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Monday, October 31, 2005
Ind. Courts - Renovation of Hancock County Courthouse in progress
The Greenfield Daily Reporter has a story today on the accomodations necessary during the course of the courthouse renovation project. Some quotes:
The first week of judicial musical chairs in the courthouse annex went smoothly, but the real test will come when the two courts have to share their makeshift courtroom.The magnificent Hancock County Courthouse is one of the first for which an "online tour" is available via the Indiana Courts website, which also includes this information:Judge Terry Snow moved Hancock County Superior Court 1 out of the Hancock County Courthouse last Monday. Snow’s office now is in the county treasurer’s office. When he has to have hearings, he’ll have them in the county commissioners’ meeting room, which is the same place Judge Richard Culver will convene Hancock Circuit Court.
“So far, so good,” said Snow. “It’s been a great adventure.”
The move by Snow (Culver’s court moved several weeks ago) is due to construction at the courthouse that will include the restoration of the original dome in the building that is located in Hancock Circuit Court.
A suspended ceiling in the courtroom had covered the dome for years. The focus of the project is to retain as much architectural integrity as possible to the building, which was constructed in 1896.
The renovations are costing the county approximately $6 million. Work on the project, which began in June, is set for completion in September 2006.
Fort Wayne architects, Wing & Mahurin, designed the Hancock County Courthouse that was constructed from 1896-97. It’s no coincidence that the courthouses in Hancock and Starke counties resemble each other; both were designed by Wing & Mahurin. In 1896 construction costs for the courthouse were just over $250,000. The current restoration effort includes restoring the decorative domed ceiling of the third floor courtroom and upgrading mechanical systems. The bond issue to pay for the courthouse restoration was approximately $5 million. The Hancock County Courthouse was listed in the National Register of Historic Places in 1985.
Posted by Marcia Oddi on Monday, October 31, 2005
Posted to Indiana Courts
Ind. Courts - Jackson county judgeship applications due Friday
The Seymour Tribune reported Saturday:
Attorneys interested in replacing Jackson Superior Judge Frank W. Guthrie have until Friday to submit a letter of application to Gov. Mitch Daniels.The Tribune also had a long story Saturday about retiring Jackson Superior Judge Frank W. Guthrie. Some quotes:He’ll have choices. Party choices, too. So far, two local attorneys plan to apply — former Jackson County prosecutor Jeffrey Nierman, a Democrat, and Brownstown attorney Bruce Markel III, a Republican.
State law says the appointee must live in Jackson County to hold office, although someone from outside the area would have an opportunity to apply, said Anita Samuels, assistant general counsel to Daniels. But any such applicant would be questioned about their local connections and interests in living here.
“We take into account the residency requirement,” Samuels said, as well as professional qualifications.
Stephanie Kalogeros, administrative assistant to the governor’s general counsel, said interviews will likely start the week of Nov. 7. She was unsure when an appointment would be made.
Asked about his judicial legacy, Jackson Superior Judge Frank W. Guthrie said he hopes people will recall his tenure on the bench as being marked by fairness.“It’s too much to ask for them to think I was right all the time,” Guthrie said. “If they were to think I gave it my best shot all the time, that might be the best I could ask for.”
That seems to be a safe verdict as Guthrie, 57, plans to retire, effective Dec. 3.
“Judge Guthrie was always accessible, fair in his decisions and receptive to the attorneys’ presentation of all of the evidence he needed to make a decision,” attorney Jeff Lorenzo of Seymour said. Lorenzo practiced before Guthrie as a private attorney and as a deputy prosecutor.
“My sense of it was he was an extremely good judge because he was a fair-minded man,” Lorenzo added. “There were never politics involved in his judicial decision-making.”
Lorenzo and Seymour attorney John Rothring said the long tenures of Guthrie and former Jackson Circuit Judge Robert R. Brown have been good for Jackson County residents and their attorneys.
“A local bar gets a good feel for how particular cases will be adjudicated, which sometimes makes it much easier to work out a fair, equitable settlement without using the court’s time,” Rothring said. “Continuity in many ways equates to efficiency or judicial economy.”
Lorenzo agreed, contending the continuity enables attorneys to better advise their clients.
“I’m sorry to see him go,” Lorenzo said. “Aside from his judicial record, he’s just a good man, although I’m sure there are some criminal defendants who might disagree.”
Posted by Marcia Oddi on Monday, October 31, 2005
Posted to Indiana Courts
Gov't. - Putting lobbying records online is fiasco in Congress
The Washington Post has a lengthy story today headlined "Lobbyists Tangled in a Paperless Pursuit" by long-time congressional expert Jeffrey H. Birnbaum. Some quotes:
Lobbying disclosure, at least as practiced, is a near contradiction in terms. Lobbyists rarely need to file documents on their activities -- only twice a year -- and reveal nothing beyond who pays them, how much and for what general purpose.That's why so many people cheered when, out of the blue, the House of Representatives decided to make lobbyists file disclosure reports electronically. Do-gooders dreamed of greater access to information about Washington's secret society. And high-priced advocates looked forward to finding out faster what their competitors were charging.
But none of that has come to pass. In fact, this seemingly sensible and long-overdue reform has sparked one of the nastiest and most counterproductive mess-ups on K Street.
In late June, Rep. Robert W. Ney (R-Ohio) -- lately best known as a friend of embattled lobbyist Jack Abramoff -- directed the clerk of the House to require all lobbyists to file disclosures over the Internet. * * *
"It's been a nightmare," said Peggy Houlihan, a lobbyist who attended a contentious briefing on the new system in the chandeliered hearing room of the Administration Committee last week.
One problem is that the House and the Senate have entirely different and incompatible systems. Lobbyists must file separately with each chamber.
But because of Ney's decision, there's a strong chance that the House's system, which is far less accessible to the public, could trump the Senate's and leave lobby watchers in the lurch.
The Senate posts its lobbying reports -- some filed electronically but most handed in on paper and then scanned into an Internet-ready format -- for all the world to see under the "legislation and records" section at http://www.senate.gov/ . Researchers are able to peruse the site to gain real insight and knowledge. The House, in contrast, makes reading its documents as difficult as possible. House-deposited reports are not posted on the Internet. To read them, a person must find his way to the basement of the Cannon House Office Building and wrestle with computer terminals there that offer limited search capabilities.
And here's the clincher: Even though the House will require filing over the Internet, it has no plans to put the records online. Its habit of keeping its door largely closed to public inspections will remain entirely unchanged.
Posted by Marcia Oddi on Monday, October 31, 2005
Posted to General Law Related
Ind. Decisions - Court of Appeals decides contractual dispute between builder; several criminal cases
In S.C. Nestel, Inc., et al. v. Future Construction, Inc., a 14-page opinion entered today, Judge Baker writes:
Appellant-defendant S.C. Nestel, Inc. d/b/a Advantage Design Build (Nestel) appeals the trial court’s judgment in favor of apellee-plaintiff Future Construction, Inc. (Future) regarding Future’s claims for negligence and breach of contract. Specifically, Nestel contends that the trial court erred in denying its motion for summary judgment and in failing to enforce the contractual waiver of subrogation clause in its judgment. Finding that the waiver of subrogation clause is controlling, we reverse the judgment of the trial court.One of the issues in Stephen Lewis Wells v. State of Indiana involves what the majority terms "a scriviner's error". Judge Baker writes:
Concluding that an apparent scrivener’s error resulted in the omission of one count to which he pleaded guilty and the imposition of the sentence, we remand this cause to the trial court for the purpose of allowing the trial court and the parties to correct the clerical error and for further proceedings, if necessary, that are consistent with this opinion.Judge Riley dissents, quoting from Griffin v. State, a 2001 CtApp decision:
[a] plea agreement is a contract, an explicit agreement between the State and the defendant which is binding upon both parties when accepted by the trial court. Because a plea agreement is a contract, the principles of contract law can provide guidance in the consideration of plea agreements. The primary goal of contract interpretation is to give effect of the parties’ intent. When the terms of the contract are clear and unambiguous, they are conclusive of that intent, and the court will not construe the contract or look to extrinsic evidence. Rather we will merely apply the contractual provisions.In Phillip Logan v. State of Indiana, the panel, in an opinion written by Judge Bailey, rejects Logan's contention that the child pornography law, IC 35-42-4-4, unconstitutionally infringes upon Logan’s free speech rights provided by the federal and Indiana constitutions:
Here, Logan has not demonstrated that regulation of child pornography is an abuse of his right to expression. Child pornography is not political expression, and we cannot say it is a “core” value under the Indiana Constitution. We therefore apply a rationality review in determining whether the State could reasonably conclude that, to the extent Logan’s activity was expressive, it was an “abuse” of his right to expression, i.e., whether it constitutes “a threat to peace, safety, and well-being.” See id. at 1371. The State’s interest in protecting child welfare easily passes this standard. Accordingly, as limited by our prior discussion, Indiana Code Section 35-42-4-4 does not contravene the right to free expression as guaranteed by Article I, Section 9.Deangelo Pinkston v. State of Indiana is a sentencing case. Judge Robb writes:
Pinkston raises one issue for our review, which we expand and restate as follows: 1. Whether the aggravator phase of Pinkston’s bifurcated trial, in which the jury found the existence of two aggravating circumstances later used by the trial court in sentencing Pinkston, violated the Distribution of Powers Clause of the Indiana Constitution; and 2. Whether the trial court properly enhanced Pinkston’s sentence. * * *Therefore, the addition of an aggravator phase to Pinkston’s trial did not violate the Distribution of Powers Clause of the Indiana Constitution. * * *
Pinkston next argues that the trial court erred in enhancing his sentence because it relied upon improper aggravators. We agree. * * *
Therefore, based on Indiana Code section 31-32-2-6 and our supreme court’s statement in Jordan, we hold that juvenile adjudications are not prior convictions under Blakely/Apprendi. A trial court’s use of a defendant’s juvenile adjudications to enhance his or her sentence beyond the statutorily prescribed presumptive sentence violates the defendant’s Sixth Amendment right to a trial by jury and is improper unless (1) the defendant was afforded the right to a trial by jury during the juvenile proceedings; or (2) during an aggravator phase of the defendant’s criminal trial the defendant’s juvenile adjudications are submitted to the jury and proved beyond a reasonable doubt. * * *
Conclusion. Pinkston waived his constitutional argument regarding the aggravator phase of his trial. Notwithstanding that waiver, we conclude that the aggravator phase of Pinkston’s trial was constitutional because our supreme court has specifically authorized such proceedings. Juvenile adjudications are not prior convictions under Blakely/Apprendi. The trial court’s reliance on Pinkston’s juvenile adjudications as an aggravating factor was improper and violated Pinkston’s Sixth Amendment right to a trial by jury because Pinkston’s juvenile adjudications were not submitted to a jury and proven beyond a reasonable doubt. The trial court’s reliance on the aggravating factors that (1) Pinkston was in need of correctional or rehabilitative treatment, and (2) that the imposition of a reduced sentence would depreciate the seriousness of the offense, were also improper. Because each of the aggravating factors relied on by the trial court in enhancing Pinkston’s sentences were improper, Pinkston’s enhanced sentence is inappropriate. Therefore, we remand this case to the trial court for re-sentencing in accordance with this opinion.
