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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.

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.

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:
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.

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.

The Tribune also had a long story Saturday about retiring Jackson Superior Judge Frank W. Guthrie. Some quotes:
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.

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.

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."

"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.

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.

Here is the ILB entry from over a year ago, titled "Barrel and drum recycler allegedly abandons site."

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. * * *

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.

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:
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.

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."

A second article gives a brief biography of each of the five Indiana Supreme Court justices.

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.

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.

Here is how the 29-page opinion in Alaska Civil Liberties Union v. State (10/28/05) begins:
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.

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.

For another take on this, see this ILB entry from 10/27/05.

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 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 Fort Wayne Journal Gazette also has a story, by Niki Kelly. Some quotes:
The primary change is to integrate the two registries: the Indiana Criminal Justice Institute and the Indiana Sheriffs’ Association.

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.

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.

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.

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.
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.

[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 81,000.00
There 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.

"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.

See also yesterday's ILB entry on Ms. Mahoney.

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.

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.

The Louisville Courier Journal has an AP story by Ashley M. Heher that begins:
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.

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."

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."

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.

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 Indianapolis Star website has this story by Richard D. Walton. Some quotes:
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.

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.

Right. Let's all file public document requests just for the heck of it!

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.

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.

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.

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. * * *

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.

In Philip Wayne, M.D. v. Norma M. Begley, Judge Baker writes:
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.

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.

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, 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.

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."

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."

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.

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.

This ILB entry from 8/25/05 has more information on the Heidbreder case.

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.

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."

There is also a side-bar on "What's next."

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.

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."

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:
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.

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.

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:
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.

"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.

For a number of earlier ILB entries on Mr. Blair, check here.

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.

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.

[More] The Indianapolis Star posted this AP story this afternoon.

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. * * *

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.

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:
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.

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.

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.

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.

"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.

The Washington Post had this long and very entertaining report last week on a mother-daughter team of courtroom artists. A quote:
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 everyone they sketch, and by their fluorescent hair -- "We're no longer natural blondes," chirps Andrea -- and by their matching black-leather pants, a fashion gambit you don't encounter often in state and federal court.

Posted by Marcia Oddi on Tuesday, October 25, 2005
Posted to General Law Related

Law - Patronage/merit hiring in Chicago and Kentucky in the news again

Chicago. A story today in the Chicago Tribune reports:

The Daley administration should get another chance to challenge a long-standing court decree restricting patronage hiring at City Hall, a federal appeals court ruled Monday.

The 7th U.S. Circuit Court of Appeals ordered a lower court judge to reconsider the validity of the Shakman decree, which blocks the city from basing hiring decisions on the political affiliations of job applicants.

The three-judge panel found that more recent legal cases and other new circumstances should be taken into account by the court in determining whether the 1983 decree should stand.

The ruling comes as federal prosecutors continue their investigation into hiring fraud at Mayor Richard Daley's City Hall and a court-appointed monitor reviews the city's personnel practices. * * *

Shakman's fight for merit-based hiring at City Hall goes back more than 35 years, to the era of the current mayor's father, Mayor Richard J. Daley.

Shakman was a candidate for the 1970 Illinois Constitutional Convention when he and one of his backers sued the city. They alleged that city workers were not free to campaign for Shakman and other independent candidates because they owed their jobs to the Cook County Democratic Party's political machine.

Shakman won a 1972 federal court decree that prohibits the city from firing or promoting public employees based on politics. The 1983 decree forbids city officials to factor political considerations into hiring for almost all job openings.

The only exceptions to the decrees are for about 1,000 policy-making positions on the city's payroll of about 38,000 workers. * * *

U.S. Atty. Patrick Fitzgerald's office has alleged that the hiring fraud in the Daley administration spanned the last 12 years and involved jobs in at least four of the biggest city departments. Prosecutors declined to comment Monday.

The Shakman ruling could hurt the government's case, said an attorney for former Daley aide Robert Sorich, who is accused of directing patronage fraud. "This is a significant ruling as it affects the underlying basis of the criminal charges," said Sorich's lawyer, Thomas Anthony Durkin.

The Tribune story includes this neat summary:
THE SHAKMAN DECREE: Attorney Michael Shakman's lawsuit led to a 1983 federal consent decree that bans most patronage hiring. The Daley administration has fought the decree, saying it is too costly to implement and is no longer needed.

MONDAY'S RULING: A federal appeals court sent the case back to a lower court to reconsider whether the decree is still valid. [Here it is - Shakman v. Chicago (7th Cir., 10/24/05)]

WHAT'S NEXT: Shakman says the ongoing federal criminal probe of political hiring at City Hall will only strengthen his case. The Daley administration says it will cooperate with a federal hiring monitor while trying to void the decree.

Kentucky. In Kentucky the investigation into whether the Governor's hiring practices violated the state's merit hiring laws continues. The ILB has had a number of entries on the Kentucky problems. In an 8/30/05 entry, the ILB quoted from a Louisville Courier Journal of that date: "Gov. Ernie Fletcher used the power of his office yesterday to pardon nine current or former members of his administration who were indicted in an investigation of alleged illegal hiring."

Today's Louisville Courier Journal story on the matter begins:

FRANKFORT, Ky. -- 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.

Fletcher asserts in a motion filed yesterday in Franklin Circuit Court that his Aug. 29 pardon applies to anyone other than himself who might be indicted in the investigation for actions through that date.

He maintained that four indictments issued since then illegally infringe on the governor's broad power to pardon.

"In order to maintain the separation of governmental powers between the Judicial and Executive Branches, this Court must now personally admonish the special grand jury that it is unconstitutional to purport to indict persons encompassed by the Governor's amnesty," said Fletcher's request.

Attorney General Greg Stumbo, whose office initiated the investigation and presents evidence to the jury, said he will fight Fletcher's request.

Asked whether a judge can legally order a grand jury to not issue indictments, a spokeswoman for Stumbo's office said that such a request appears to never have been tested.

"A judge gives a grand jury a charge and gives it guidance, but this office is unaware of any case where a judge tells a grand jury not to return indictments," said Stumbo spokeswoman Vicki Glass.

Posted by Marcia Oddi on Tuesday, October 25, 2005
Posted to General Law Related

Ind. Decisions - Court of Appeals rules a speeder has a right to trial by jury; ruling re DNA samples

In Cunningham v. State, an 8-page opinion issued today by the Court of Appeals, a pro se case, Judge Barnes writes:

Elliott Cunningham appeals the trial court’s judgment finding that he committed speeding, a Class C infraction. We reverse and remand.

The dispositive issue we address is whether the trial court properly denied Cunningham’s request for a jury trial. * * *

On November 18, 2004, Cunningham filed three motions on his own behalf: a request for speedy trial, a request for discovery, and a request for jury trial. On December 7, 2004, Cunningham appeared, pro se, for a bench trial in this matter. At this time, Cunningham again requested a jury trial. The trial court denied his request. On December 13, 2004, the trial court entered a decision in favor of the State and ordered Cunningham to pay fines and court costs in the amount of $96.50. This appeal ensued. * * *

Cunningham argues that the trial court violated his right to a jury trial in a civil case as protected by Article I, Section 20 of the Indiana Constitution. This provision provides: “In all civil cases, the right of trial by jury shall remain inviolate.” * * *

Our state Supreme Court has cautioned, “The right to a jury trial holds a special place in the system of justice, and we guard it against encroachment.” * * * However, that right is not absolute. There exists long-standing precedent in Indiana providing that our constitution protects one’s right to a jury trial only in actions where the right existed at common law. * * *

Justice Boehm recently supplied a thorough analysis of a party’s right to a jury trial as provided by Article I, Section 20 and enforced through Indiana Trial Rule 38(A).2 Midwest Sec. Life Ins. Co. v. Stroup, (Ind. 2000) (Boehm, J., concurring, in which Dickson, J., joins). Justice Boehm states, “If the cause of action existed on June 18, 1852, then this issue is decided by history.” Id. at 169. Where the cause of action at issue was not in existence on this date, the crucial inquiry is whether the cause of action at issue is equitable or legal in nature as those terms were used in 1852. Id. at 169-70. The inquiry should not focus solely on whether the cause of action at issue existed at common law. Id. “If an action is essentially legal in nature, a jury demand must be honored.” * * *

Because a speeding infraction can result in a violator being ordered to pay a fine, an infraction is analogous to an action for money damages, a historically legal action, and dissimilar from equitable actions. * * * [I]n 1852, actions criminal in nature would necessarily have been legal. In such actions, a jury trial demand must be honored. Midwest Sec. Life Ins. Co., 730 N.E.2d at 169. We therefore hold that the trial court improperly denied Cunningham’s request for a jury in violation of Article I, Section 20 of the Indiana Constitution.

