski, said such a declaration has not been discussed among the governor's staff.

Here is the statute, IC 4-6-9.1, Price Gouging in Declared Emergencies.

Posted by Marcia Oddi on Friday, September 02, 2005
Posted to Indiana Law

Not Law but History - Especially to those of us who shopped there

"Field's Loop store closer to landmark status: City Council urged to make designation" reads the headline to this story today in the Chicago Tribune. It begins:

Whatever the new owners decide to call it, "Marshall Field and Company" may still be emblazoned on the outside of the historic department store, as the city moves closer to landmarking the building in the heart of the Loop.

The Commission on Chicago Landmarks formally recommended Thursday that the City Council bestow landmark status to the structure at State and Washington Streets.

If approved by the City Council, the landmark designation would give the city legal power to restrict building changes, including tinkering with the large nameplates on its exterior.

Ever since Cincinnati-based Federated Department Stores Inc. bought Marshall Field's latest parent, May Department Stores Co., it has considered renaming all Field stores as Macy's, in its efforts to create a national brand. Federated spokesman Jim Sluzewski said the retail giant, which finalized its purchase Tuesday, would decide by year's end whether to keep or abandon the Field name.

Preservationists and politicians say a name change would strip away a piece of the city's identity, and many hope a landmark designation will preserve the name of the State Street shopping icon.

"It's like changing the name of the Eiffel Tower, honestly," said Preservation Chicago president Jonathan Fine. "I don't think Chicagoans will ever accept it as a Macy's. To us that's somebody who sponsors a parade in New York."

"The name Marshall Field is so synonymous with Chicago history," said Ald. Burton Natarus (42nd), who pushed for the designation of the department store, which lies in his ward.

In the 1890s, retail pioneer Marshall Field set out to create the finest department store in the world and commissioned the architectural firm of renowned architect Daniel H. Burhnam to design a retail palace.

The oldest section of the complex, the nine-story stone and terra-cotta clad Marshall Field Annex at the corner of Washington Street and Wabash Avenue , was constructed in 1892. The rest of the building, built in stages between 1902 and 1914, is clad in gray granite and rises 13 stories.

In 1907, a year after Field's death, the overall floor space of the store measured nearly 35 acres and was the world's largest department store.

The store was rated red in the Chicago Historic Resources Survey, the highest category among structures considered by the city to be architecturally or historically significant. And last year, the landmarks commission gave it preliminary landmark status.

Describing it as the "grand dame" of department stores, the commission recommends protecting the building's exterior and key interior features, including the two bronze "Great Clocks" on State Street at Randolph and Washington Streets which were immortalized in 1945 by illustrator Norman Rockwell on the cover of the Saturday Evening Post.

The designation would protect portions of the first-floor sales area, including its gilded pillars, the complex's white marble staircase and landing, cast-iron staircase and its 13-story atrium. Also recommend for protection is the six-story atrium on the south State Street section, including its Tiffany glass mosaic dome and the seventh-floor walnut-paneled dining room known as the Walnut Room.

Posted by Marcia Oddi on Friday, September 02, 2005
Posted to General News

Ind. Law - Westfield project OK'd after court ruling

A story by James A. Gillaspy in the Indianapolis Star today is headlined: "Planners approve Kroger location: Decision follows a judge's ruling that council was wrong to cancel previous approval." Some quotes:

Westfield planners reluctantly approved plans for a Kroger grocery and retail site after a judge sided with a developer who claimed the town could not legally block his plans.

The decision in a lawsuit filed by Flynn & Zinkan Realty Co. ordered the Town Council to approve Springmill Commons at 161st Street and Spring Mill Road.

The Aug. 17 ruling by Hamilton Superior Court Judge William J. Hughes gave the town 30 days to comply. The Westfield-Washington Township Advisory Plan Commission, which agreed to heed any judgment, gave its approval Wednesday night.

"There wasn't anything else we could do but follow the court's ruling," said Town Council member Bob Smith, a Plan Commission member who voted with other members to approve the plan. * * *

Flynn & Zinkan sued in November after Town Council members voted to withdraw previous approval of the Kroger and retail development by reversing a rezoning ordinance they had passed to allow it.

"Under Indiana law, once a property has been rezoned, then you have legally protected vested rights to develop," developer Steve Zinkan claimed then.

The council voted in October 2003 to rezone 17 acres on the intersection's northeast corner in Washington Township from agricultural/residential to general business.

A year later, after angry township residents invited the city of Carmel to consider annexing 7.5 square miles of unincorporated territory in the area, the council passed an ordinance that restored the original zoning. * * *

Hughes set a hearing for Oct. 3 to determine whether Flynn & Zinkan and co-plaintiff Commercial Development Properties may be entitled to compensation for damages and costs of prosecution.