Affirmed in part, reversed in part, and remanded. BAILEY, J., concurs. FRIEDLANDER, J., dissents with opinion:
I agree with the majority that there was no error in conducting a hearing for the purpose of asking the jury to determine the existence of aggravating circumstances, for sentencing purposes. I do not agree with the resolution of the second issue, however, in which the majority concludes that true findings of juvenile delinquency are not “criminal history” for purposes of Blakely v. Washington, 542 U.S. 296 (2004).
Posted by Marcia Oddi on Monday, October 31, 2005
Posted to Ind. App.Ct. Decisions
Environment - More on Great Lakes issues; logging Indiana' state forests
The Washington Post yesterday had a story titled "States, Canada Move to Block Sales of Water." A quote:
Great Lakes governors and Canadian premiers decided in 2001 to prevent any future large-scale water sales.And here is the report of The Great Lakes Interagency Task Force, mentioned in an ILB entry yesterday. (Thanks to Ed Feigenbaum for the link.) And a report on the Report, from the Sunday South Bend Tribune: "The report, issued by the Environmental Protection Agency on behalf of a Cabinet-level task force Bush appointed in 2004, said federal officials had "serious concerns" with a draft version of the Great Lakes initiative released in July."Final drafts of two agreements that would attempt to limit water diversions are to be finished by the end of the year.
Though no large-scale diversions are currently on the table, smaller battles over water diversion are raging.
"Clearcutting the public’s land" is the headline to a story from the Bloomington Alternative, by Steven Higgs. It begins:
Kyle Hupfer came to Bloomington on Oct. 25 to defend his plan to clearcut Indiana State Forests as a science-based approach to public lands management.But the director of the Indiana Department of Natural Resources (DNR) spent most of a 2½-hour public forum deflecting charges that his science is little more than thinly veiled cover for a radical political agenda.
Not only did Hupfer acknowledge that Gov. Mitch Daniels and his DNR plan to increase logging on the 150,000-acre state forest system by 400 percent, but they will clearcut “hundreds of acres a year,” in State Forester Jack Seifert’s words.
And they will cut trees in deep forest areas that have historically been off limits to chainsaws.
Posted by Marcia Oddi on Monday, October 31, 2005
Posted to Environment
Law - Kentucky requires qualifying exam for circuit clerk candidates
A story in the Evansville Courier& Press today reports that:
Tuesday is the deadline for registering to take a qualifying exam to become a candidate for election next year to the office of circuit court clerk in Kentucky.Each of the state's 120 counties has a circuit court clerk who is responsible for managing the records of that county's circuit and district court records as well as administering drivers' licensing. * * *
To become a candidate, a person must score 70 or higher on the exam. Additional information regarding the exam and manuals describing office procedures are available through the Administrative Office of the Courts at Frankfort or by visiting its Web site, www.kycourts.net.
Current circuit court clerks who plan to seek re-election are exempt from having to take the qualifying exam, but all others who want to run for the office must successfully complete it.
Posted by Marcia Oddi on Monday, October 31, 2005
Posted to General Law Related
Ind. Decisions - Hendricks Superior Court jury finds seller failed to disclose water damage
The Indianapolis Star reports today:
A Plainfield family has won a lawsuit claiming the seller of its house failed to disclose a mold problem.A Hendricks Superior Court jury last week awarded $350,000 to Brian and Ronda Colee. The award was more than the $327,000 they sought for costs of gutting and rebuilding the house, attorney fees and emotional distress. * * *
In the suit, Salesman [the Seller] was accused of fraud and deception by signing a real estate seller's disclosure form declaring the house was free of mold or any other problems or hazards. The Colees relied upon that statement, which state law requires of the sellers of all real estate.
"The implication for all sellers is to be honest. This form is a statement about the condition of the home and it is under oath. The courts have found that a seller who makes false statements is liable to a buyer who is damaged," Harrington said. * * *
According to testimony in the two-day trial, two previous owners of the 1,400-square-foot Plainfield ranch home had experienced problems with water leaking into the basement and mold growing on upstairs walls during the 1980s and 1990s.
Posted by Marcia Oddi on Monday, October 31, 2005
Posted to Ind. Trial Ct. Decisions
Sunday, October 30, 2005
Enviroment - Recent stories include sewer sabotage, contaminated barrels, Indiana agriculture regulatory council; Great Lakes
Sewers. "Sewers sabotaged in New Albany: Untreated water flowed into Ohio" is the headline to a story from Saturday in the Louisville Courier Journal.
Abandoned Barrels. "Dangerous chemicals fill former barrel company site" is the headline to a story in the Fort Wayne Journal Gazette. It begins:
It was just over a year ago when a NIPSCO worker arrived at the gates of Hassan Barrel Co. to remove a gas meter because it hadn’t been used in more than a year.Here is the ILB entry from over a year ago, titled "Barrel and drum recycler allegedly abandons site."He found the meter, but he also found an environmental disaster: Thousands of industrial barrels, rusting and leaking all over the 7-acre site in a Fort Wayne residential neighborhood and just a few blocks from Adams Elementary School. The barrel recycling company had been abandoned more than a year before when the owners locked the doors and walked away, leaving behind a nightmare of toxic chemicals in rusty barrels and open pits.
The Environmental Protection Agency swooped in with contractors and security guards to secure the site, remove the barrels and test for contamination.
But a year later, little has changed – and in some ways the situation has gotten worse.
New Regulatory Group's Impact on IDEM? The publication, Inside Indiana Business, this week reprinted a press release from the Lt. Governor that the "Indiana Agriculture Regulatory Council met for the first time this week in an effort to improve interagency coordination and communication dealing with the state's agriculture industry." Some quotes:
This newly formed group is made up of state agencies having regulatory responsibilities related to Indiana food and agriculture. The Council met Monday with the goal of improving interagency coordination and communication. * * *Great Lakes Restoration. "Sea of Studies Doesn't Help Restoration of Great Lakes: Money Woes Undercut Hopes for Clean Water" is the headline to this story today in the Washington Post. The lengthy report begins:The Indiana Agriculture Regulatory Council is not a regulatory body and has no decisionmaking authority. The group will meet quarterly as a way to keep the lines of communication open as the state works to grow Indiana agriculture.
CHICAGO, Oct. 29 -- From the algae blooms in Lake Erie to the invading zebra mussels in Lake Michigan, threats to the Great Lakes ecology stretch from A to Z. That would include B for bacteria, M for mercury and T for toxic spills.Chicago beaches close routinely because of E. coli contamination. Advisories are in place about eating fish contaminated with dangerous chemicals. Environmental advocates warn about sewage overflows, water diversion and the increasing demands of a thirsty population.
After many years of haphazard government stewardship, a broad study effort convened by the administration discovered much agreement on the vast water system's troubles. The problem is the cost. A draft report released in July suggested spending $20 billion in the coming years -- several times more than current expenditures, and more than influential members of the Bush administration consider affordable.
Although formal conclusions are not due until December, skeptical Republicans and Democrats are already questioning the commitment of the White House and its congressional allies -- not least because of the huge demands of the Iraq war and the rebuilding of the Gulf Coast.
"We want to see action," said Rep. Mark S. Kirk (R-Ill.), who reported that 140,000 women in Illinois alone showed elevated levels of mercury. To end the administration study effort with merely a series of poorly funded recommendations, he said, would "make it a waste of time."
Rep. Rahm Emanuel (D-Ill.), who joined Kirk in developing a $4 billion Great Lakes cleanup bill now stalled in Congress, said the administration has spent $4.5 billion on water projects in Iraq.
"This is not a mystery anymore. We know what needs to be done," Emanuel said. "The Great Lakes has gotten nine studies in four years from this administration, and Iraq has gotten $4.5 billion. Give Iraq the studies, and we'll take the money."
Posted by Marcia Oddi on Sunday, October 30, 2005
Posted to Environment
Ind. law - "Legal morass encircles Allen family farm"
"Legal morass encircles Allen family farm: Generations still feud in a case that frustrates everyone involved" is the headline to a lengthy story today in the Fort Wayne Journal Gazette, written by Ron Shawgo, that I can't even begin to summarize. An example:
Through the years the mother and son repeatedly have alleged John Powelson ran over his father, causing his dementia after the power of attorney was signed. Stephanie Stauffer, May’s daughter, suggested pursuing civil action against her uncle and offered to take her grandfather home, using his Social Security and retirement benefits to care for him. May claimed that her dad owed her money and the debt was used as payment under terms of the property transfer.Felger maintained the power of attorney was invalid and that May overstepped her power by giving the property away. He also alleged that Beau Stauffer forfeited his interest in the real estate by not paying on contracts – mortgages, taxes, ditch assessments – related to the deeds, which he maintained were “procured through fraud.”
Posted by Marcia Oddi on Sunday, October 30, 2005
Posted to Indiana Law
Ind. Courts - Richmond Palladium-Item features Indiana Supreme Court today
Rebecca Holmes of the Richmond Palladium-Item has a long article today headlined "Series of reforms help courts work toward justice and for the people." Some quotes:
Over the last 20 years, [Chief Justice Randall Shepard] has molded the court slowly and steadily, introducing issues he believes it needs to try to change for the better. A history and preservation buff, he uses the state's past to help him figure out where it should go next.A second article gives a brief biography of each of the five Indiana Supreme Court justices.His efforts have changed the way both the Supreme Court and courts around the state function.
Changing how the Indiana Supreme Court's caseload is determined was an issue Shepard took up immediately in his first-ever State of the Judiciary Address in 1988. * * *
[B]efore reforms were instituted, about 90 percent of the cases coming before the court were from criminal dockets. Many of them made it to the docket because of a provision in the Indiana Constitution mandating the court hear cases where a sentence of greater than 10 years was imposed.
"Everything else got pushed out," Shepard said, including things like custody cases, probate cases and other civil matters.
But while the court was under his guidance, voters passed not one but two statewide referenda changing that. Now, much of the criminal caseload has been reduced. The only criminal cases the Supreme Court is mandated to review are capital murder where defendants have been sentenced to die.
Because of that change, Shepard said the court's appellate role has changed dramatically. He and the four other Supreme Court justices meet once each week to review cases they will hear.