In a second case today, Sharp v. State, a 13-page opinion, Judge Baker concludes:
Specifically, Sharp claims that the trial court erred in ordering Sharp to provide a DNA sample because there was “no probable cause or reasonable suspicion” for the trial court to have ordered the sample. Sharp also argues that his trial counsel was ineffective for failing to object to the use of the DNA evidence at trial. Concluding that Sharp has failed to show that his Fourth Amendment rights under the United States Constitution were violated with regard to the DNA sample, and further observing that Sharp’s trial counsel was not ineffective, we affirm the judgment of the trial court.

Posted by Marcia Oddi on Tuesday, October 25, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court rules on composition of over-the-counter or prescription drug

In a 7-page opinion issued today, Reemer v. State, Judge Boehm writes:

We hold that expert witnesses or laboratory results are not required to prove the composition of an over-the-counter or prescription drug when it is found in an unaltered state and its weight and contents are described in the required labeling. * * *

Shepard, C.J., and Dickson and Sullivan, JJ. concur. Rucker, J., concurs in Part I and concurs in result in Part II without separate opinion.

Posted by Marcia Oddi on Tuesday, October 25, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - 7th candidate for Judge Pfaff's seat

Updating yesterday's ILB entry that there were six candidates for Judge Pfaff's seat is this story today from the Elkhart Truth that reports:

ELKHART -- A seventh person met last week's deadline to apply for the judge post in Elkhart Superior Court 1, a member of the governor's staff said Monday.

Richard Rogers, a private attorney in Middlebury, is the seventh person in the running to fill the vacancy left by Benjamin Pfaff's resignation last month, said Stephanie Kalogeros of the governor's office.

Gov. Mitch Daniels will appoint a replacement for Pfaff, and his staff is interviewing the candidates, starting this week.

Rogers joined Steve Bowers, Larry Meteiver, Evan Roberts, Tom Sanders, Fay Schwartz and Charles Wicks as a candidate for the position.

They were all named Friday, after the Thursday afternoon deadline. Kalogeros, who handled the application process, said Rogers' application made it to the governor's office in time, but that she didn't see it until Monday.

Posted by Marcia Oddi on Tuesday, October 25, 2005
Posted to Indiana Courts

Courts - Illinois appeals court rules judges may keep their papers secret

"Appeals court rules judges may keep their papers secret" is the headline to this story today in the Chicago Sun-Times. Some quotes:

The justices of the Supreme Court of Illinois have an "absolute privilege" to keep secret any memos and documents they circulate among themselves, a state appellate court ruled Monday.

The ruling comes as part of a libel suit Chief Justice Bob Thomas filed against the Kane County Chronicle and columnist Bill Page, accusing Thomas of misdeeds in the disciplining of former Kane County State's Attorney Meg Gorecki.

To defend himself, Page argued he needed to see documents dealing with deliberations among the seven justices about how harshly to discipline Gorecki and whether, as Page argued in his columns, Thomas' appointment of judges played any role.

But the six other justices besides Thomas argued that turning over documents and submitting to interviews by Page's lawyers would violate their right to have candid, behind-closed-doors discussions about cases.

The justices of Chicago's First District Appellate Court -- which heard the case after the justices of Thomas' home 2nd District recused themselves -- agreed. * * *

The only issue on which the judges did not win completely is that they must provide Page a description of the documents and communications not disclosed and a statement as to the privilege claimed.

It appears that the Illinois court system is rather slow in posting its opinions; I can't locate it yet.

Posted by Marcia Oddi on Tuesday, October 25, 2005
Posted to Indiana Courts

Ind Gov't. - Jumbo polling places in Colorado studied by Hoosiers

The Munster (NW Indiana) Times has a story today that begins:

For the most radical idea in elections since electronic voting, officials are looking west.

Porter County Clerk Dale Brewer will travel to Fort Collins, Colo., next week with Indiana Secretary of State Todd Rokita and other state and local election officials to learn about the concept of voting centers, which are essentially jumbo polling places.

In 2003, Larimer County, Colo., Clerk Scott Doyle introduced the voting center model to reduce the number of polling places and help out voters confused about where they should vote. Under the new model, people can go to any voting center in the county to cast their ballots.

The county went from 182 polling places in the 2000 general election to 31 voting centers in the 2004 general election, which saved the county money on renting extra facilities and paying for election judges to staff them. It is also more likely that the large voting centers will be accessible to people with disabilities.

Posted by Marcia Oddi on Tuesday, October 25, 2005
Posted to Indiana Government

Ind. Law - Trademark law applies to high school logos

Nat Newell has an interesting story that begins on page 1 of the Indianapolis Star sports pages today. The headline: "Logo copy cats: High schools are learning that, when it comes to symbolism, imitation can be an expensive form of flattery." A quote:

[C]ollege and pro teams are making a stronger effort to enforce their trademarks and high school programs are discovering that imitation -- and its litigation -- isn't always the sincerest form of flattery.

"It's becoming more of an issue (due to) the Internet (as) high school and club teams' Web pages make (the logos) more visible," said Jack Landrigan, client and legal services manager for the Michigan-based Licensing Resource Group.
According to Landrigan, the issue arises once or twice a month, double the volume of five years ago. He is currently working on behalf of Arizona State to change Pike High School's logo.

Pike has used a logo of a smiling devil with a pitchfork -- known as Smiley -- for approximately 20 years. But it received a cease and desist order from Arizona State in March because of the similarity to the Sun Devils' Sparky, and plans to unveil a new logo next year.

Organizations are required to enforce their trademarks or they can lose the rights to them, allowing anyone to sell merchandise with the logo on it without providing the team any revenue or control over the products. Pike has been working with Arizona State to phase out Smiley/Sparky.

Lawrence North football coach Tom Dilley took a preemptive approach:
"We had three or four different Wildcats around school. We wanted a Wildcat, but something we could all use and get behind."

Dilley had Healy Awards adapt Kansas State's Wildcat and brought it to athletic director Grant Nesbit. Nesbit contacted the university and signed a two-year contract for $1 that allows Lawrence North to use the logo on uniforms, stationary, signs and equipment. A scholarship program at Kansas State receives 8 percent of the wholesale price from any apparel that Lawrence North sells with the logo.

"We're proud to have our mark in other states," said Tami Breymeyer, Kansas State's associate director of licenses, who noted that Lawrence North is one of 63 schools in 22 states using the logo, including South Vermillion in Clinton, Ind., and Kankakee Valley in Wheatfield, Ind. All told, KSU makes approximately $2,000 a year from the program.

"Our philosophy is, we don't want to be the big, bad bully. It's very costly to change a logo; we don't want to create a hardship on a program and it's a great mark," Breymeyer said.

Posted by Marcia Oddi on Tuesday, October 25, 2005
Posted to Indiana Law

Environment - More on hexavalent chromium in Jackson County

Today's lead editorial in the Indianapolis Star urges: "The state should emulate the urgency and diligence demonstrated by residents fearful of hazardous waste." The piece follows the Star story yesterday (access ILB entry here) reprting that "State environmental regulators are investigating whether sludge containing a potentially harmful industrial pollutant was left behind on a farm from which it was supposed to have been removed decades ago."

Posted by Marcia Oddi on Tuesday, October 25, 2005
Posted to Environment

Ind. Courts - Former defense attorney resigns his legal license

"Former defense attorney resigns his legal license" is the headline to a brief story today in the Indianapolis Star. Some quotes:

The Indiana Supreme Court on Monday accepted the resignation from the bar of Stephen R. Haney, a former Marion County deputy prosecutor * * * Haney, who will no longer practice law in Indiana, told the Supreme Court that the allegations were true and that he could not successfully defend himself if the investigation proceeded.

Posted by Marcia Oddi on Tuesday, October 25, 2005
Posted to Indiana Courts

Ind. Decisions - "Searches: Close call, but right" is the editorial in the Fort Wayne Journal Gazette

"Searches: Close call, but right" is the headline to an editorial today in the Fort Wayne Journal Gazette about the Oct. 20th Indiana Court of Appeals ruling in State of Indiana v. Scott Crabb (see ILB entry here). The editorial concludes:

Ingredients used to cook methamphetamine include drain cleaner, ammonia and battery acid. A study of meth lab surfaces by the National Jewish Medical and Research Center in Denver found high concentrations of hydrochloric acid and ammonia gas, which are severe respiratory and eye irritants. And meth labs have been known to blow up.

It’s hard to believe the state Supreme Court would believe that the circumstances in this case weren’t enough for the state police to do what it did. But police and prosecutors should heed what was written by the panel. While the court acknowledged that methamphetamines are a plague on communities, “we are not ready to draw a bright line which would allow officers to enter a home without a warrant based solely on the smell of ether.”