Posted by Marcia Oddi on Friday, September 02, 2005
Posted to Indiana Law

Thursday, September 01, 2005

Ind. LGov't. - Inspector General's proposed Code of Ethics for conduct of state business posted

The September Indiana Register, out this afternoon, contains the Indiana Inspector General's proposed Indiana Code of Ethics for Conduct of State Business. Access it here.

Under IC 4-22-2-24 [the general state agency rulemakng requirements], notice is given that on September 22, 2005 at 9:00 a.m., at the Indiana Government Center-South, Indianapolis, Indiana, the Office of the Inspector General will hold a public hearing on proposed new rules relating to the code of ethics for the conduct of state business.

The Office of the Inspector General is required to adopt these rules by the new law creating the IG office, IC 4-2-7.

The Inspector General's proposal published today would add a new 42 IAC 1-1 to the Indiana Administrative Code (IAC).

Meanwhile, the State Ethics and Conflicts of Interest law, IC 4-2-6, as revised by the 2005 General Assembly, is also now available online as part of the updated Indiana Code.

So are the State Ethics Commision rules, titled the Indiana Code of Ethics for the Conduct of State Business, at 40 IAC 2-1. This latest version includes the final rule changes of the State Ethics Commission published in the September 1, 2005 Indiana Register.

One question I had. The new rules at 40 IAC (State Ethics Commission) and 42 IAC (State Inspector General) are not the same. Why, then, are they both titled "the Indiana code of ethics for the conduct of state business"? Might not others also be confused by this?

Posted by Marcia Oddi on Thursday, September 01, 2005
Posted to Indiana Government

Ind. Law - City's corporate attorney to resign

"City's corporate attorney to resign" is the headline to a story by Jason Miller in yesterday's Michigan City News-Dispatch. Some quotes:

Larry Allen will resign his position as Michigan City's corporate attorney within days, Mayor Chuck Oberlie said Tuesday, as Allen continues to deal with the July suspension of his Indiana law license.

"We had a conversation and some options were made available to him," Oberlie said. "He elected to step away from the position at the end of the month."

Allen's license was suspended in July by the Indiana Supreme Court Disciplinary Commission after he failed to respond to a grievance filed against him.

According to a commission representative, Allen - who was named city attorney when Robert Beckman left the post after winning election as LaPorte County Prosecutor in 1998 - still hadn't responded as of Tuesday.

A response to the grievance would have prompted reinstatement of Allen's license while the grievance was studied.

Allen hasn't responded to News-Dispatch inquiries since he was made aware of the suspension in early August, and hasn't met much with Oberlie since the suspension.

Oberlie said he didn't know the specifics of the grievance filed against Allen. Representatives from the disciplinary committee said the information was private and couldn't be released. * * *

A disciplinary commission representative said if Allen doesn't respond by a certain date, his license would be suspended indefinitely and he would need to apply for reinstatement to get his license back.

The Supreme Court's suspension order, In re Larry J. Allen, Jr., is available here.

Posted by Marcia Oddi on Thursday, September 01, 2005
Posted to Indiana Law

Environment - More on the ag-park concept

The Indiana State Department of Agriculture (ISDA) has issued a press release today on ag-parks. Some quotes:

“An agricultural park is a place where Indiana’s corn, soybeans and livestock can be turned into ethanol, soybiodiesel, energy, food and fertilizer,” said Indiana Agriculture Director Andy Miller. “Grouping these agricultural businesses together makes sense in terms of land-use planning, economic development and job creation. There are also environmental benefits because each agribusiness helps the next by recycling what is ‘waste’ to one facility into a usable component for the next.”

An agricultural park is land that is pre-zoned and dedicated to agricultural businesses that can combine their inputs and outputs toward various value-added products – maximizing the benefit to all. For example, by-products of an ethanol plant can be used as feed for livestock in an adjacent concentrated livestock feeding facility. The livestock facility can pump manure directly back to the ethanol plant to power anaerobic digesters, creating electricity for the plant’s engines. By-products from the digester can fertilize nearby fields for crop production. Each piece is valuable because it is a component of the next process.

Posted by Marcia Oddi on Thursday, September 01, 2005
Posted to Environment | Indiana Government | Indiana economic development

Ind. Courts - Two stories on Elkhart Superior Court judges

The South Bend Tribune reports today in a brief story that:

Elkhart Superior Court 2 Judge Stephen Platt is in Elkhart General Hospital after suffering a stroke Tuesday night or Wednesday morning, his office said. * * * Platt started his judicial career in Small Claims Court in 1979 and was appointed to Superior Court 2 by Gov. Robert Orr in 1982.
[More] Here is a more detailed story on Judge Platt, from today's Elkhart Truth.