"We seem to take the cases that affect the most people," Shepard said. "You know you have a fighting shot of getting your case heard."
John Maley, an attorney who was raised in Richmond but now lives in Indianapolis, oversees more than 50 attorneys at the Indianapolis-based Barnes and Thornburg law firm and specializes in appellate law.
He said the Supreme Court has basically two functions: the administrative duties where it oversees lawyers and judges and the classic, traditional appellate work function.
"Most of those (appellate) cases involve constitutional questions," Maley said. "They (the Supreme Court justices) want to hear something that's going to impact people and businesses."
Posted by Marcia Oddi on Sunday, October 30, 2005
Posted to Indiana Courts
Environment- Fort Wayne paper has major editorial on big livestock operations
The Fort Wayne Journal Gazette has a major, signed editorial today by Stacey Stempf titled "Mega-farms smell of money: Big livestock operations help economy, can hurt environment." A quote from about mid-point in the editorial:
Daniels is not the first to advocate for agricultural industry growth. In 1972, U.S. Agriculture Secretary Earl Butz, a fellow Hoosier and Republican, bluntly told farmers to “Get big or get out.”Danielle Nierenberg, a research associate with the Worldwatch Institute and author of a study titled “Happier Meals: Rethinking the Global Meat Industry,” fears the push to expand livestock operations will do more harm than help.
“It’s not going to help Indiana farmers. It may increase foreign investment.” She says foreign farmers are moving to the Midwest because the environmental and health regulations are less stringent. She may have a point given a recent increase in permit applications from Dutch farmers, including the rejected Oolman Dairy Farm application in Blackford County.
“When politicians start talking about revitalizing economic development and expanding agriculture – this is not the way to do it,” Nierenberg said. “If politicians want to increase community development, they are better off supporting family farms rather than encouraging multinational corporation farms.”
She thinks Indiana’s leaders should instead encourage owners of small and medium farms to raise livestock in ways that are more in tune with the land. The ideal is mixed farming; raising both crops and animals. “It’s a system that’s cyclical and self-sustaining,” she says.
Posted by Marcia Oddi on Sunday, October 30, 2005
Posted to Environment | Indiana economic development
Saturday, October 29, 2005
Law - Alaska Supreme Court rules "same-sex partners of state workers entitled to equal protection"
Today's Anchorage Daily News has an AP story that begins:
The Alaska Supreme Court on Friday ruled it is unconstitutional to deny benefits to the same-sex partners of public employees, a major victory for gay rights advocates in one of the first states to pass a constitutional ban on homosexual marriage.Here is how the 29-page opinion in Alaska Civil Liberties Union v. State (10/28/05) begins:The unanimous decision essentially hinged on the issue of equal protection for all Alaskans, which could have a sweeping effect on other states, said Michael Macleod-Ball, director of the Alaska chapter of the American Civil Liberties Union.
"Other courts in other states could be looking to the state of Alaska on how it handled the equal protection rationale," he said.
The Alaska Supreme Court said in its ruling that public employees and their opposite sex partners can marry and become eligible for the city- or state-provided benefits.
"But no same-sex couple can ever become eligible for these benefits because same-sex couples may not marry in Alaska. The spousal limitations in the benefits programs therefore affect public employees with same-sex domestic partners differently than public employees who are married," the ruling says.
"We conclude that the public employers' spousal limitations violate the Alaska Constitution's equal protection clause," the ruling says.
The State of Alaska and the Municipality of Anchorage offer valuable benefits to their employees’ spouses that they do not offer to their unmarried employees’ domestic partners. Essentially all opposite-sex adult couples may marry and thus become eligible for these benefits. But no same-sex couple can ever become eligible for these benefits because same-sex couples may not marry in Alaska. The spousal limitations in the benefits programs therefore affect public employees with same-sex domestic partners differently than public employees who are married. This case requires us to determine if it is reasonable to pay public employees who are in committed domestic relationships with same-sex partners less in terms of employee benefits than their coworkers who are married. In making this determination, we must decide whether the spousal limitations in the benefits programs violate the rights of public employees with same-sex domestic partners to “equal rights, opportunities, and protection under the law.”The Alaska Constitution dictates the answer to that constitutional question. Irrelevant to our analysis must be personal, moral, or religious beliefs — held deeply by many — about whether persons should enter into intimate same-sex relationships or whether same-sex domestic partners should be permitted to marry. It is the duty of courts “to define the liberty of all, not to mandate [their] own moral code.” Our duty here is to decide whether the eligibility restrictions satisfy established standards for resolving equal protection challenges to governmental action.
We do not need to decide whether heightened scrutiny should be applied here because the benefits programs cannot withstand minimum scrutiny. Although the governmental objectives are presumably legitimate, the difference in treatment is not substantially related to those objectives. We accordingly hold that the spousal limitations are unconstitutional as applied to public employees with same-sex domestic partners, and we vacate the judgment below.
Posted by Marcia Oddi on Saturday, October 29, 2005
Posted to General Law Related
Ind. Law - More on another zoning dispute in Crown Point
he Munster (NW Indiana) Times has a story today headed "Crown Point to appeal rezone judgment: Officials have hired a Carmel law firm." Some quotes:
The city's Board of Public Works voted Wednesday to hire the Carmel-based firm Coots, Henke and Wheeler for a contract not to exceed $6,000 to $9,000 to do the work. The motion was backdated to Aug. 23.For another take on this, see this ILB entry from 10/27/05.In September, Judge William Davis, of Lake Superior Court in East Chicago, granted Misty Woods Properties LLC a partial summary judgment. There was no disputing that the Crown Point City Council failed to act on the company's rezoning petition within 90 days of the Plan Commission recommendation, he said. According to the motion, the "ordinance takes effect as if it had been adopted as certified."
According to the original complaint, Misty Woods is seeking judgment against the city in the amount of $2 million plus costs, attorney fees and other expenses. * * *
The suit argues that, by statute, rezoning petitions not initiated by the Plan Commission must be referred to the Plan Commission before final action is taken. As a result, the council's attempts to amend the rezoning petition were void and the council failed to act on the petition within 90 days, meaning the original rezoning petition takes effect.
Posted by Marcia Oddi on Saturday, October 29, 2005
Posted to Indiana Law
Ind. Gov't. - Indiana's sex offender register to be improved [Upated]
"Sex-offender registry soon will be upgraded: Maps, photos of registrants will be accessible online" is the headline to a story today by Lesley Stedman Weidenbener in the Louisville Courier Journal. Some quotes:
Gov. Mitch Daniels announced yesterday that an improved state sex-offender registry soon will allow Hoosiers to view maps locating people on the list who live near them.The Fort Wayne Journal Gazette also has a story, by Niki Kelly. Some quotes:The governor also said that the state Department of Correction will begin providing data directly to the registry, which is posted on the Internet by the Indiana Sheriffs Association, before offenders leave prison. * * *
The mapping option should be available early next year, Daniels said.
It will allow users to plug in their location and find all the sex offenders who have registered addresses in the area. It also will be searchable by county, city and ZIP code.
Already, much of that information is posted on the Web site at www.indianasheriffs.org.
But under the new registry, people will be able to type in any street address and receive maps with icons that indicate where registered sex offenders live.
Brent Myers, a research analyst with the correction department, said people will be able to zoom in within a mile or less of that address, and the maps will indicate where the offenders reside and identify schools, parks and day-care centers in the area.
A person can click on an icon of an offender's location, and a photograph of the person will be displayed as well as information about his or her criminal record.
The primary change is to integrate the two registries: the Indiana Criminal Justice Institute and the Indiana Sheriffs’ Association.Hmm. Check out this free site, that covers 38 states. I put in the ILB zipcode, 46202, and after a few moments MANY pinpoints appeared on a map of the 46202 area. Clicking on a pinpoint brings up a little photo of the individual, along with his/her name and address. Clicking on the name brings up a list of the offenses for which the individual may have been convicted.Daniels erred when he cited the Indiana Department of Correction as having a directory as well.
The state’s official sex offender registry will remain on the Indiana Sheriffs’ Association Web site. The upgrades won’t be visible until at least January.
According to a statement, the upgrade offers mapping capabilities so residents can see whether their neighborhood or school has sex offenders living within a certain distance.
The statement also boasted a new feature that highlights the offender’s name, age, race and charges. But the current site already offers that information.
DOC officials also will start putting offender names on the registry as they are released from prison. But it still relies on self-reporting from each offender to keep the registry up-to-date when they move.
A link also will be placed on the National Sex Offender Public Registry Web site.
The cost of the improvements, including the mapping and integration of information, is about $170,000 and is being paid for by the Indiana Criminal Justice Institute.
For an even better setup, that also is free, and covers 27 states but does not yet include Indiana, check here, at US-SEX-OFFENDERS.COM. As it does cover Illinois, I typed "60409", the zip of Calumet City, Illinois, in the search box at the top of the page. Try it out. It shows where the registrants are located, where the schools and parks are located, etc. Click on a pinpoint to pull up the name, addrees, and photo of the registrant. A right hand column lists all the registered offenders in the neighborhood in alphabetical order, clicking on one leads to the map location.
For information on how to do these maps, see this article from PC.COM. And this article from the NY Times headed "Customizing Google maps at the drop of a pin." Some quotes:
An army of programmers, most of them doing it just for fun, has grabbed the software code that generates the distinctive maps with their drop-shadowed virtual pushpins, and combined it with other data like the locations of potholes, taco trucks and UFO sightings, and even the sites of murders and muggings.Also check out these crime incident report maps from Ypsilanti Michigan and this one from Philadelphia. The principle behind all these is the same -- combining a database of information with a google map.
The result is Google map mash-ups, the latest form of Internet information repackaged for entertainment and, perhaps, profit. For instance, type the official airline flight abbreviation and flight number into Google's U.S. search engine and the FBOweb.com should come up at the top of the results page. Click on that and you will see a pushpin marking the spot where the plane is. The service also provides a data box listing the speed, altitude and estimated time of arrival of the flight.
Another service, Homepricerecords.com, combines the home sales data with a Google map when you type in an address. (It has data only for San Francisco and Los Angeles area homes, but the service promises that Chicago and New York data are coming soon.)
No one really knows how many Google map mash-ups are out there, and it is difficult to hazard a guess on how many new ones are created each day. But that does not stop some bloggers from desperately racing to keep up with the latest. Mike Pegg, an account manager for a software company in Waterloo, Ontario, is one of them. He created Google Maps Mania (www.gmapsmania.com) several months ago in a quixotic attempt to chronicle the phenomenon.
Almost every day he lists a dozen new ones, ranging from the commonplace, like sex offender maps, to the esoteric, like bird sightings in India. "I am their press release," Pegg said of the mash-ups.