Posted by Marcia Oddi on Tuesday, October 25, 2005
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Property tax hike coming

"Property tax hike coming: State budget changes, rising costs create ‘perfect storm’ for increases" is the headline to an AP story today by Mike Smith, published today in the Fort Wayne Journal Gazette and several other state papers. (Part 1 was published yesterday.) Some quotes from today's story:

“Hoosiers will feel it. I wish it wasn’t so,” state Rep. Jeff Espich of Uniondale, the fiscal leader for House Republicans, told the full House on the final day of the last legislative session.

The expected increases stem from a chain of events, including changes in the state budget and enhanced state efforts to protect children, that Espich calls “the perfect storm.” * * *

How much more property owners pay will depend on where they live, the makeup of the property tax base and how much local governments increase taxes.

State Budget Director Chuck Schalliol has suggested statewide average increases of 5 percent to 8 percent for homeowners, but he acknowledged they would go higher if a new assessment rule the administration supports goes into effect.

Others say statewide property tax increases could top 10 percent or more in each of the next two or three years, and former Senate Finance Chairman Larry Borst, who was a top architect of tax policy for three decades, predicts 15 percent to 18 percent increases for some.

Democrats blame much of the expected increases on the two-year budget passed by Republicans who control the General Assembly and signed into law by Republican Gov. Mitch Daniels.

The budget caps state-provided property tax relief payments that used to automatically rise as local property taxes did. That will save the state $436 million over two years, Purdue University economist Larry DeBoer estimates, but it will be money property owners pay.

School spending also will play a role. The budget provided increases for schools of 1.2 percent the first year and 1.3 percent the second. Those increases rely heavily on schools raising property taxes.

The budget also allows schools to further raise property taxes to provide textbooks to low-income students, recoup state cuts for transportation and pay for utility and insurance costs.

Espich said the budget was only a small part of the equation.

The story includes several side-bars.

[More] The Evansville Courier& Press has an editorial today that begins:

Thirty years of moving tax money around between state and local governments are finally catching up with Indiana. Now, with Gov. Mitch Daniels and the Republican-controlled Legislature cutting back sharply on state aid to taxpayers and local government, the burden is shifting dramatically to those local taxpayers.

It's something of a near-perfect storm that's bearing down on Hoosiers taxpayers, one that could see significant increases in property taxes, new local taxes and cuts in local government spending.

Posted by Marcia Oddi on Tuesday, October 25, 2005
Posted to Indiana Government

Monday, October 24, 2005

Ind. Decisions - Federal Court Rules in Favor of Marsh in Trademark Dispute; Marsh puts Atlas project on hold [Updated]

"Federal Court Rules in Favor of Marsh in Trademark Dispute" is the headline to this entry on the Inside Indiana Business website. A quote:

A federal court in South Bend has ruled that Arthur's Fresh Market, owned by Indianapolis-based Marsh Supermarkets, does not violate The Fresh Market trademark.

The Fresh Market had requested a preliminary injunction against Arthur's Fresh Market charging that consumers would be confused by the trademarks. The court cited that the two trademarks are significantly different. The Fresh Market has stores in Carmel and Fort Wayne.

Inside Indiana Business sets out in full the press release of the law firm that represented Arthur’s Fresh Market: Woodard, Emhardt, Moriarty, McNett & Henry. Oddly, the firm's release does not identify the South Bend federal district court judge who issued the opinion.

I was, however, able to locate the opinion, The Fresh Market v. Marsh Supermarkets, dated Oct. 17, 2005, issued by Christopher A. Nuechterlein, United States Magistrate Judge.

In related news, Marsh Supermarkets announced today that their plan to replace the site of the locally beloved, but shuttered, Atlas Supermarket on North College, in the Indianapols' Meridian-Kessler neighborhood, with an Arthur's Fresh Market was "on hold". Channel 13 Eyewitness News reports the story under the headline "Marsh's change in plans upsets residents." The story concludes:

"It looks abandoned, and for us that's not good." [Doug] Lawson, who owns the Piano Merchant says worse yet, no one knows what's in store. "To say it's on hold, that doesn't do much for us. It doesn't help us. Is it on hold forever? Are they trying to sell? We don't know the answers." And right now Marsh is not providing those answers.
[Update 10/25/05] The Indianapolis Star this morning has a related story, in its business section. The headline, "Marsh shelves Broad Ripple plans: Firm not releasing details; grocery chain wins ruling over upscale stores' name."

Posted by Marcia Oddi on Monday, October 24, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - A note from Judge Baker re Res Gestae article on voting to retain or reject Indiana appellate judges and justices

I received a note from Court of Appeals Judge John G. Baker this afternoon about the article I wrote, "Voting to Retain or Reject Indiana Appellate Judges and Justices," for the October 2005 issue of Res Gestae. (See ILB entries about, and links to, the article here and here.) Judge Baker writes:

Dear Marcia,

Thanks for your article about the lack of information about Judges before the retention election.

I vividly remember when the amendment was proposed that the State Bar association agreed to undertake to make information available for this purpose. I hope their efforts in the future will improve and that the voters will have a basis to continue to support me and my colleagues.

Thanks for stimulating the discussion. ( I am from the first district, not the 5th and J. Sharpnack is from the 5th.)

Thanks again

John G. Baker
Judge, Indiana Court of Appeals

The note is posted with permission. (I intend to correct the 1st and 5th district identifications in the online chart.)

Posted by Marcia Oddi on Monday, October 24, 2005
Posted to Indiana Courts

Ind. Courts - Candidates for Judge Pfaff's seat

The Goshen News reports today:

Six local attorneys have thrown their hats into the ring for possible appointment to judgeship in Elkhart County Superior Court 1.

Gov. Mitch Daniels must fill the vacant judge’s seat in Superior Court 1 after the resignation last month of Judge Benjamin Pfaff. The court is located in the Elkhart County Courts building, Elkhart.

Candidates include, Stephen Bowers, Larry Meteiver, Evan Roberts, Thomas Sanders, Fay Schwartz and Charles Wicks.

The candidates will be interviewed by the governor’s general counsel and the staff will make a recommendation to the governor on the appointment. It is believed the appointment may be made by mid-November. The term will run to the end of 2008.

The story by Rod Rowe includes details on each of the candidates and some quotes from them.

Posted by Marcia Oddi on Monday, October 24, 2005
Posted to Indiana Courts

Courts - Jury pool to widen [Updated]

"Jury pool to widen: Supreme Court initiates new database culled from taxpayer and BMV info" is the headline to a story today in the Munster (NW Indiana) Times by RuthAnn Robinson. Some quotes:

Nearly half of the addresses used to call people to jury duty are wrong, and the state is doing something about it.

Come January, Indiana court administrators won't rely on outdated voter rolls to gather a jury.

A new database culled from taxpayers, drivers licenses and state ID holders will save money and be more inclusive, Lake Superior Court Judge John J. Pera said. Pera acted as chairman of the Jury Pool Project initiated by the Indiana Supreme Court. * * *

To purge voter registration rolls in 2004, the state election board sent out cards to all registered voters asking them to update the information. Pera said Indiana Supreme Court Justice Theodore R. Boehm not only received a voter registration card for himself and his wife, but also for the people who lived in the house 10 years earlier.

The Fort Wayne Journal Gazette published an editorial on the new, deeper jury pools on 10/12/05.

Here are the amendments to the Indiana Jury Rules, Rule 2, Jury Pool, and Rule 4, Notice and Summons. The amendments take effect January 1, 2006.

[Update 10/25/05] Today's Fort Wayne Journal Gazette has an AP story headlined "State database to streamline jury selection slated for ’06."

Posted by Marcia Oddi on Monday, October 24, 2005
Posted to Indiana Courts

Environment - Stories today on hexavalent chromium, a peat-accumulating wetland, dredging Indiana harbor

The Indianapolis Star has a front-page story today on hexavalent chromium in Jackson County. Tammy Webber's story begins:

MEDORA, Ind. -- Jackson County is known for its rustic covered bridges and round barns and as the boyhood home of rocker John Mellencamp. But not all is idyllic in this rolling Southern Indiana countryside.

State environmental regulators are investigating whether sludge containing a potentially harmful industrial pollutant was left behind on a farm from which it was supposed to have been removed decades ago. They also are looking into whether sludge laced with the substance, hexavalent chromium, was dumped in previously unknown sites, perhaps illegally.

On a brighter note, a story in the Munster (NW Indiana) Times reports on restoration in Porter County of the Samuelson Fen. According to the story,"A fen is a peat-accumulating wetland that receives some drainage from the surrounding mineral soils and supports specific wetland vegetation. These areas are richer in nutrients and less acidic than bogs."

"Prep work continues on dredging project" is the headline to another story today in the Munster (NW Indiana) Times on the EPA project to dredge 4.8 million cubic yards of contaminated sediment from the Indiana Harbor and Ship Canal.