The South Bend Tribune also reports, in a story by Martin DeAgostino, that:

The Indiana Supreme Court could act as early as next week to suspend Elkhart Superior Court 1 Judge L. Benjamin Pfaff, according to the office of Chief Justice Randall T. Shepard. * * * According to an admission and disciplinary rule that governs judges and lawyers in Indiana, the commission's recommendation "shall" trigger a judicial officer's suspension, with pay, as long as the matter is pending before the Supreme Court. * * * Remondini said suspension or removal from office would lead to the appointment of a special judge or senior judge to manage Superior Court 1, which handles a wide range of felony cases.

Posted by Marcia Oddi on Thursday, September 01, 2005
Posted to Indiana Courts

Environment - "Ag-park decision might take time"

"Ag-park decision might take time" is the headline to this Seth Slabaugh story in today's Muncie Star-Press. Some quotes:

MUNCIE - The chairman of the city-county planning commission believes the group won't be ready at its meeting tonight to act on the proposed Shideler agricultural bio-enterprise park.

"My thought process is, we need more time," said Tom Jarvis, chairman of the commission. "I'd like to see a committee formed. There's a lot of misinformation out there, and it would be in the best interest of everyone to have the facts before a decision is made for or against."

Jarvis expects the city hall auditorium to be crowded when the commission meets at 6:30 p.m. to consider a petition to rezone 806 acres surrounding the community of Shideler to create the ag park. There are three other re-zoning cases on the agenda before the ag park will be discussed.

One of the petitioners, farmer Paul Russell, is comparing the nation's ethanol and soy biodiesel boom to the 19th century Gas Boom in East Central Indiana. * * *

"Our new natural (renewable) energy commodity could be corn and soybeans, grown in abundance each year," Russell said in a letter to the planning commission. "We can't afford to turn away the next potential Ball family."

Opponents say the ag park would attract concentrated animal feeding operations (CAFOs) and ethanol and soy biodiesel production facilities that would transform the area within a five-mile radius of Shideler into an uninhabitable "dead zone." They say the ag park could be life-threatening to students attending the nearby Delta middle and high schools.

One misconception, Jarvis said, is that the ag park will allow CAFOs. CAFOs already are permitted in farm zones. CAFOs could be built on the site of the ag park regardless of the outcome of the re-zoning. The re-zoning petitioners say they have no intention of building CAFOs.

Use the search box for other Shideler ag-park entries. Richmond attorney E. Thomas Kemp's Kemplog is also a good source of CAFO, ag-park and related stories, as is North Judson attorney Marty Lucas' BigEastern.

Posted by Marcia Oddi on Thursday, September 01, 2005
Posted to Environment | Indiana economic development

Gov't. - Katrina's Wake: A Defining Moment for State Leaders

Dan Batz of the Washington Post has a good piece today on the two governors of the hardest hit Gulf states. Some quotes:

Nothing prepared Louisiana Gov. Kathleen Babineaux Blanco (D) or Mississippi Gov. Haley Barbour (R) for the devastation that descended on their states this week.

Facing what may be judged the worst natural disaster in the nation's history, the neighboring governors have struggled to organize huge emergency response operations that have initially overwhelmed available resources while trying to digest the scope of the physical and human damage that lies in Hurricane Katrina's wake. * * *

The storm has put a spotlight on two first-term executives who were elected within weeks of each other in November 2003, but who have markedly different personal histories and political styles.

Barbour, 57, is a well-connected politician who spent two decades in Washington before returning to his home state to run for governor. He is a former Republican National Committee chairman, was White House political director during the Reagan administration and was one of the capital's most successful lobbyists before winning election.

Blanco, 62, is a former school teacher who rose through the ranks of state government to become the first female governor of Louisiana. She served as a state representative for five years, was a member of the Public Service Commission and spent two terms as lieutenant governor. Her come-from-behind victory in the gubernatorial runoff in 2003, which proved her critics wrong, provided Democrats a rare bright spot in the South. * * *

"Governors tend to be the focal point at the time of a disaster, as they should be," said Joe M. Allbaugh, director of the Federal Emergency Management Agency during Bush's first term. He added: "The governors' principal role is to make sure all the assets available to him or her are fully deployed." * * *

"They're both doing a fantastic job of dealing with a truly impossible situation," said Arkansas Gov. Mike Huckabee (R), chairman of the National Governors Association, of Blanco and Barbour. Describing New Orleans as "virtually the lost city of Atlantis," Huckabee said Blanco may face the more difficult long-term challenge, given what he said is likely to be extensive damage to roads, bridges, buildings and homes from being submerged for what could be weeks.

Both governors -- like other leaders in times of public crisis -- are working to project the right combination of empathy for the stricken and efficiency in managing the emergency, according to associates.