[Updated] A reader has asked me, was this $170,000 project bid? Not as far as I know; here is the state's site for competitive bidding, that the ILB checks frequently, but there is no way to check on what has been bid once the "bid opening" date has past.
The "trail" next picks up here, with a Report of Professional Service Contracts for State Agencies, at the bottom of the page. The most recent one is for FY 7/1/04 through 6/30/05.
This is the (as of today, current through 10/13/05) list of Active State Contracts. It is about 7 megabytes in size and very slow to load. The Criminal Justice Institute contracts are about one-third of the way down this very long list. I've converted the pages relating to Criminal Justice contracts to a 2-page pdf file; Criminal Justice begins with the last 10 lines on the first page of the extract.
Although the list is very interesting, only the last entry deals with data processing, and it is a different project that the one announced this week by the Governor.
D3-5-6063 CRIMINAL JUSTICE INSTITUTE CREATE AND HOST A WEB-BASED APPLICATION FOR AUTOMATING LOG OF JUVENILES HELD 01-Jul-05 30-Jun-08 GOTTLIEB & WERTZ, INC. PROFESSIONAL SERVICES 81,000.00There is no way to tell whether any or all of these contracts have been bid, no explanation of how they were awarded, and no links are available to the contract documents themselves. Presumably copies of any of the contracts in the 7 megabyte list may be obtained via a FOIA request.
Posted by Marcia Oddi on Saturday, October 29, 2005
Posted to Indiana Government
Law - More on Hoosier Maureen Mahoney for the Supreme Court
"Merrillville native might have shot at Supreme Court: Law professor, mom say Maureen Mahoney has personal, intellectual credentials" is the headline to a story today in the Munster (NW Indiana) Times. Some quotes:
MERRILLVILLE | Merrillville native Maureen Mahoney's name being considered as a U.S. Supreme Court nominee doesn't surprise her mother, Marian Mahoney.See also yesterday's ILB entry on Ms. Mahoney."I talk to my daughter or e-mail her every day. I've known for some time," said Marian Mahoney in regard to her 51-year-old daughter being mentioned as a potential nominee.
Maureen Mahoney confirmed Friday she is a potential nominee, but she said she can't talk about the process leading up to her accepting the nomination.
Posted by Marcia Oddi on Saturday, October 29, 2005
Posted to General Law Related
nd. Courts - More on federal district court hears challenge to opening-day prayers in General Assembly
Richard D. Walton of the Indianapolis Star has a story today on the hearing yesterday. (Scroll down three for yesterday's report.) Some quotes:
Where to draw the line was the theme of the hearing on the Indiana Civil Liberties Union suit that contends House prayers have overwhelmingly promoted Christian beliefs to the exclusion of other faiths. The ICLU seeks to force the House leadership to devise guidelines for clerics clearly telling them to offer nonsectarian prayers.The Louisville Courier Journal has an AP story by Ashley M. Heher that begins:Judge David Hamilton, taking the case under advisement, made no ruling Friday.
The U.S. Supreme Court has upheld prayers for divine guidance in legislative sessions. But it and other courts have questioned prayers that promote one religion over another or are aimed at converting listeners to a particular faith.
INDIANAPOLIS -- Lawyers for the Indiana Civil Liberties Union told a federal judge yesterday that House Speaker Brian Bosma should create strict guidelines for clergy who offer prayers before the start of meetings of the House.But Bosma and his lawyers said they don't think there's anything wrong with the prayers and will fight to defend free speech for the faithful.
Posted by Marcia Oddi on Saturday, October 29, 2005
Posted to Ind Fed D.Ct. Decisions
Friday, October 28, 2005
Ind. Courts - Randolph County Courthouse group hires lawyer; and a thought
The Winchester News-Gazette today has a story by Cynthia Aukerman headlined "Save Our Courthouse hires lawyer." Some quotes:
The Save our Courthouse Committee has retained Gregory F. Hahn, a partner in the Indianapolis law firm of Tabbert, Hahn, Earnest and Weddle, to pursue legal means to protect the Randolph County Courthouse from demolition.In addition, the story documents that Save Our Courthouse "has worked closely with Historic Landmarks Foundation of Indiana" and has "brought in a series of experts to speak to commissioners about the economic value of preservation and the soundness of the building."Save Our Courthouse spokesman Larry Francer said the group believes county commissioners must fulfill the special legislation that was granted by the state legislature to renovate the courthouse.
That legislation established a special tax for courthouse renovation, a tax that has been collected from county taxpayers for several years.
Francer said, "We would rather spend our money on the courthouse itself rather than on legal fees. However, if the commissioners don't rescind the demolition vote, we are willing to spend our money to force them to abide by the law passed to benefit the courthouse."
A Thought. The ILB has posted a number of entries about the endangered Randolph County Courthouse. But nowhere have I seen mention of the positions of the Randolph County Circuit and Superior Court judges on the matter of the demolition of the Courthouse and the moving of the courts and other governmental functions to a Walmart or other available space, as the County Commissioners have proposed.
"Separation of Powers in the County Courthouse," an article of mine published in the September issue of Res Gestae (and also available here), looks at the use of the judicial mandate in Indiana.
Our Supreme Court has held consistently that the use of the judicial mandate is not limited to disputes about funds. And it has ruled that "The 'courthouse,' as the term implies, is chiefly for the use of the court, the remaining uses being subordinate, and to a great extent, incidental."
My article points out that "only two cases had been located where the Supreme Court [has] totally rejected a mandate, one directed that the location of the courthouse be changed, and the other, that the courthouse be razed."
Surely then, one or more of the Randolph County judges, who possess the power of the judicial mandate, may wield it, if they so chose, to protect the historic Randolph County Courthouse from demolition.
Posted by Marcia Oddi on Friday, October 28, 2005
Posted to Indiana Courts
Ind. Courts - Marion Circuit Court Judge Theodore M. Sosin replaces Judge Moores in surrogacy case involving twins
Kevin Corcoran of the Indianapolis Star reports this afternoon that:
A new Marion County judge has been chosen to preside over the child welfare case involving twin infant girls born through surrogacy in April.Marion Circuit Court Judge Theodore M. Sosin, elected to the bench in 2002, must decide whether to keep the child welfare case in Marion County or allow it to move to Hamilton County, where the girls' adoption by a 58-year-old New Jersey schoolteacher has been reopened. The adoptions were finalized in Hamilton Superior Court a few weeks after the girls were born at Methodist Hospital.
If Sosin keeps the child welfare case in Indianapolis, which court-appointed advocates are urging, he must determine whether records and proceedings in the case will remain open. The records have been transferred to his courtroom.Sosin was picked after both state officials and the New Jersey man's attorney struck two other judges from a panel of three judges eligible to receive the case. Sosin was unavailable for comment Friday. He replaces Judge Marilyn A. Moores, who recused herself in mid-September after calling for a federal investigation into the Indiana company that had arranged the surrogate births.
Posted by Marcia Oddi on Friday, October 28, 2005
Posted to Indiana Courts
Ind. Courts - Federal district court hears challenge to opening-day prayers in General Assembly
Martin DeAgostino reports today in the South Bend Tribune:
INDIANAPOLIS -- A trial in federal court today will determine the future, if any, for legislative prayers in the Indiana General Assembly.The Indianapolis Star website has this story by Richard D. Walton. Some quotes:U.S. District Judge David F. Hamilton has promised a ruling before Nov. 22, when lawmakers convene for a one-day session called Organization Day.
If history prevails, the day will open with prayer from an invited member of the clergy or an elected lawmaker.
But if a court challenge to the practice prevails, the prayer will either not occur or be limited to a nonsectarian form without reference to specific deities or religious beliefs.
That's the outcome sought by four plaintiffs, represented by the Indiana Civil Liberties Union, who say legislative prayer is too often marked by Christian references and beliefs that exclude non-Christians. * * *
The defendant is Speaker of the House Brian Bosma, R-Indianapolis, whose lawyers say the practice follows a line that starts with the first Congress and balances three constitutional principles: free speech, free exercise of religion and the establishment clause. The establishment clause is the First Amendment phrase that says "Congress shall make no law respecting an establishment of religion."
"This is about government speech," Bosma's lawyers said in briefs filed with the court, "but it is also about permitting service to the government without leaving one's conscience at the Statehouse door." Bosma also is challenging the plaintiffs' standing to file suit, on grounds that they have suffered no genuine injury.
Legislative prayer has a complicated legal history, according to [ICLU Legal Director Ken Falk] and Thomas M. Fisher, the deputy attorney general for Indiana who is handling Bosma's defense.
The U.S. Supreme Court allowed the practice in a 1983 decision, but Falk said it qualified its allowance by barring prayers that veer into proselytizing or the disparagement of other beliefs.
Lower courts have since interpreted that case, known as Marsh v. Chambers, as requiring nonsectarian prayer in government settings. * * *
The case is believed to be the first federal challenge to legislative prayer originating in Indiana.
The Rev. Clarence Brown had just thanked the Lord and Savior Jesus Christ when the Indiana House speaker reintroduced the Bedford cleric. The minister, Rep. Brian Bosma told his colleagues after the House prayer, "is going to bless us with a song."As Brown sang "Just a Little Talk with Jesus," some state representatives stood and clapped. Rep. David Orentlicher walked out.
The Indianapolis Democrat, who is Jewish, later said he thought the prayer and hymn excluded him. "I feel it's inappropriate for a lot of citizens of Indiana," he said.
Brown's actions spurred numerous complaints that led the Indiana Civil Liberties Union to file a suit challenging the constitutionality of sectarian prayer in the House of Representatives. A hearing on the suit is scheduled for today in federal court.
At issue: separation of church and state versus freedom of religious expression. At stake is the 188-year-old House tradition of opening each day with a prayer. * * *
Ken Falk, the ICLU's legal director, says the organization does not oppose an invocation being said. The U.S. Supreme Court has ruled that prayer is permissible in legislative bodies. But he said court decisions have made clear the prayers should be nonsectarian -- that is, they must not promote one religion over another.
Bosma, R-Indianapolis, named as a defendant in the suit because he controls the agenda of the House, said the ICLU is trying to censor religious speech.
"They want . . . (to) have the government place a standard for appropriate prayer in this building, rather than allowing those invited clergy of all faiths . . . to pray in a manner that they are comfortable."
Posted by Marcia Oddi on Friday, October 28, 2005
Posted to Ind Fed D.Ct. Decisions
Ind. Gov't. - File this under "bad ideas"
I try to stay out of politics in the Indiana Law Blog. But I would have the same reaction to this press release that a reader has just forwarded me regardless of what party it was from. A quote:
As part of Project Open Government, the Indiana Democratic Party will submit its own public records requests to state agencies and the Governor’s Office. The party also will take suggestions from Hoosiers who might not feel comfortable submitting records requests.Right. Let's all file public document requests just for the heck of it!All requests will be posted on the party’s website, www.indems.org, and whatever documentation the party receives in response to those requests will be scanned and posted on the website.