Posted by Marcia Oddi on Monday, October 24, 2005
Posted to Environment

Ind. Gov't. - "Cap on property tax relief a major state policy shift "

"Property tax-relief cap lifted: Homeowners could see major increases in bills" is the headline to an AP story today by Mike Smith, published today in the Fort Wayne Journal Gazette and several other state papers. It begins:

INDIANAPOLIS – A new cap on state property tax relief could save Indiana’s government hundreds of millions of dollars, but thousands of homeowners and businesses could pay the price.

The cap is a major shift in a policy that has saved property owners billions over the past three decades, and some analysts and lawmakers say it will place the burden for spending increases by local governments squarely on property taxpayers’ shoulders. * * *

The [new, higher] cap comes just three years after lawmakers raised the sales tax to help soften the blow of a court-ordered change in property tax assessments, which caused many tax bills to skyrocket. Many predict the cap could help contribute to double-digit percentage increases in local property taxes over the next two to three years.

Otis “Doc” Bowen made state-backed property tax relief his top pledge in his successful run for governor in 1972 because property taxes had more than doubled in the past decade.

Legislation passed in 1973 raised the sales tax from 2 percent to 4 percent and dedicated the extra revenue to property tax cuts. It also included limits on how high property taxes could be raised. * * *

Larry DeBoer, a Purdue University economist and property tax analyst for the legislature, said the cap will save the state about $436 million in property tax relief over the next two years. Property owners will pay instead.

House and Senate Democrats say it will help fuel major increases in property taxes over the next two years.

Rep. Jeff Espich of Uniondale, the top fiscal leader for House Republicans, counters that taxpayers won’t be affected if local governments hold spending growth to 80 percent of what it has been historically.

Many school and local government officials say that’s impossible and note they have suffered the same hard times that have befallen the state’s finances.

Tomorrow: "Property tax bills are going up, and the tax-relief cap is only one reason."

Posted by Marcia Oddi on Monday, October 24, 2005
Posted to Indiana Government

Law - Resdistricting, a comprehensive relook

"Who Should Redistrict?" is the title to a lengthy article in Sunday's NY Times Magazine, well worth a read.

[More] Yesterday's Washington Post had an editorial on redistricting. A quote:

Modern redistricting is a travesty. Politicians, using powerful computers, design districts that all but guarantee victory to one side or another. Sure, voters can go through the motions on Election Day, but few races are more than fictions. Sometimes the process is rigged to protect incumbents, sometimes to oust them, but maximizing competition and voter choice is never the goal when politicians get to draw the districts in which they or their friends will run. The result contributes to political polarization, since heavily Democratic districts tend to elect people far more liberal than average while heavily Republican districts tend to elect people far more conservative.

Posted by Marcia Oddi on Monday, October 24, 2005
Posted to General Law Related

Ind. Gov't. - Inside baseball speculation on who wil head the Natural Resources Commission

"Indiana Outdoors: Outgoing Marion resources chairman leaves void: Several candidates in line to replace Kiley at state post" was the headline to this Sunday's "Bayou" Bill Scifres column in the Marion Chronicle Tribune. Some quotes:

Fall, and the upcoming hunting seasons, combine to create a huge point of interest for Hoosier outdoors folks, but beneath the flow of the obvious, a huge question looms in the minds of conservationists and environmentalists of the state.

Who will replace Mike Kiley, the Marion attorney who served the Natural Resources Commission for 29 years, the last 15 years as its chairman? * * *

Although the new chairman of the Commission logically would seem to be one of the triumvirate of [Rick Cockrum, vice-chairman of the Commission], [Jane Ann Stautz, a member of the panel since the first administration of governor Evan Ba], and [Richard Mangus, who served in the House of Representatives for many years, while giving strong support for issues involving natural and wildlife resources], there is one vacant seat. I am told that the governor could appoint an outside person to fill that chair. And, because the chairman serves at the pleasure of the governor, a new appointee could conceivable become the new chairman.

It is interesting to note that the three chairmen of the Commission since its formation in 1965 have all been Democrats. All were appointed to the panel by Republican governors. A successor to Kiley will is scheduled to be elected at the January Commission meeting.

Posted by Marcia Oddi on Monday, October 24, 2005
Posted to Environment | Indiana Government

Sunday, October 23, 2005

Courts - Kansas looks at making appellate judicial offices elective

A story Saturday in the Lawrence Kansas Journal-World looks at the judicial selection question. [Thanks to How Appealing for the link.] Some quotes from the story:

Topeka — A legislative committee Friday decided to make no recommendation on the hot-button issue of whether to change the way Kansas Supreme Court justices are selected.

The controversy, however, is bound to be debated during the 2006 legislative session that starts in January.

Several lawmakers, unhappy with recent court decisions in overturning the death penalty and ordering more school funding, have sought to make Supreme Court justices run in contested elections or be subject to state Senate confirmation.

Either proposed change would require a two-thirds vote in the Legislature and a statewide vote to amend the state Constitution.

Currently, a nominating commission screens judicial applicants and presents a list of three candidates to the governor, who then makes an appointment from that list. Justices then run for retention election every six years.

Retired Supreme Court justices, including Fred Six, of Lawrence, legal associations and voter groups urged lawmakers to keep the system as it is, saying it allowed the judiciary to stay independent by keeping politics and special interest campaign money out of the selection process. * * *

“Judges cannot protect those who are minorities or unpopular if the judges are beholden to the political pressures of the majority, or to the necessity to raise campaign money from the rich and powerful,” said Richard Hayse, president of the Kansas Bar Assn.

But several lawmakers said the retention election process was a sham because it is nearly impossible for citizens to get information about a judge that is on the ballot to be either retained or taken off the bench. “Trying to find out something about a judge is like trying to find a tooth in a hen’s mouth,” said Sen. Kay O’Conner, R-Olathe.

[Rep. Paul Davis, D-Lawrence] and other supporters of the current system agreed that is a problem and a process of providing evaluation of judges is needed.

SJR 1, introduced in the Indiana General Assembly that ended this spring, proposed similar changes in the selection of appellate judges in Indiana, and is discussed in my column in the October issue of Res Gestae, the journal of the Indiana State Bar Association. For more information, and to access the article, see this ILB entry from earlier this week.

See also this ILB entry from 3/27/05, titled "Judges on the hot seat", discussing both the Kansas and Indiana selection processes, as well as those of other states.

Posted by Marcia Oddi on Sunday, October 23, 2005
Posted to Indiana Courts

Ind. Gov't. - Pros and cons of Indiana game "preserves"

The pros and cons of so-called Indiana game preserves are explored today in a lengthy front-page story by Will Higgins in the Indianapolis Star. Some quotes from mid-way through the article:

Mainstream hunting organizations say high-fence hunting amounts to the shooting of what are essentially farm animals. Critics say high-fence hunting cuts off an animal's escape route, negates the time-honored concept of "fair chase" and gives hunting a bad name.

Animal-rights activists such as the Humane Society of the United States oppose all hunting but especially high-fence hunting, which they consider exceptionally foul. Foes also worry that confining deer increases the chance of disease, such as chronic wasting disease, which could spread to the wild deer population.

The potential death knell of Bruce's preserve came this summer when the Indiana Department of Natural Resources, after allowing the practice for a decade, pronounced it illegal. Kyle Hupfer, the DNR's newly appointed director, gave Bruce and the other high-fence preserves operating in Indiana until next spring to cease operations.

[Rodney]Bruce, who works a factory job during the week, doesn't understand the outrage. "What I've got is the same principle as a pay (fishing) lake," he said.

In 1999, when Bruce was considering getting into the business, he wrote to the DNR to make sure it was legal. "My question is," he wrote, "can I legally charge people to come to my place for this vacation/hunting experience?"

The DNR gave him the green light, though it cautioned that "state statutes and rules may change in the future that would disallow the type of business venture that you have described to us." Bruce moved ahead with his plans.

For earlier, related ILB entries, see 8/13/05, 8/26/05, and 8/27/05.

Posted by Marcia Oddi on Sunday, October 23, 2005
Posted to Environment | Indiana Government

Ind. Law - A look at the Georgia voter ID decision

Jim Stinson of the Gary Post-Tribune takes a look today at the impact on Indiana of the Georgia federal district court decision throwing out the Georgia voter ID law. Some quotes:

Supporters of a new state law requiring photo identification at the polls are eyeing the decision of a federal judge who tossed out similar requirements in Georgia on Tuesday.

The state is part of a different federal appellate circuit, and the decision was focused solely on Georgia’s law, so Indiana’s law is intact — for now. * * *

State Sen. Vic Heinold, R-Kouts, the bill’s author, said Indiana’s law should hold up because so many photo identifications are readily available to voters throughout the state. Heinold said Georgia’s problem was the law was interpreted as a poll tax because required identifications were deemed as costly.