Posted by Marcia Oddi on Thursday, September 01, 2005
Posted to General News

Ind. Decisions - Appeals court says ballot numbers are a requirement

"Appeals court says ballot numbers are a requirement" is the headline to this story by Jennifer Whitson in today's Evansville Courier& Press. Some quotes:

The Indiana Court of Appeals on Tuesday [sic.] upheld the ruling of the Vanderburgh Circuit Court that the Election Board must number the list of candidates on future ballots.

In 2004, the Vanderburgh County Election Board approved an electronic ballot layout by Electronic Systems & Software that did not include numbers next to the candidates' names. * * *

The Election Board [argued] that state law mandates numbering only if systems are "capable" of it. They argued that the electronic voting system didn't automatically number candidates but needed to be manually programmed for the numbers. It wasn't capable of the numbering.

The Appeals Court found that logic didn't match the "plain and clear" meaning of the word capable or its use in Indiana law. They affirmed the lower court's ruling and ordered the Election Board to include candidate numbers on future ballots.

The decision is Vanderburgh Co. Election v. Vanderburgh Co. Democratic Central Comm. (8/31/05).

Posted by Marcia Oddi on Thursday, September 01, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court disciplines Highland attorney

In In the Matter of John M. Hughes (8/31/05 IndSCt), the Court publicly reprimanded and admonished respondent, John M. Hughes for his misconduct:

Per Curiam

We find that the respondent, John M. Hughes, violated Ind. Professional Conduct Rules 5.5(b) and 7.2(d). His violations consisted of assisting a person, who is not a member of the Indiana bar, in engaging in activities that constitute the unauthorized practice of law in this state, and, in failing to ensure that jurisdictional limitations on the privilege to practice law of lawyers in the firm are clearly listed on the firm’s letterhead. We publicly reprimand and admonish him for this misconduct.

Posted by Marcia Oddi on Thursday, September 01, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court frees man jailed for 526 days

"Man jailed for 526 days on murder charge freed" is the headline to this AP story in the Indianapolis Star. Some quotes:

TIPTON, Ind. -- A Westfield man jailed for more than a year on a murder charge was released after the Indiana Supreme Court ruled he had been held longer than state law permits.

Michael Shane Bramley, 28, was released from the Tipton County Jail on his own recognizance Monday, three days after the high court ordered his release.

In its 5-0 decision, the court ruled Bramley had been held without trial longer than allowed by state law. That decision overturned a July ruling by a Tipton Circuit judge who rejected Bramley's request for release.

Bramley appealed that decision, citing a rule that no defendant may be held without trial on a charge for an aggregate period of longer than six months unless the delay was caused by the defendant's motions or congestion on the court calendar.

Bramley had been jailed 526 days since his arrest on Feb. 5, 2004. Delays by the prosecution accounted for at least 193 days of Bramley's jail time, the high court said.

The Supreme Court's order is State ex rel. Michael Bramley v. Tipton Circuit Court (8/26/05).

A somewhat similar story appears today in the South Bend Tribune. Nancy J. Sulok writes:

Criminal charges have been dismissed against a South Bend police officer charged with nine felonies because his case languished too long in the system.

It's unclear exactly who dropped the ball, but most sources indicate the case died because the office of St. Joseph County Prosecutor Michael Dvorak failed to request a special prosecutor.

Cpl. Ronald Johnson had been facing four charges of failure to pay state taxes; four charges of theft; and a charge of corrupt business influence. All nine of the charges, filed in late September 2003, were felonies.

In this case, the problem was:
The bar allegedly had not paid sales tax to the state for the entire year, according to Stephanie McFarland, director of information for the Indiana Department of Revenue, but the five-year statute of limitations had expired for the first eight months. For the same reason, the charges cannot be refiled, she said. "We're disappointed with the outcome,'' McFarland said, because the state felt it had a strong case against Johnson.

Posted by Marcia Oddi on Thursday, September 01, 2005
Posted to Ind. Sup.Ct. Decisions

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

Updating Tuesday's ILB entry is this piece today by the Indianapolis Star's Kevin Corcoran, whose story begins:

Convicted killer Arthur P. Baird II's life was spared this week based on "unusual, probably unique" circumstances, according to Gov. Mitch Daniels.

But his act of mercy illustrates how governors can fill gaps in the law that permit the execution of people with severe mental illnesses, state and local experts say.

The U.S. Supreme Court has outlawed the execution of minors and mentally retarded killers. But the nation's high court has not directly addressed whether severely mentally ill inmates can be put to death.

Defense lawyers across the country are hoping the court will craft a standard for mental illness. Until then, they must appeal to the nation's governors.

"Commutation is meant for when the law hasn't caught up with society," said Richard Dieter, executive director of the Death Penalty Information Center, a Washington nonprofit that provides research on capital punishment.

Posted by Marcia Oddi on Thursday, September 01, 2005
Posted to Indiana Courts