The first batch of requests will be submitted on November 2, which marks the one-year anniversary of the 2004 election in which Daniels was voted into office.
Posted by Marcia Oddi on Friday, October 28, 2005
Posted to Indiana Government
Law - 11th Circuit upholds injunction barring Georgia from enforcing voter ID law
The Washington Post reports today:
In a case that some have called a showdown over voting rights, a U.S. appeals court yesterday upheld an injunction barring the state of Georgia from enforcing a law requiring citizens to get government-issued photo identification in order to vote.For background, see this 10/19/05 ILB entry on the district court opinion, and this 10/23/05 report of an analysis piece from the Gary Post-Tribune.The ruling allows thousands of Georgians who do not have government-issued identification, such as driver's licenses and passports, to vote in the Nov. 8 municipal elections without obtaining a special digital identification card, which costs $20 for five years. In prior elections, Georgians could use any one of 17 types of identification that show the person's name and address, including a driver's license, utility bill, bank statement or a paycheck, to gain access to a voting booth.
Last week, when issuing the injunction, U.S. District Judge Harold L. Murphy likened the law to a Jim Crow-era poll tax that required residents, most of them black, to pay back taxes before voting. He said the law appeared to violate the Constitution for that reason. In the 2004 election, about 150,000 Georgians voted without producing government-issued identification.
Posted by Marcia Oddi on Friday, October 28, 2005
Posted to General Law Related
Ind. Decisions - Suspended real estate license ruling is reversed by Court of Appeals; more
In Indiana Real Estate Commission v. Rick Edward Martin, one of four opinions issued today, Judge May writes:
The Indiana Real Estate Commission (“Commission”) appeals the trial court’s reversal of the Commission’s final order suspending Rick Martin’s real estate license as a result of his failure to obtain approved continuing education. The Commission raises one issue: whether the court erred when it determined the Commission’s decision was arbitrary and a violation of Ind. Code § 25-1-11-16, which encourages consistency in sanctions. We reverse and remand. * * *In Philip Wayne, M.D. v. Norma M. Begley, Judge Baker writes:The Commission did not act arbitrarily when it suspended Martin’s license for two years but rather meted out consistent sanctions in accordance with Ind. Code § 25-1-11-16. Reversed.
Appellant-defendant Philip Wayne Hassan, M.D. (Dr. Hassan), brings this interlocutory appeal challenging the denial of his motion for summary judgment regarding a medical malpractice claim that was brought against him by appellee-plaintiff Norma Begley, individually and as the personal representative of the estate of her deceased husband, Willie A. Begley.In particular, Dr. Hassan alleges that the trial court erroneously denied his motion because the designated evidence established that his failure to place a nasogastric tube (NG tube) in Begley following his admission to the hospital emergency room did not proximately cause his death. Concluding that Begley has failed to submit designated evidence establishing that Dr. Hassan’s conduct caused her husband’s death, we reverse the judgment of the trial court and remand this cause with instructions that summary judgment be entered for Dr. Hassan.
Posted by Marcia Oddi on Friday, October 28, 2005
Posted to Ind. App.Ct. Decisions
Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending October 28, 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 October 28, 2005. There are 45 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, October 28, 2005
Posted to NFP Lists
Ind. Decisions - Transfer list for week ending October 28, 2005
Here is the Indiana Supreme Court's transfer list for the week ending October 28, 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, October 28, 2005
Posted to Indiana Transfer Lists
Environment - Report on final 2005 meeting of Environmental Quality Service Council
Rep. Ryan Dvorak reports in his blog on Wednesday's final 2005 meeting of the legislative Environmental Quality Service Council (EQSC).
In addition, Dvorak has uploaded the draft version of the EQSC's 21-page report to the General Assembly.
Earlier ILB entries on the EQSC were posted 9/10/05 and 9/28/05.
Posted by Marcia Oddi on Friday, October 28, 2005
Posted to Environment
Law - Another Hoosier on the list for the Supreme Court
The Gary Post-Tribune has a story today by Danielle Braff headlined "Region native on short list." Some quotes:
A month after LaPorte County’s John Roberts was named to the U.S. Supreme Court, another Indiana local is being mentioned as a potential nominee.I didn't know Maureen Mahoney was from Indiana. Here is her firm biography, certainly worth reading. Slate listed her on "a different shortlist" in July. They wrote:Maureen Mahoney’s name was added to the short list of candidates Bush is considering to replace Harriet Miers * * *
Mahoney, a 1972 Merrillville High School graduate, said she is pleased she is one of 18 names being considered to fill the seat of Justice Sandra Day O’Connor, who will remain until a replacement is determined.
“I love my job as an advocate, but it is incredibly flattering to be mentioned,” said 51-year-old Mahoney, speaking from her law office in Washington.
She has been described as the female version of Chief Justice Roberts, whom she endorsed just months ago.
Mahoney, who said she still considers herself a Hoosier, lived in Merrillville from the time her family moved from South Bend when she was in the second grade. * * *
Mahoney, who is now a Republican, is a partner in the office of Latham & Watkins in Washington, leading the firm’s constitutional cases. She gained notoriety two years ago when she argued an affirmative action case on behalf of the University of Michigan Law School before the Supreme Court.
She asserted that diversity is incredibly important in a university setting because it helps destroy racial stereotypes. While the court issued a split decision, her argument was viewed as a significant step for affirmative action. * * *
Before entering private practice, Mahoney served as a law clerk for the late Justice William Rehnquist and 7th Circuit Court Judge Robert Sprecher. She also served as deputy solicitor general under Kenneth Starr.
In 1978, Mahoney received her law degree from the University of Chicago law school and her political science degree from Indiana University in Bloomington.
Her achievements in law and academia are what may set Mahoney apart from the other nominees, said Ivan Bodensteiner, law professor at Valparaiso University.
Maureen Mahoney, 50, is a leading appellate litigator for the Washington, D.C., firm Latham & Watkins, where she has represented clients including Union Pacific Railroad Co. and the government of Saudi Arabia. She clerked for Chief Justice William Rehnquist and was one of Kenneth Starr's deputies when he was solicitor general for President George H. W. Bush. During the last Supreme Court term, she won a unanimous reversal of Arthur Andersen's conviction for obstructing justice by destroying documents during the Enron investigation. She also helped successfully represent the University of Michigan Law School in the 2003 case in which the Supreme Court upheld diversity as a rationale for affirmative action. Asked in a 2004 interview with the University of Chicago Magazine why she had taken the case as a staunch Republican, Mahoney said that her personal views weren't relevant but added, "I certainly was very comfortable with Michigan's position."Here is the Universtiy of Chicago Magazine story on "Maureen Mahoney, JD’78."
Posted by Marcia Oddi on Friday, October 28, 2005
Posted to General Law Related
Law - Kentucky grand jurors worry about liability
The Louisville Courier Journal has an interesting story today related to the ongoing inveigations in the hiring practices of the Kentucky governor. Some quotes:
FRANKFORT, Ky. -- The special grand jury investigating hiring practices of the Fletcher administration asked a judge yesterday whether the state would represent jurors if they were sued for their actions.Recall the 10/25/05 ILB entry (2nd half), quoting from a LCJ story that began: "Gov. Ernie Fletcher has asked a judge to tell grand jurors to stop indicting people that Fletcher says he has pardoned in the state hiring investigation."The judge assured them they could not be sued over an indictment, and the prosecutor questioned whether jurors were reacting to efforts by Gov. Ernie Fletcher's lawyers to block indictments. * * *
Yesterday, Rachel Auxier, jury forewoman, asked [Judge] Graham: "If the jury were sued, would we be represented by the state?" * * *
Graham told the jurors they are not generally liable for their actions, but a final report cannot include the names of people who have not been indicted.
The judge also told jurors he would take at least 10 days to rule on the governor's request to instruct them to return no indictments that would be covered by the pardon. If the jury wants to refrain from returning indictments until he rules, Graham said, "That is up to you."
Posted by Marcia Oddi on Friday, October 28, 2005
Posted to General Law Related
Thursday, October 27, 2005
Ind. Decisions - Supreme Court rules on standing, diminution of value, and dimunition as it applies to uninsured motorist coverage
In Indiana Association of Beverage Retailers (IABR), et al. v. Indiana Alcohol and Tobacco Commission, et al. (5/25/04 IndCtApp) the Indiana Court of Appeals reversed the trial court, concluding that "IABR did, indeed, have standing in this case". See 5/25/04 ILB entry here (3rd case). The Supreme Court granted transfer and today sided with the trial court. In the unanimous 6-page opinion, Justice Boehm writes:
The Administrative Orders and Procedures Act sets forth the standing requirements for a person seeking judicial review of an agency’s action. Because the Indiana Association of Bever-age Retailers was not a party to the administrative proceedings before the Indiana Alcohol and Tobacco Commission, the Association did not have standing to seek judicial review of the agency’s action.In a much anticipated decision, Justice Boehm writes in Christina M. Allgood, Individually and on behalf of all others similarily situated v. Meridian Security Insurance Company today:
We hold that an insurance policy that provides coverage for loss limited to the lesser of the actual cash value or the amount necessary to repair or replace the property with other prop-erty of like kind and quality does not obligate the insurer to compensate for diminution in value of the property after adequate repairs have been made.In James B. Dunn, on behalf of himself and others similarily situated v. Meridian Mutual Insurance Company , an Indiana Corporation n/k/a State Automobile Insurance Company, an Ohio Corporation, Justice Boehm writes:
We hold that uninsured motorist coverage of an automobile policy covers the liability of an uninsured motorist to the insured. If the insured’s vehicle is damaged by an uninsured motor-
ist and the insurer chooses to repair the vehicle, the insurer must pay any diminished value of the insured’s vehicle, in addition to any costs of repair up to the policy limits.
Posted by Marcia Oddi on Thursday, October 27, 2005
Posted to Ind. Sup.Ct. Decisions
Law - Interesting position taken by Virigina judge in DWI cases
"Maverick N.Va. Judge Tosses Out DWI Cases That Presume Guilt" is the headline to this story in the Washington Post. It begins:
A Fairfax County judge who believes Virginia's drunken driving laws are unconstitutional has begun dismissing cases, including five DWI cases in a week, and has threatened to throw a veteran prosecutor in jail for arguing with him.Judge Ian M. O'Flaherty made it known in July that he felt Virginia's DWI law unfairly deprived defendants of the presumption of innocence if breath tests showed that they had a blood alcohol content of .08 or higher, levels at which people are presumed to be intoxicated.