Heinold said bill supporters added many compromises, including free non-driver’s identification cards issued through the Bureau of Motor Vehicles. Heinold said the compromises could help assure a judge there is no impediment to voting. * * *

Ken Falk, legal director for the Indiana Civil Liberties Union, is hard at work on a brief challenging Heinold’s law. The ICLU will lead the charge against the bill in the courtroom of U.S. District Judge Sarah Barker, a Southern Indiana district court. His brief is due Oct. 31, and a year-end decision is expected.

Falk said it is wrong to ask for particular types of identification cards before letting people vote. Falk said the state demonstrated no proof there is fraud going on in-person at voting polls, yet pointed to absentee fraud done through the U.S. mail in Northwest Indiana. “The state literally has no justification,” said Falk. * * *

[Todd Rokita, Indiana secretary of state] said he was suspicious as to why the Georgia case was filed in Rome’s federal northern district, not Atlanta’s southern district, where Georgia state government is centered. He said “liberals” shopped for a sympathetic judge. Rokita said the lengthy decision means defensiveness, and a reversal is probably likely. * * *

Rokita said one flaw with the Georgia law was the affidavit Georgians had to file for a free identification. Rokita said it required applicants to swear they are indigent. Indiana has no such requirement, he said.

See the ILB entry from last Wednesday, 10/11/05, titled "Judge halts Georgia voter ID law".

Posted by Marcia Oddi on Sunday, October 23, 2005
Posted to Indiana Law

Ind. Law - Evansville cybersquatting case settled

"Realtors settle dispute" is the headline to a story today by Maureen Hayden in the Evansville Courier&Press. Some quotes:

An Evansville Realtor has agreed to pay $60,000 to settle a "cyber-squatting" lawsuit accusing her of pirating Internet domains of her biggest competitor.

Janice Miller, owner of ERA First Advantage Realty, agreed to pay the money to F.C. Tucker Emge in a settlement reached Friday. As part of the settlement agreement, neither side admits liability to the claims and counterclaims brought during what has been an acrimonious dispute between the owners of the city's largest real estate companies.

The agreement was reached on the day when attorneys for both parties were scheduled to meet with U.S. District Judge Richard L. Young, in whose court the lawsuit had been filed.

The matter appeared headed for trial after a dispute arose over who violated the terms of an earlier and confidential settlement agreement, in which Miller had agreed to pay $35,000 to get the owners of F.C. Tucker Emge to drop cyber-squatting claims against her and her company. * * *

Briscoe and Eastridge filed the lawsuit against Miller last year, accusing her of violating the Anti-cyberpiracy Consumer Protection Act of 1999, designed to protect trademarks from Internet interlopers. They alleged Miller bought and registered 19 Internet domain names that closely resembled their company's name and Web site address. The result, they said, was that when potential F.C. Tucker Emge customers would go to one of those 19 Web sites, they would automatically be sent to Miller's homepage instead. Miller filed a counterclaim against Briscoe and Eastridge, accusing them of attempting to put her out of business.

For background, see this ILB entry from 8/25/04.

Posted by Marcia Oddi on Sunday, October 23, 2005
Posted to Indiana Law

Ind. Decisions - Indiana attorney general's office denied a "do-over"

The Indianapolis Star's Sunday column, Behind Closed Doors, has a great item today on the AG's office. It is based on the Indiana Tax Court's Judge Fisher's opinion issued Wednesday in Miller Brewing Company v. Ind. Dept. Revenue. Per the Star:

The Indiana attorney general's office had a unique defense recently in appealing a decision by the Indiana Tax Court. It admitted to ignorance and asked for a do-over.

Judge Thomas G. Fisher, though, wasn't impressed by the extraordinary mea culpa and denied the state's so-called "motion to correct errors."

Andrew Swain, a deputy attorney general, had asked Fisher to reconsider his decision in favor of Miller Brewing Co. and against the Indiana Department of Revenue in a tax case. Trouble was, the state wanted to make a case now that it hadn't made when the case was first heard in 2002.

Swain didn't mince words in describing the miserable job the attorney general's office had done. "The reason we didn't give this (argument) to you the first time, your honor, is, plain and simple, ignorance on the part of the attorney general's office," Swain said. "The attorneys who handled the case before did not understand this case. They didn't understand the law. They did not understand anything about it, and that's absolutely a shock."

Tough, said Fisher, saying lawyers don't get to make arguments later that they didn't make the first time.

The opinion itself contains a longer version of the quote from the oral argument, including:
The attorneys who handled this case before did not understand this case, they didn’t understand the law, they did not understand anything about it, and that’s absolutely a shock, it was shocking to me when I read the briefs in this case and I read the transcript in this case. At one point you asked counsel why all this mattered and whether or not your opinion was going to result in an absurd result and counsel’s response was ‘Your Honor, I didn’t research that point’ and that’s just shameful on our part and I apologize for that[.]
Moreover, as Judge Fisher points out at the beginning of Wednesday's opinion, as a footnote to the case caption of "Order on respondent's motion to correct error":
The Indiana Department of State Revenue (Department) filed its petition for rehearing in this Court on August 24, 2005, and the Court held oral argument on the petition on October 3, 2005; however, a petition for rehearing is inappropriate at this juncture. When this Court hears cases protesting the final determinations of the Department, the Court acts as a trial court. See IND. CODE ANN. § 6-8.1-9-1(d) (West Supp. 2005-2006); Chrysler Fin. Co. v. Indiana Dep't of State Revenue, 761 N.E.2d 909, 911 (Ind. Tax Ct. 2002), review denied. The proper method to challenge a judgment entered by a trial court, prior to filing an appeal, is a motion to correct error. See Ind. Trial Rule 59. Therefore, the Court will treat the Department’s petition as such, referring to it as “motion.”
The Star story adds that "Attorney General Steve Carter, a Republican first elected in 2000, issued a statement saying that those ignorant attorneys who messed up aren't there any more."

Posted by Marcia Oddi on Sunday, October 23, 2005
Posted to Ind. App.Ct. Decisions

Saturday, October 22, 2005

Law - Hospital merger in Chicago suburbs voided by judge; termed landmark decision

"Judge voids 2000 merger of North Shore hospitals" is the headline to this long story today in the Chicago Tribune. Some quotes:

A federal judge has ruled that the merger of two hospital operators in the affluent northern suburbs of Chicago led to unfair price hikes and violated antitrust laws in a landmark decision released Friday that could lead to similar challenges of mergers across the country.

The ruling ordered the undoing of a 2000 merger of Evanston Northwestern Healthcare and Highland Park Hospital. The judge, who oversees a court at the Federal Trade Commission in Washington, D.C., directed the company to sell Highland Park Hospital, separating it from others it owns in Evanston and Glenview.

Evanston Northwestern plans to appeal, first to the FTC and later, if necessary, to a federal appeals court, likely the 7th Circuit in Chicago. That process could take two years.

When the FTC filed a complaint in 2004 challenging the merger four years after it had been consummated, the case was unique. But such challenges could become more common as soaring hospital costs have grown to encompass more than half of all health-care spending. * * *

The case is considered a landmark of sorts for federal antitrust lawyers who used the challenge to renew the federal government's aggressive stance toward hospital mergers. Throughout the 1990s, the FTC and the Justice Department lost a combined seven cases challenging hospital mergers.

The decision against Evanston Northwestern will certainly be precedent-setting if the FTC forges ahead, as many think it will, to challenge other hospital mergers in its renewed push to rein in health-care costs, analysts say.

FTC attorneys would not comment on their future strategy toward mergers or this ruling.

The case has been watched nationally by health insurers, employers and hospitals, as well as locally by tens of thousands of patients in the north suburbs who use the three hospitals: Evanston Hospital, Glenbrook Hospital in Glenview and Highland Park Hospital.

Even if Evanston Northwestern wins an appeal in coming years, antitrust analysts believe the government's victory will still have a chilling effect on hospital contracting and pricing behavior in the near term.

"If you are a hospital that is merging in the future, you are going to look very carefully at your pricing conduct post-merger and what Evanston did," Balto said. "I think that could be true for all industries. But knowing that the commission is already looking at hospital mergers, it's more true for hospitals."

This press release from the Federal Trade Commission provides more detail on the "initial decision and order issued by Chief Administrative Law Judge Stephen J. McGuire on October 17, 2005." Here is the case docket, including links to all the documents.

Note: The question of whether communities have right to restrict new medical centers - in this case whether, as the Star reported it, "hospital companies such as St. Francis should be allowed to build ERs to serve patients in Mooresville -- or anywhere else, for that matter -- without government restrictions was the focus of a trial ... in U.S. District Judge David F. Hamilton's courtroom in Indianapolis." For more, see this 10/6/05 ILB entry and this 10/10/05 update.

Posted by Marcia Oddi on Saturday, October 22, 2005
Posted to General Law Related

Environment - A number of recent stories

Feds fine Indianapolis Casting $446,000. A story by Tammy Webber in the Indianapolis Star today reports:

An Indianapolis iron foundry has agreed to pay $446,000 in fines and install emission controls on 139 city diesel buses to settle allegations that it failed to install adequate pollution controls at its Eastside plant for 18 years. * * * George Czerniak, chief of the agency's air enforcement branch in Chicago, said that from 1977 to 1995, the company installed 13 "process operations" that significantly increased pollution at the plant without obtaining proper permits. * * * Agreeing to install pollution controls on city buses allowed the company to avoid a higher penalty while helping the community, Czerniak said, adding the company would spend about $145,000 on the project.
Medical waste plants voted down. A story yesterday in the Gary Post-Tribune reported:
CROWN POINT — After six months of wrangling in courtrooms and public hearings, a ruling by county officials on a pair of medical waste processing plants was a swift and resounding no.

With little discussion, Lake County Solid Waste Management Board members Thursday voted 18-3, ruling that there is no need for medical waste plants in East Chicago and Gary. * * *

The vote echoed an outcry from city officials, church leaders and residents who protested the facilities as “environmental racism” and a hindrance to economic growth in the struggling communities, said the Rev. Asher Harris, spokesman for the Interfaith Alliance, a coalition of some 30 Gary churches. * * *

The board still must make a final ruling in January, and Midwest already has challenged a court ruling that would block the company from operating its plant, which began treating waste using super-heated steam autoclaves more than a year ago. * * *

The state Department of Environmental Management approved the Midwest plant more than a year ago, and Abrade’s application for a license to process medical waste is pending before the state. County officials sued IDEM, arguing that county-level approval is required. A Lake County judge ruled in favor of the county, but the case was appealed by Midwest.

"Dirt from stadium site not coming to Morgan-Johnson County line after all" was the headline to this story yesterday in the Moorseville-Decatur Twp. Times.

"Judge tells Forest Service it went too far" is the headline to an interesting AP story from the Oregon Gazette Times on the a judge's ruling on the U.S. Forest Service interpretation of his earlier order. Some quotes:

“This is the second time in a row the judge agreed with us and rejected the Forest Service’s utterly ridiculous interpretation of his order,’’ said Jim Bensman of Heartwood, a Midwest forest protection group that was a plaintiff in the lawsuit challenging Bush administration changes to forest management rules. “I think this is pretty solid proof that the Forest Service was playing games with thousands of people’s livelihoods to try to get a political advantage.’’

The Forest Service had suspended nearly 1,500 activities nationwide, including cutting an 80-foot spruce in New Mexico to serve as the U.S. Capitol Christmas tree, the transfer of an operating permit for a ski area outside Los Angeles and permits to pick mushrooms on national forests in Oregon, arguing that they were all affected by Singleton’s July 2 ruling for the Eastern District of California.

Environmental groups accused the Bush administration and the Forest Service of intentionally trying to create a train wreck to build support for legislation to further limit public participation in logging on national forests.

The ruling stemmed from a 2003 lawsuit by Heartwood and other environmental groups challenging the harvest of burned trees on the Sequoia National Forest in California, which had been approved under what is called a categorical exclusion that does not allow for public comment or appeals. The case was aimed at striking down rules adopted by the Bush administration in 2003, Bensman said. * * *

The Forest Service had suspended 115 permits for guided hunting, fishing, river trips and horseback rides, 14 projects on ski areas, 98 permits for public utilities and communications sites, and National Guard training on the Hoosier National Forest in Indiana. They also suspended thinning and burning to reduce wildfire danger on 20,000 acres, and 169 projects involving trail and campground maintenance.

Posted by Marcia Oddi on Saturday, October 22, 2005
Posted to Environment

Ind. Law - Former state senator Nelson Grills has died, at age 93

Nelson Grills has died at age 93. His long (over 1,500 words) and entertaining obituary today in the Indianapolis Star looks to have been written, at least in part, by Mr. Grills himself. Some quotes:

Nelson Grover Grills Age 93, reluctantly retired from the practice of law when he passed away on October 18, 2005.

He had been ill for a long time, but his prospective death seem to be more of an inconvenience, than a permanent set back.

He was admitted to the Indiana Bar in 1937, and practiced law for 68 years. His colorful career was full of a wide variety of clients and causes.

He practiced law until the day he died. He had a passion for the law, and a compassion for his clients; a passion for life, and a compassion for all those he encountered.

Mr. Grills served in the Indiana State Senate in the 1960s. A lawsuit brought by Grills, testing the validity of a 1941 state budget law that allowed the legislative state budget committee to play a major role in the allocation of funds during the interim between legislative sessions* (Gardner v. Grills, 1961), was a focus of my 2003 paper, "Maintaining the Balance of Power between the Legislative and Executive Branches of Indiana State Government post 1941" (available here, discussion begins on p. 15).
___________
*Grills’ complaint charged that the 1941 budget committee act violated article 3, section 1 of the Indiana Constitution, because it permitted persons charged with official duties under one department of the state government to exercise functions of another department.

Posted by Marcia Oddi on Saturday, October 22, 2005
Posted to Indiana Government | Indiana Law

Ind. Decisions - Gary attorney disciplined for pot crop

The Gary Post-Tribune reports today:

A Merrillville personal injury lawyer was publically reprimanded by the Indiana Supreme Court for growing more than 30 grams of marijuana in his Center Township home.

J. Robert Vegter, of 189 Woodside Lane, Sylvan Manor, pleaded guilty in December to a misdemeanor charge of possession of marijuana, receiving a one-year sentence with all time suspended except time already served while he was booked at the Porter County Jail.

The lawyer, known for his full-page advertisement on the back of the Gary yellow pages, had a hydroponic marijuana-growing operation in his home.

The Supreme Court's order is available here.

Posted by Marcia Oddi on Saturday, October 22, 2005
Posted to Ind. Sup.Ct. Decisions

Friday, October 21, 2005

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending October 21, 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 21, 2005. There are 28 Court of Appeals cases listed this week, plus one Tax Court case.

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 21, 2005
Posted to

Ind. Decisions - Transfer list for week ending October 21, 2005

Here is the Indiana Supreme Court's transfer list for the week ending October 21, 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 21, 2005
Posted to Indiana Transfer Lists

Ind. Courts - Voting to Retain or Reject Indiana Appellate Judges and Justices

Here is my second monthly column in Res Gestae, the monthly journal of the Indiana State Bar Association. Titled "Voting to Retain or Reject Indiana Appellate Judges and Justices," it appears on pages 21-23 of the October, 2005 issue. Don't miss the charts on page 5 and 6, showing when each of the current judges and justices is up for a retention vote. (You may need to use the magnification factor on your PDF viewer.)

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

Posted by Marcia Oddi on Friday, October 21, 2005
Posted to Indiana Courts

Ind. Decisions - More on Court of Appeals Not for Publication (NFP) opinions

Lafayette attorney Doug Masson is blogging from the ISBA annual conference this week. He attended the roundtable on appellate practice and one of his comments today in Masson's Blog is:

I couldn't help but think of Marcia Oddi and the Indiana Law Blog when the discussion came to unpublished opinions. Judge Baker indicated that when he got started, the thinking behind not publishing some opinions was that many of them are redundant and not publishing them was a way of saving attorneys from having to buy a lot more books and having to wade through a lot more case law without the extra volume particularly advancing the law in any significant way. Nowadays, the extra paper isn't really a concern, but the extra work for little pay-off might still be a valid concern. My take is that it would be nice to have them easily available online -- give us outlanders some parity with Indy attorneys who can drop by the Clerk's office. Aside from that, I think I'd be o.k. with unpublished decisions as something you could cite to the court as persuasive, but non-precedential authority. This might not exactly square with my theoretical notions about the common law, but as a practical matter, it might be a good way to avoid responsbility for a mass of mostly redundant case law.
Yes indeed, the ILB has written a number of entries urging the accessibilty and citability of NFP Indiana Court of Appeals decisions, which in the past have constituted as much as 80% [see correction below] of the work product of the Court of Appeals. As of 8/19/05, the ILB began posting, with the agreement of the Office of the Clerk of the Indiana Courts, the weekly list of the Court's NFP opinions. One thing this list of the week's NFP opinions makes clear is the enormous amount of work the Court of Appeals judges produce. These NFP opinions are not brief notations, as on the federal level, but full-blown opinions.

I refer readers to the 7/13/05 ILB post on the unavailability of Indiana Court of Appeals NFP opinions (note that the estimate I made then of the number of NFP opinions was way low), and to the 9/20/o5 ILB entry on the decision of the federal Judicial Conference to support citing unpublished opinions.