"We've been really racking our brains, trying to come up with some solution to it," said Robert F. Horan Jr. (D), the county's longtime chief prosecutor. "It's a crazy situation. He is, for all practical and legal purposes, the Supreme Court of Virginia in these cases, even though, on the Supreme Court, it would take four of him" to issue a majority opinion invalidating a statute. * * *
The judge said in an interview that he recently was made aware of a 1985 U.S. Supreme Court ruling that reversed a Georgia murder conviction because the jury had been told to presume that, if the suspect was "of sound mind," he had the intent to kill.
As it does in all states and the District, Virginia's drunken driving law states that, for anyone with a .08 or higher reading on a breath test, "it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense."
Prosecutors point out that Virginia's law creates a "rebuttable presumption," meaning the defendant has the opportunity to prove it wrong. But O'Flaherty said that wrongly shifts the burden of proof from the prosecution to the defense.
"The Fifth Amendment," said O'Flaherty, 59, "is an absolute protection against requiring the defendant to say or do anything in the course of a trial. . . . The Fifth Amendment means the defendant can sit there, not say or do anything, and at the end of the case say, 'Can I go home now?' "
No other judge in Fairfax -- or elsewhere in Virginia, as far as can be determined -- has joined O'Flaherty. But the judge said some other jurists have told him they agree with him. "I had one judge tell me, 'I'd rule that way, but I don't have the guts to,' " O'Flaherty said. "I told him, 'You should be driving a truck.' "
Prosecutors cannot appeal a case that they have lost at trial at the General District Court level, so they began requesting that charges be dropped before cases went to trial in O'Flaherty's courtroom. O'Flaherty began denying those requests this month.
At least two cases could move toward a state Supreme Court ruling. Both were cases that prosecutors pulled from O'Flaherty's court and then indicted in Circuit Court. One will be tried today in Fairfax Circuit Court.
"This is a public safety issue," said Pat O'Connor, president of the Northern Virginia chapter of Mothers Against Drunk Driving. "My concern is that this judge is putting drunk drivers back on the road, based on a decision that none of his peers have seen fit to agree with."
The judge does have support from some in the legal community.
Ronald J. Bacigal, a criminal law professor at the University of Richmond, said of O'Flaherty: "I think he's exactly right. There are U.S. Supreme Court cases saying you can't relieve the government of proof beyond a reasonable doubt, which is what a presumption does."
Steve Oberman, a Tennessee lawyer and head of the National Association of Criminal Defense Lawyers' DUI committee, said similar arguments about presumptions in the law had been successful in various courts across the country over the years. State supreme courts in Massachusetts and Colorado have ruled exactly as O'Flaherty has on presumptions in drunken driving cases, he noted.
Posted by Marcia Oddi on Thursday, October 27, 2005
Posted to General Law Related
Ind. Law - Another zoning dispute in Crown Point
"Appeal may effect [sic.] rezoning process in Crown Point" is the headline today to this story by Pam Dolan in the Gary Post-Tribune. Some quotes:
CROWN POINT — The city’s Board of Public Works and Safety approved a retainer contract to cover attorney fees to pursue an appeal that could have lasting effects on the city’s rezoning process. Earlier this year, Lake County Judge William Davis decided the city improperly denied a zoning change for Misty Woods Properties, which wanted to build a duplex subdivision at Iowa Street and 113th Avenue.This ILB entry from 8/25/05 has more information on the Heidbreder case.After the Plan Commission sent a favorable recommendation to the City Council to rezone the 100-acre parcel to R-2, the Council voted in February 2004 to amend the request to R-1. In March 2004, the Council voted to approve that amendment.
The suit claims the city violated state statute, which requires that any zoning change initiated by the Plan Commission must be approved by the Plan Commission before it is sent to the Council.
Since the Council never sent the amended zone change request back to the Plan Commission, it failed to act on the initial request in the required 90-day period.
The suit also alleges the developer went before the City’s Board of Zoning Appeals in July 2004.
When the BZA sent an unfavorable recommendation to the City Council for Misty Woods to develop the land as R-2, the Council didn’t vote to deny the request within 90 days.
City Attorney Rich Wolter said at Wednesday’s Board of Works meeting that he felt it was necessary to pursue this appeal since “it will define how the Plan Commission and the City Council will work together on rezone issues.”
“We could potentially face this again ... ,” Wolter said.
The firm of Coots, Henke and Wheeler is handling the case, Wolter said, and recommended to the board that the firm continue with the case. The board approved the contract to retain the firm with a 3-0 vote. Wolter said the appeals process is expected to cost between $6,000 and $9,000.
The city faces a similar suit filed against it by Tim Heidbreder, who was denied special use zoning for a Redi-Mix concrete plant in his Millennium Park industrial subdivision.
After the council granted the special use zoning for another developer wanting to build a Redi-Mix plant on the same site, Mayor Dan Klein vetoed the decision. Heidbreder later decided to build a plant himself and the city refused him a building permit based on the Klein’s prior veto.
Heidbreder’s attorney, Bruce Lambka, maintains that, according to state law, a special use is deemed approved 90 days after the BZA makes its recommendation, unless the city council votes to deny it. The council never took such action.
Posted by Marcia Oddi on Thursday, October 27, 2005
Posted to Indiana Law
Environment - Stories today on Delaware county ag park, Corydon brownsfield grant
"More regulation of ag park proposed" is the headline to this Seth Slabaugh story today in the Muncie Star-Press. Some quotes:
Delaware County Commissioner John Brooke is proposing to amend the newly created agricultural bio-enterprise (AB) zoning ordinance.There is also a side-bar on "What's next."Proponents convinced county commissioners to adopt the ordinance this past summer to allow the creation in Delaware County of the first AB park in the state.
Opponents call the ag park as proposed "a disaster waiting to happen." They have presented evidence that it could generate noise, heavy truck traffic, air pollution and water pollution; produce manure odors and factory odors resembling cat urine; attract rodents, and light up the sky at night.
The city-county planning commission is scheduled to conduct a public hearing next Thursday on a petition to re-zone 806 acres surrounding the community of Shideler from the farming zone to the new AB zone.
"I believe that as it is presently written, the AB zone does not have enough specificity for development and planning purposes," Brooke said. "Presently, the requirements are minimal and not very detailed as to the type and density of development in the area."
The Louisville Courier Journal reports today that:
Corydon has received a state grant to help with an environmental cleanup at the old Keller Manufacturing property.When the century-old furniture plant was sold to the nonprofit Main Street Corydon group 18 months ago, questions about environmental contamination were a key concern.
The Main Street group recognized that they would have to tackle any problems caused by fuel and solvent spills, paint residue and asbestos before the site could be redeveloped.
The town of Corydon received the $43,737 state grant earlier this month. It will allow Main Street Corydon, a downtown revitalization group, to learn what kind of cleanup is needed.
The Indiana Finance Authority's brownfields assessment program awarded the grant to expand on two environmental surveys conducted for Keller by a Jeffersonville engineering firm before the company sold the 12-acre site along North Capitol Avenue.
Posted by Marcia Oddi on Thursday, October 27, 2005
Posted to Environment | Indiana economic development
Ind. Courts - Union County Courthouse renovation moving faster than expected
"Courthouse renovation moving faster than expected" is the headline to a story in the Richmond Palladium-Item. Some quotes:
LIBERTY, Ind. -- Union County's courthouse renovation project is within budget and slightly ahead of schedule.Work on what was expected to be a 12-month project began in July. Construction manager Spike Shepler said he expects that the next projected completion date will be earlier than June 2006, but declined to speculate how much sooner the building could be ready. A new date will be available after the next construction meeting, he said.
Union County vacated the courthouse last June, moving officeholders to four different locations around town. That has likely contributed to the speed at which the work is progressing, county attorney Tom Thompson said.
Posted by Marcia Oddi on Thursday, October 27, 2005
Posted to Indiana Courts
Law - Still more on election law standoff in Kentucky
On Jan. 8th, 2005, the ILB posted an entry that began:
Just because we haven't reported on it since our Dec. 14th entry (which includes links to a number of earlier entries) doesn't mean the election dispute in Kentucky has been resolved. The impending standoff is between the Kentucky legislature and courts, involving a newly elected Kentucky state senator who may or may not have been a resident of Indiana and may or may not therefore be ineligible to take office. It is relevant not only because it involves a neighboring state, but because such election disputes can and have happened here in Indiana, and may occur again.WELL, the dispute continues. A Kentucky Supreme Court hearing is scheduled for Nov. 16, 2005. WAVE 3 TV out of Louisville has an excellent timeline of the dispute, and a story by Janelle MacDonald. Some quotes:
A quiet battle is ongoing in the Kentucky State Senate over who represents the state's 37th district. Almost a year after the election, no one has officially taken over the position. * * * In fact, in a year where political showdowns have drawn lots of attention, it seems sometimes the only people in the 37th district paying attention to who represents it in the Senate are the two women fighting over the seat: Dana Seum Stephenson and Virginia Woodward -- and their attorneys.The Louisville Courier Journal has published two stories on the dispute this month. This 10/10/05 story by Joseph Gerth is headlined: "New session looms with no senator for 37th District: State Supreme Court to hear '04 election case next month." Some quotes:Woodward's attorney, Jennifer Moore, says "Virginia Woodward and myself would never have been able to predict that we would still be talking about this a year later, and it is a real shame for that district."
Stephenson's attorney, Jim Milliman, says "this should have been dismissed from the lower court right from the get-go, and we probably wouldn't be here today."
But we are. A year after the election, the two sides are still fighting in court.
Woodward, a Democrat, says Stephenson -- who got more votes -- isn't qualified because she didn't live full time in Kentucky prior to the election.
Republican Stephenson still claims the Senate has the right to make that judgment.
The 37th district is caught in the middle.
Milliman says "There is a substantial principle here. Dana Stephenson was elected by you, the people of the 37th district. You elected her. You have a right to have her represented."
"The people of the 37th district need representation," Moore says. "This is unbelievable. They went through an entire session without representation."
The people, it seems, are slightly less outraged.
Audrey says "I don't think they know anything about it. If they did, they'd try to change it."
One state legislative session has already passed without anyone representing the residents of Louisville's 37th Senate District. Now it appears another session may start without someone to speak for the district.This LCJ story, also by Joseph Gerth, from 10/17/05, headlined "2 groups want Stephenson to get Senate seat: Organizations file briefs with court," reports:The bitter election dispute over the southwestern Louisville Senate seat has stretched for more than 340 days -- with neither Republican Dana Seum Stephenson nor Democrat Virginia Woodward willing to concede.
The Kentucky Supreme Court is scheduled to hear the case Nov. 16. Although lawyers for both candidates expect a ruling by the end of the year, they said it could be too late for the opening of the 2006 General Assembly session on Jan. 3 if the ruling leads to a special election. * * *
State and national political experts say the case has become one of the most protracted election disputes in recent history.