In 1997, the Honorable Judge Robert H. Staton and Gina M. Hicklin wrote an Indiana Law Review article titled "The History of the Court of Appeals of Indiana." Near the end of the 29-page article, commenting on the predecessor to current Indiana Appellate Rule 65, Staton and Hicklin write:

The 1976 rule, which is the current rule, allows the court of appeals to issue written memorandum decisions which will not be published or apply to any other case than the one appealed. The rule requires a written published opinion if the case: 1) establishes, alters, modifies or clarifies a rule of law; 2) criticizes existing law; or 3) involves a legal or factual issue of unique interest or substantial public importance. In contrast, a memorandum decision is to be used in routine cases where precedent has been set. However, a dissent from a memorandum decision may be expressed by a published opinion.

Whether a party may cite an unpublished decision as authority varies from jurisdiction to jurisdiction. In Indiana, memorandum decisions cannot be regarded as precedent nor cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel or the law of the case. There is a huge debate going on across the country as to whether all opinions, published officially or not, should be citable in a court. There are many reasons why unpublished decisions are disfavored. A primary argument is that their content is often not of acceptable quality. The decisions generally do not disclose rationale or present sufficient legal analysis. In addition, there are valid concerns regarding judicial overproduction which have persisted throughout the twentieth century.

On the other hand, there is a very vocal segment of the practicing bar which contends that unpublished opinions are damaging to the legal system. There is a concern that courts are deliberately burying their work product and suppressing precedent. They believe that nonpublication is “nothing less than censorship . . . shaping common law.” However, the vast majority of federal and state courts place severe limitations on the use of unpublished decisions and orders as legal precedent. Nevertheless, there are other members of the bar who argue that the trend may be toward more liberal rules on citing unpublished decisions and allowing greater access to all opinions of the court.

The debate and controversy will likely continue. For now, the rule remains in Indiana that the court of appeals may issue written but unpublished, memorandum decisions to decide routine cases where precedent has already been established.

Footnotes have been omitted. However, this one is of particular interest:
216. In Indiana, nonpublished memorandum decisions of the Indiana Court of Appeals can be accessed through a computer bulletin board system (BBS). The BBS retains memorandum decisions for sixty days. Any interested party with appropriate equipment may access the system which is available twenty-four hours a day, seven days a week. For instructions on using the BBS, contact the Clerk of the Indiana Supreme Court and the Indiana Court of Appeals.
Thus, in 1997, NFP opinions could be accessed via a dial-up system; I remember using it. This changed, for some reason, with the shift to the Internet.
____
Note: The correct figure, based on the Annual Reports of the Court of Appeals from 2000-2004, should be about 73% classified as "NFP", rather than 80%.

Posted by Marcia Oddi on Friday, October 21, 2005
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - FSSA holds local hearing on Evansville State Hospital

Evansville Courier&Press reporters Maureen Hayden and Jennifer Whitson team today to report at length on the FSSA hearing on the fate of Evansville State Hospital. Some quotes:

This "thing" is the proposal by Mitch Roob, the head of the Indiana Family and Social Services Administration, to transfer governance of the Evansville State Hospital from state bureaucrats in Indianapolis to a yet-to-be created, local nonprofit organization with a board made up of community leaders.

Roob, on the hot seat for much of the hearing, spent more than an hour trying to convince a skeptical crowd of mostly hospital employees of the benefits of his idea. But it was Spear's voice that many seemed to listen to most closely. [Hospital superintendent] Spear, long credited for bringing innovative new programs to the Southwestern Indiana Mental Health Center when he was director there, asked [former employee] Cundiff and others who attended the hearing to keep an open mind. "Be patient,'' Spear said. "I know you don't trust us, but I'm going to ask you to try to trust us for a while." Both Spear and Roob used the word "localization" instead of "privatization" to describe the proposal introduced by Roob earlier this year to shift operation of the three state psychiatric hospitals in Indiana into the hands of local, nonprofit agencies.

Roob said the Indiana Family and Social Services Administration - which currently operates and funds the Evansville State Hospital - should be a health-care financing agency, not a health-care provider. To bolster his argument, he noted that the major part of the agency's $6.3 billion annual budget currently goes to both nonprofit and for-profit organizations that provide health services to needy Hoosiers.

Roob said his proposal wasn't designed to cut immediate costs to the state, though he predicted failure to make the shift from a public to private facility would have dire consequences. Roob, citing declining census numbers at the three state-run inpatient psychiatric facilities, predicted "some bureaucrat from Indianapolis" would shut down the Evansville State Hospital in 20 years because of the lack of need. His prediction was met with skepticism from some hospital employees who reminded him the facility has a long list of prospective patients waiting for a bed to become available.

The Evansville story includes links to Roob's statement on "localizing" state hospitals, and to a draft proposal to potential providers.

For background, see these 10/9/05 and 10/15/05 ILB entries headed "FSSA urges 'localization,' not 'privatization,' at Richmond State Hospital."

Posted by Marcia Oddi on Friday, October 21, 2005
Posted to Indiana Government

Ind. Courts - New judges for Marion County approved

The Indianapolis Star today has this very brief entry:

Indiana's Commission on Courts voted Thursday to approve Marion County's request for two more judges and two more magistrates in 2006 and two more judges and two more magistrates in 2008, Marion Superior Court Judge Jane Magnus-Stinson said.

The General Assembly will be asked to pay for the 2006 request during next year's session.

Earlier ILB entries are here (10/4/05 - Marion County requests 8 more judges) and here (10/10/05 - STAR supports Increased state funding for more Marion County judicial officers).

Posted by Marcia Oddi on Friday, October 21, 2005
Posted to Indiana Courts

Law - Gun-shield bill protects makers and sellers from suits, including that of the city of Gary

The Indianapolis Star publishes on its front page today a story from the LA Times (their longer version here) on the gun bill now passed by both houses of Congress. Some quotes:

WASHINGTON -- Congress on Thursday sent President Bush a bill long sought by the National Rifle Association that shields gun makers and sellers from lawsuits arising from misuse of their weapons.
Bush supports the bill, and once he signs it, lawyers are expected to seek dismissal of about a dozen cases filed across the United States against firearm makers by cities, including Gary, Ind., and crime victims. Gun-control groups vow to challenge the measure's constitutionality. * * *

The gun legislation, which the House passed 283 to 144 Thursday and which passed the Senate 65 to 31 in July, was sparked by lawsuits filed in the late 1990s by several cities seeking to hold the firearm industry liable for gun violence. Gun rights advocates contended that the lawsuits — which they say have cost the industry hundreds of millions of dollars in legal fees — were intended to drive firearm makers out of business.

The ILB has posted a number of entries on the Gary suit, related Indiana legislation, and a decision by the Indiana Supreme Court.

The Indiana Supreme Court's December 2003 ruling allowing Gary's suit against gun dealers to proceed is City of Gary v. Smith & Wesson Corp. (12/23/03 IndSCt). A bill passed by the 2004 Indiana General Assembly, HEA 1349, had initially sought to include a ban on the Gary lawsuit. However, this week's congressional effort does seem to have that effect.

For more more information, see particularly this ILB entry from 2/12/04 and related links, and this 11/19/04 entry and related links.

Legislative details of the congressional effort are here, from CNS News. A quote:

The "Protection of Lawful Commerce in Arms Act" is designed to protect firearms manufacturers, distributors, dealers and importers from being sued for the criminal misuse of their products by unrelated third parties. The House passed the Senate's version - S. 397 - by a vote of 283 to 144.

Posted by Marcia Oddi on Friday, October 21, 2005
Posted to General Law Related | Ind. Sup.Ct. Decisions | Indiana Government | Indiana Law

Ind. Gov't. - "Study finds property tax chaos"

No surprise here. "Study finds property tax chaos: Disparities abound in system that was supposed to be fixed in 2003" is the headlne to the lead story, by Mary Beth Schneider, in today's Indianapolis Star. The long report begins:

Despite a massive overhaul of the state's property tax system, wide disparities remain in 85 percent of Indiana's counties between what a home is assessed at and what it actually sold for, a new study shows.

Taxpayers can have little confidence that they are shouldering their fair share of the property tax burden, said officials with the Indiana Fiscal Policy Institute, which did the study.

The disparities mean the owner of a home that would sell for $100,000 might find his home assessed at $80,000, while the owner of another home with the same sale price might find her home assessed at $120,000 -- even in the same county or township, said Steven Johnson, a former state senator who is president of the institute.

The Indiana Fiscal Policy Institute's study is available here. The Star story summarizes the report's key recommendations:
• Eliminating all 1,008 elected township officials who handle assessments and replacing them with appointed professionals.

• Moving primary assessment responsibility from the township to the county level.

• Enforcing compliance with statewide assessment data standards, with financial penalties for failure to comply.

Posted by Marcia Oddi on Friday, October 21, 2005
Posted to Indiana Government

Thursday, October 20, 2005

Environment - More on state logging plan

The Monticello Herald Journal has another story on the DNR logging plan today; a companion to its story from Monday (2nd item). Kevin Howell reports that:

The Indiana Forest Alliance, which has filed suit against the state’s intent to increase logging in state forests, has other concerns besides what it sees as a lack of public comment and environmental impact studies regarding the strategic plan.