Chuck Todd, of Roll Call magazine of Washington, D.C., said the longest electoral battle he could remember was a 1994 dispute over an Alabama Supreme Court seat that lasted until Oct. 19 of the next year.
Two national nonpartisan groups have filed briefs with the Kentucky Supreme Court arguing that Republican Dana Seum Stephenson should be allowed to serve in the Kentucky Senate. * * *After nearly a year of haggling, the National Conference of State Legislatures and the American Legislative Exchange Council say it is time to seat Stephenson and move on.
"The people of Senate District 37 have chosen Dana Seum Stephenson to govern them. Their choice has been ratified by the Kentucky Senate. The orders of the Court of Justice have left District 37 unrepresented. That is not how democracy is supposed to work," according to the conference of legislatures brief.
While Stephenson received more votes in the election, Jefferson Circuit Judge Barry Willett ruled that she wasn't qualified to serve because she hadn't lived in Kentucky for the six years prior to the election. She attended college in Indiana, owned a home there, was licensed to drive there and paid in-state college tuition there.
The Kentucky Senate seated her anyway, saying that she had maintained her Kentucky residency because she also continued to own a home in Kentucky, taught school there, coached cheerleading there and attended church there.
Attorneys on both sides of the debate dispute the importance of such briefs, which came as the Supreme Court prepares to hear the case next month. * * *
Peter Wattson, counsel for the Minnesota Senate and one of the lawyers who filed the conference of legislatures brief, said the group occasionally gets involved in legal battles when it believes the power of legislatures could be harmed.
"The citizens in Kentucky may see it as a partisan political battle, but to the 98 other legislative bodies in this country, this is an attack on the structure of government and how they have made decisions over the last 300 years," Wattson said in an interview.
Both briefs argue that legislative independence requires that each house have the authority to determine who is qualified to serve, and the American Legislative Exchange Council brief calls lower-court decisions in Kentucky "a grave threat to the separation of powers."
Although the Kentucky Supreme Court's ruling will deal with a Kentucky case and the Kentucky Constitution, Wattson said it could affect rulings on the U.S. Constitution and virtually all other state constitutions because their provisions are similar to Kentucky's.
The briefs quote English common law, the Federalist papers and court decisions from other states in making their cases. The conference of legislatures brief says that Willett erred in his ruling that Stephenson was not qualified to serve.
Posted by Marcia Oddi on Thursday, October 27, 2005
Posted to General Law Related
Ind. Law - IACLU awards Evansville's John Blair "liberties" award
The Evansville Courier& Press reports today, in a story by Maureen Hayden, that "when the Indiana Civil Liberties Union chose Blair for its annual award honoring his contributions to the defense of civil liberties, Blair was delighted." More:
Last week, Blair was awarded the ICLU's Sigmund Beck Award and recognized for his defiance of a "no-protest" zone that was later found to be unconstitutional. Blair was arrested for his actions, but a federal judge's ruling vindicated him and resulted in the city of Evansville having to pay him damages for violating his First Amendment right to free speech.For a number of earlier ILB entries on Mr. Blair, check here."Without brave citizens like John Blair who are willing to stand up for their rights, even to the point where they are wrongfully arrested, the Bill of Rights would be a hollow document," declared Fran Quigley, executive director of the ICLU. "All of us who enjoy the protections of the First Amendment owe John a debt of gratitude for bravely defending that right."
Blair became an ICLU client after he was arrested by Evansville police in 2002 for stepping inside a no-protest zone set up outside a fundraising appearance by Vice President Dick Cheney.
Blair sued the city and won. U.S. District Court Judge Larry J. McKinney, a conservative Republican appointee to the bench, said the no-protest zone, set up on the orders of the Secret Service, used the cover of security concerns to quell political dissension.
Posted by Marcia Oddi on Thursday, October 27, 2005
Posted to Indiana Law
Ind. Gov't. - License branches to be open this Monday, Nov. 7th, although it is an election "off-year"
A story by Niki Kelly in the Fort Wayne Journal Gazette today reports:
License branches around the state will be open Nov. 7 – a day when they are usually closed – because of just three small municipal elections the next day and a new law requiring voter identification.[More] The Indianapolis Star posted this AP story this afternoon.Bureau of Motor Vehicles branches are not traditionally open Mondays. But the General Assembly passed a law requiring Hoosiers to bring state-issued photo ID to the polls before they can vote. A caveat in the bill is a requirement that all full-service license branches be open the day before an election in case people need to get an ID at the last minute. The hours are also extended until 8 p.m.
In addition, the branches must open early on Election Day – Nov. 8. The overall cost for the extra staffing on those two days is about $125,000, according to the BMV. This year is generally an off-election year, but the branches must open because there are three small municipal elections occurring around the state. Cambridge City in Wayne County and Montezuma in Parke County have town council races on the ballot. Winfield in Lake County is having a special election on a public question.
Posted by Marcia Oddi on Thursday, October 27, 2005
Posted to Indiana Government
Ind. Courts - Longtime federal judge Jesse Eschbach, 84, dies
"Longtime federal judge Jesse Eschbach, 84, dies" is the headline to a story today in the Fort Wayne Journal Gazette. Some quotes:
Jesse E. Eschbach, a Warsaw native who was appointed to a federal judgeship in Fort Wayne by President Kennedy and to the U.S. Court of Appeals by President Reagan, died Tuesday. He was 84.When Eschbach retired in 2000, he had served 38 years on the federal bench. He was widely praised as a scrupulously fair and impartial judge who had a vast knowledge of the law and was always thorough and well-prepared.
He set high standards for himself and for the lawyers who appeared before him, said Senior U.S. District Judge William C. Lee. * * *
Born in Warsaw on Oct. 26, 1920, Eschbach was a Navy veteran, serving aboard a mine sweeper in the South Pacific during World War II. He would have turned 85 Wednesday.
He graduated from the Indiana University School of Law in 1949, and joined the Warsaw law firm that would become Graham Rasor Eschbach and Harris. He served for a time as the Warsaw city attorney and as a deputy prosecutor for Kosciusko County.
Kennedy appointed Eschbach to the federal district judgeship in Fort Wayne in 1962. In 1981, with recommendations from Sen. Richard Lugar and then-Sen. Dan Quayle, Reagan appointed him to the 7th U.S. Circuit Court of Appeals, which serves Indiana, Illinois and Wisconsin.
Years later, Eschbach told the Weekly Standard that Reagan had personally phoned him from the Oval Office to ask him to join the appeals court. * * *
One of Eschbach’s most high-profile cases involved Earl L. Butz, former secretary of agriculture under Presidents Nixon and Ford and a dean emeritus at Purdue University. In June 1981, Eschbach sentenced Butz to 30 days in federal prison and nearly five years’probation for tax fraud. Butz admitted that in 1978, he reported income of $97,814 when in fact his taxable income was $254,928.
In 1987, Eschbach assumed senior status on the court, which allowed him to handle fewer cases if he wished, but he continued to hear many cases until about a year before retiring.
“He benefited greatly from his many years as a district court judge, which gave him insights that those of us appointed directly to the appellate bench are denied; wrote Judge Richard Posner, Eschbach’s longtime colleague on the court of appeals. “And ego, politics, and personal rivalry never marred his performance of the judicial function. Truly one of the outstanding federal judges of his time.”
In December 2000, Eschbach was honored at a retirement ceremony at the E. Ross Adair Federal Building and U.S. Courthouse, where his judgeship began 38 years earlier. “I frankly am overwhelmed,” Eschbach said of the ceremony, which drew dozens of friends and colleagues. “It is richly undeserved.”
Posted by Marcia Oddi on Thursday, October 27, 2005
Posted to Indiana Courts
Wednesday, October 26, 2005
Id. Decisions - Noble Roman's v. Pizza Boxes is reversed
In Noble Roman's v. Pizza Boxes, issued today by the Court of Appeals, Judge Najam writes:
Noble Roman’s, Inc. appeals from the trial court’s entry of summary judgment in favor of Pizza Boxes, Inc. in this breach of contract action. Noble Roman’s presents a single dispositive issue for our review, namely, whether the trial court erred when it did not enter summary judgment for Noble Roman’s. We reverse and remand with instructions. * * *Judge Riley concurs. Judge Sullivan concurs in part and concurs in result in part with separate opinion. He disagrees that "the arrangement evidenced by the November 1 letter" was a requirements contract. But he concludes:Initially, we note that Pizza Boxes’ complaint suggests that the November 1, 2002 letter is a purchase order, that is, “[a] document authorizing a seller to deliver goods with payment to be made later.” See BLACK’S LAW DICTIONARY 1248 (7th ed. 1999). But the plain and ordinary meaning of the letter shows that it is a requirements contract. See Ind. Code § 26-1-2-306. The letter is not an order for 2.5 million boxes but, on its face, contemplates the possibility that not all 2.5 million boxes would be manufactured. Thus, it is not a purchase order. And despite the inclusion in the letter of a specific estimate of quantity, it is clear that there was no meeting of the minds on how many boxes Pizza Boxes would ultimately produce under the requirements contract.
I agree that the summary judgment in favor of Pizza Boxes was erroneous except as to unpaid printing prep charges and that subject to the exception for prep charges, summary judgment was appropriate in favor of Noble Roman’s with respect to the agreement represented by the November 2001 letter as confirmed by Mr. Gilbert. 6 I venture no opinion with respect to whether Noble Roman’s had actual or apparent authority to enter into a contract on behalf of Multifoods nor whether Multifoods might have been liable to Pizza Boxes for the boxes actually manufactured.In Godby v. Whitehead:
Godby brought suit against Daniel K. Whitehead for legal malpractice. Godby alleged that Whitehead negligently failed to present a claim that Godby was denied the effective assistance of appellate counsel in his petition for post-conviction relief. In response, Whitehead filed a Trial Rule 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. The trial court granted Whitehead’s motion and dismissed the complaint with prejudice. * * * We reverse and remand.
Posted by Marcia Oddi on Wednesday, October 26, 2005
Posted to Ind. App.Ct. Decisions
Ind. Courts - Potential jury duty scam
The Supreme Court has just issued a press release warning that:
A telephone scam that attempts to gather personal information by claiming the person failed to report for jury duty has been reported by several courts around the country, the Supreme Court announced today..The reports note that the callers represent themselves as court employees, assert that the person has failed to report for jury duty, and asks for personal information such as social security number and birth date using the threat of fines or other court action.
“We have not heard of this happening in Indiana, but it is important for everyone to be aware of the potential scam to protect their information. Court employees initially contact citizens for jury duty in writing and will not ask you to provide sensitive personal or financial information over the telephone,” said Chief Justice Randall T. Shepard
If anyone receives a call regarding the failure to report for jury duty and suspects it is not legitimate, they should contact the police immediately.
Posted by Marcia Oddi on Wednesday, October 26, 2005
Posted to Indiana Courts
Ind. Courts - Plan to link 400 courts takes a step
In late September the Indiana Supreme Court's Judicial Technology and Automation Committee (JTAC) announced that it would terminate its contract with Computer Associates and that "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." (See ILB entries from 9/26/05 and 9/29/05.)
On Monday (Oct. 24th) the JTAC website posted an announcement. It states, in part:
In order to determine the best way to proceed, the Court has decided first to gather information systematically on recent developments in case management systems in general and case management systems technology in particular. In the past month, the staff of the Court's Judicial Technology and Automation Committee (JTAC) has attended the national Court Technology Conference in Seattle, and hosted a day-long briefing by the National Center for State Courts' technology expert.What does this mean? It may mean that JTAC is still looking for the one perfect CMS (case management system), to impose on all the counties.In addition, the Court has instructed the staff to invite trial court case management system vendors to demonstrate their systems to the staff during the next several weeks. These demonstrations are for information purposes only and are not part of any procurement process. The staff has been directed to invite all vendors that have trial court case management systems [CMS] installed in Indiana courts and, in addition, other vendors known to the staff to have case management systems installed statewide in other states. Vendors that participate will receive no preference in any future procurement; vendors that do not, no penalty.
Any vendor not invited that wishes to make a presentation should contact Mary L. DePrez, Counsel and Director of Trial Court Technology, to discuss its interest (mdeprez@jtac.in.gov or 317-234-2604). All contacts by vendors or all contacts made on behalf of vendors should be directed to Mary L. DePrez and not to any other individual associated with the project.
Following the conclusion of the demonstrations, the Court will announce whether it will begin a formal procurement process or take other steps toward achieving its statewide case management system vision.
Or it may mean that JTAC is willing to take a look at the range of case management systems now in place, or that could be used, in various of the Indiana counties, some more appropiate for one county than another, providing that each of these CMSs is able to provide the standardized output products to be defined by JTAC.
The latter is the preferable approach in the view of a number of people, permitting flexibility and room to grow. In that case, however, it would appear that JTAC would also be inviting presentations and demontrations from vendors that have techological solutions for the "second layer" -- tieing together and unifying the county courts' information output, and providing court and public access via the internet.
Posted by Marcia Oddi on Wednesday, October 26, 2005
Posted to Indiana Courts
Courts - Justice Rucker's son runs for Ohio judicial seat
The Cincinnati Enquirer reports today:
Hamilton County Municipal Court District 3, to a political scientist, is the most interesting of the lot in terms of its underlying demographics. Extending across north-central Hamilton County, it includes Mount Healthy, Carthage, North College Hill, Greenhills, Forest Park, Silverton, Amberley Village , Arlington Heights, Golf Manor, Wyoming, Lockland, Roselawn and part of Springfield Township.This was originally drawn as a minority influence district - one where African-American voters would have a strong and perhaps decisive voice in any election. Since the original boundaries were drawn in 1993 their numbers have grown. But the district still has a Republican edge, according to the region's political pros.
On Nov. 8 voters in District 3 will make decisions about both of its judgeships. Incumbent David Stockdale, a Republican incumbent, is running for re-election to a full term against Fanon Rucker, a Democrat who ran a strong campaign in last year's tumultuous county prosecutor race. The other contest finds a recently-appointed Republican, Kendal Coes, competing against attorney Ted Berry for an unexpired term. Three of the four candidates are African American. All four are well-qualified. * * *
Rucker, 34, the son of a justice on the Indiana Supreme Court, is a 1993 graduate of Hampton University and a 1996 graduate of UC's law school. He served as an assistant city prosecutor from 1996-2000; since then he has been in private practice with two downtown law firms and serves as law director in Lincoln Heights and as prosecutor for the village of Woodlawn.
On the stump, Rucker, a Roselawn resident, has emphasized his desire to make the judicial process more transparent to those coming before the court. He said he would, if elected, increase the number of written opinions.
The Cincinnati Bar Association, after surveying its members, endorsed both Stockdale and Rucker. It said of Rucker in part, that he "has received uniformly positive ratings from attorneys in Cincinnati for his intelligence, skill and demeanor....the committee believes Mr. Rucker would make an excellent judge.'' Stockdale, the committee said, "has a demonstrated record as an excellent judge. He received high marks for his intelligence, knowledge of the law and his courtroom presence."
Posted by Marcia Oddi on Wednesday, October 26, 2005
Posted to Indiana Courts
Environment - More on land application in Porter County
Updating this 10/20/05 ILB entry titled "Biosolids confrontation in Porter County involved call to State Police" is this story today in the Munster (NW Indiana) Times, headlined "Valpo wants to discuss biosolids program with county: City concerned for future of land application program." Sme quotes:
VALPARAISO | Before the biosolids hit the fan, the city's Utilities Board wants to open a dialogue with the Porter County Commissioners over the use of treated waste as a fertilizer.City Utility Director John Hardwick told the board at its meeting Tuesday meeting, "Many farmers are interested and happy to receive our biosolids, and we've never had a complaint that our program caused a problem."
The commissioners discussed the possible regulation of the practice last week after Commissioner Carole Knoblock said she is opposed to it. Knoblock said she followed a truck carrying the treated waste from the Valparaiso sewage treatment plant to a Morgan Township farm recently. * * *
Hardwick said the city has a permit from the Indiana Department of Environmental Management that is good for another couple of years, and the process is approved by the U.S. Environmental Protection Agency. He said half the biosolids produced by waste treatment plants are spread on farm fields. * * *
"I have heard from people that Valparaiso has one of the best biosolid land application programs in the state. I don't think there is a basis for the commissioners' concerns, and we've had no health-related concerns with the program." * * *
Hardwick said he didn't think the county's actions would affect the city's program in the near term, but he is concerned about how it might affect the program in the future. It costs four to six times as much to dump the biosolids in a landfill as it does to spread it on local fields. The farmers are paid to accept the waste product.
Posted by Marcia Oddi on Wednesday, October 26, 2005
Posted to Environment
Ind. Gov't. - State relief for property taxes could be ending
More news on the property tax front today from the Fort Wayne Journal Gazette, in this story by Niki Kelly headlined "State relief for property taxes could be ending." Some quotes:
The state of Indiana could further retreat from its role in property taxes – but take over key expenses currently paid by counties – under a proposal endorsed Tuesday by a panel of lawmakers and local elected officials.The statement adopted by the Local Government Efficiency and Financing Study Commission urges the General Assembly to investigate the elimination of the state’s obligation to pay property tax replacement credits.
The state currently gives this money to local governments in order to keep local property taxes down. It used to be a percentage of the levy – which was dependent on local government spending. So every time local spending went up, so did the state’s obligation in property tax relief.
In the last session, lawmakers approved a cap on the property tax replacement credit as a way to free up money for the state budget. * * *
County officials have claimed for years that they have no control over the escalation of court costs, which should be borne by the state anyway.
Ideally the switch would be revenue-neutral in at least two-thirds of the Indiana counties, according to the statement adopted by the panel. But estimates from the Legislative Services Agency show that wouldn’t be the case in many urban areas. For instance in Allen County the state would save about $30 million in property tax replacement credits.
They would then pick up $28 million worth of welfare and court costs, which would no longer be levied on local property tax bills.
Posted by Marcia Oddi on Wednesday, October 26, 2005
Posted to Indiana Government
Tuesday, October 25, 2005
Ind. Courts - Jackson County Superior Court Judge Frank Guthrie to retire
WCSI in Columbus is reporting this afternoon:
A Jackson County Judge has announced his retirement to "pursue other opportunities." In a letter dated Friday to Indiana Governor Mitch Daniels, Judge Frank Guthrie said he intended to retire from his position as Jackson County Superior Court Judge effective December 3 and requested the governor to have his staff let Guthrie know if there was anything else he needed to do. In his announcement, Guthrie said he was "honored and grateful that the voters of Jackson County have allowed me to serve our community for 30 years."Interestingly, the Seymour Tribune reported on Friday, Oct. 21:
Indiana’s state courts commission agreed Thursday to recommend a third court for Jackson County.It was one of two accepted by the commission, which each summer reviews proposals concerning the state’s courts, including whether counties should add courts or magistrates. Two other requests were rejected.
“All in all, I was greatly pleased that with only 50 percent of the requests being approved that we made the cut,” said Bill Bailey, president of the Greater Seymour Chamber of Commerce. Bailey, a former state representative from District 66, attended Thursday’s courts commission meeting in Indianapolis.
“I’m very appreciative of the local efforts by the county council, county commissioners, school boards, the city council and town councils,” Bailey said.
He is part of a coalition of local residents and organizations garnering support for the third court, formed as a result of a community audit conducted last year through a grant from Lilly Endowment and the Indiana Association of United Ways and Jackson County United Way’s 4 Community Partnership.
Jackson Circuit Judge Bill Vance and Superior Judge Frank Guthrie launched the effort for a third court about a year ago. They contend their caseloads are slowing the judicial system and delaying justice for county residents.
Thursday’s approval means the commission will recommend in a report to state lawmakers that a new court is needed here. The report would be used as a springboard for lawmakers to submit bills that would generally be placed into an omnibus courts bill, Bailey said.
Posted by Marcia Oddi on Tuesday, October 25, 2005
Posted to Indiana Courts
Law - Reports on court stenographers; courtroom artists
Today in its "It's a Living" column, the Wall Street Journal (paid subscription only) reports on court stenographers, using Vioxx trial court reporter Regina Tell as the centerpiece. It is on the bottom of the first page of the Marketplace section.
I also came across this item from a Business Week Online story:
Horn grilled Tyberg over why he didn't tell jurors about medical records, from 1981 and 2001, in which cardiologists said there was no such family history. The latter, from Humeston's hospital visit the night of his Sept. 18, 2001 heart attack, said his mother had cancer.The Washington Post had this long and very entertaining report last week on a mother-daughter team of courtroom artists. A quote:"That doesn't say she didn't have a heart attack," Tyberg said.
"They didn't say she did, either," said Horn.
The back-and-forth was one of several testy, rapid-fire exchanges in morning testimony, which at one point prompted the court stenographer to ask Superior Court Judge Carol E. Higbee to stop Tyberg and Horn from talking at the same time.
On any given day, the pair are scurrying somewhere through the New York City judicial system, or taking a field trip to courts in other states if the case has a high enough profile. (They were in Alexandria for the trial of Zacharias Moussaoui.) You'll know them by their binoculars, which they train on e