Alliance co-coordinator David Haberman notes certain species in the state rely on mature forests and intact canopies, and the effect of logging roads and soil compaction will adversely affect the forests.

He said he is concerned the Department of Natural Resources will go beyond state forests and include other state properties.

“They’re announcing clear cuts. One manager of state forests said they can take every tree off a five-acre plot,” said Haberman, quoting from a Brown County Democrat story on Oct. 5.

Posted by Marcia Oddi on Thursday, October 20, 2005
Posted to Environment | Indiana Government

Ind. Courts - Terre Haute federal court closing on hold

A brief story on Terre Haute's Action News 10 (WTHI) site tonight reports:

The closing of the Federal Court in Terre Haute on hold tonight. At least for now.

In a statement released late this afternoon, Chief Judge Larry McKinney cited new possibilities for relocating the court.

It was just a month ago the U.S. District Court announced they'd be closing up shop here in Terre Haute as ownership of the federal building was being transferred to ISU.

The Court says it will work with the General Services Administration to keep the operation running until a more definite decision is made.

Here is Judge McKinney's press release:
The Terre Haute Division of the United States District Court for the Southern District of Indiana will remain open for business while it works closely with the General Services Administration (“GSA”) and the Administrative Office of the U.S. Courts to examine the feasibility of continuing to hold court in Terre Haute. The Court will continue to take into account the concerns of the local community and their elected representatives, as well as new information concerning opportunities for relocation. The District Court previously had announced its intention to cease operations in the Terre Haute Division because the federal building it occupies will be transferred to Indiana State University, and no suitable alternative for housing had been identified. GSA and the United States Marshals Service have assured the Court that adequate security can be provided during this interim period.

Posted by Marcia Oddi on Thursday, October 20, 2005
Posted to Indiana Courts

Ind. Decisions - Court of Appeals decides two drug cases of interest today

In State of Indiana v. Scott Crabb, an 8-page opinion issued today, Chief Judge Kirsch wrote:

The State appeals a decision of the trial court to suppress evidence seized in a warrantless search, which led to the charging of Scott Michael Crabb with dealing methamphetamine,1 a Class A felony, possession of methamphetamine,2 a Class C felony, and neglect of a dependant,3 a Class D felony. After the trial court granted Crabb’s motion to suppress, the State dismissed its charges and filed this appeal. The dispositive issue on review is whether the smell of ether emanating from an apartment reported to house a small child constituted exigent circumstances justifying a warrantless search. We reverse. * * *

We readily acknowledge that methamphetamine production and use have rapidly become plagues in our communities and recognize that law enforcement is inundated with new challenges related to methamphetamine; however, we are not ready to draw a bright line which would allow officers to enter a home without a warrant based solely on the smell of ether. That said, we find that the specific facts of this case justified the warrantless entry and search of Crabb’s apartment under the exigent circumstance exception to the warrant requirement.

Judge Barnes concurred, Judge Baker concurred in the result with a separate opinion that begins:
I agree with the majority’s view that the trial court’s grant of Crabb’s motion to suppress must be reversed. However, I write separately to advance the notion that the smell of ether emanating from the apartment—regardless of the presence of the child—was enough to justify the officers’ warrantless entry and subsequent search of the premises.
This case is written up today in an AP report by Charles Wilson. Some quotes:
INDIANAPOLIS - Police had just cause to search an apartment without a warrant because it smelled like a meth lab and posed a potential danger to a child inside, the Indiana Court of Appeals ruled Thursday.

Clark Superior Court in southern Indiana had thrown out evidence seized in a search of Scott Michael Crabb's apartment, saying it violated Fourth Amendment protections against unreasonable search and seizure.

However, state attorneys successfully argued on appeal that police had too little time to obtain a search warrant because the presence of ether - a volatile chemical used in making - posed an immediate threat to those inside Crabb's apartment.

The Court of Appeals agreed in its 3-0 decision but went a step further: The judges held the search was justified because police had reason to believe the meth lab posed an immediate threat.

In a second drug decision today, this one involving heroin, the question of whether the State presented sufficient evidence to establish venue in Hamilton County. The Court of Appeals affirmed. This case is Jerry Smith v. State of Indiana.

Posted by Marcia Oddi on Thursday, October 20, 2005
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Oh, no! A reporter is on the phone!

What do I do? Help!

Easy there, IDEM staffer. Just attend this Media Boot Camp.

Posted by Marcia Oddi on Thursday, October 20, 2005
Posted to Indiana Government

Law - Bush faith-based initiative upheld: Salvation Army may hire and fire employees according to their religious beliefs

On October 4th the ILB posted this brief entry about Judge Sidney Stein's Sept. 20th opinion in the case of Anne Lown et al. v. The Salvation Army, et al. I obtained a copy of the opinion and posted it on this site, and waited for the press, other than NPR, to write about the decision.

Finally, today, the Washington Post has a story about it. Some quotes:

Chalk up a big legal victory for President Bush's effort to help religious charities get taxpayer funding. And score a symbolic win, too, for those who think Bush's "faith-based initiative" is just pork-barrel politics in disguise.

Bush's big victory came Sept. 30 in New York, where a federal judge threw out most elements of a religious discrimination lawsuit against the Salvation Army. Eighteen employees claimed they were fired or demoted because they refused to pledge support to the Salvation Army's mission of "proclaiming Jesus Christ as Savior and Lord," disclose what church they attended or name gay co-workers.
* * *

[T]he judge's 48-page opinion upheld the principle that a religious group can hire and fire employees on the basis of their religious beliefs and practices, even if their salaries come from taxpayer funds. That principle is at the heart of the Bush administration's policy. * * *

On the other hand, critics of the faith-based initiative got a boost last week when the U.S. Department of Education suspended a $435,000 grant for Alaska Christian College, an unaccredited, one-year school run by the Evangelical Covenant Church. * * *

Another lawsuit on that question is scheduled to go to trial in Iowa on Monday, 2 1/2 years after it was filed by Americans United for Separation of Church and State. It challenges the constitutionality of the InnerChange program, a prison ministry run by Charles Colson's Prison Fellowship.

Iowa prison officials maintain that public funds are not used to pay for the religious elements of the program. But Americans United says it is impossible to separate the religious and secular portions of a program that describes itself as "Christ-centered."

Posted by Marcia Oddi on Thursday, October 20, 2005
Posted to General Law Related

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

The ILB has had six previous entries on this dispute, dating back to 10/30/04. Most recently, on 9/19/05, the Court of Appeals issued a ruling, about which the ILB remarked in this entry: "Unfortunately, the clear issue in this case has become part of a confusing procedural dispute."

Today Deborah Laverty writes in a Munster (NW Indiana) Times story headlined "Fired chief fighting back: Lawyer seeking state Supreme Court ruling," that:

The nearly two-year-old court case pitting former Police Chief John Shelhart against the Town Council is not over. Shelhart's attorney, David W. Westland, on Tuesday filed a petition asking that the case be heard before the Indiana Supreme Court.

Shelhart, who presently serves as the town's director of emergency medical services, has continued to defend a Jan. 9, 2004, lawsuit filed against him by the town. The lawsuit contends Shelhart's police chief contract was illegal because it restricted the right of the majority of the new Town Council to remove him and name a successor.

Westland said it will be that court's discretion to hear the case or not. "We're certainly still hopeful," Westland said. Westland's petition was filed 30 days after the Sept. 19 ruling by the Indiana Court of Appeals.

In that decision
, the court ruled on the side of the town in that it said town officials do have the right to file a motion to appeal, said Town Attorney Stephen Bower. "That (Sept. 19) ruling doesn't resolve any of the issues, It just says the town was diligent and that Lake Superior Judge Robert Pete committed an error. It was all procedural," Bower said.

In separate rulings last year, Pete found in favor of Shelhart and ordered the town to pay back his salary, with interest. That amount, approximately $125,000, is in addition to the $53,000 annual salary he is making as emergency medical services director, Westland said. He said that doesn't include the court-ordered 8 percent interest that will continue to accrue.

Bower contends the court order amounts to a golden parachute for Shelhart. He said the court-ordered amount is excessive, especially since Shelhart was named to a different town job at the same salary.

Pete, in a Nov. 5 ruling, said a March 2003 contract between Shelhart and the Town Council was legally binding. He said the Town Council breached the contract when it removed Shelhart on Jan. 9, 2004, without just cause and moved him to the position of emergency medical services director. In late December, Pete ruled in Shelhart's favor for a second time.

Posted by Marcia Oddi on Thursday, October 20, 2005
Posted to Ind. App.Ct. Decisions

Environment - "Abandoned gas station owner facing major fines"

"Abandoned gas station owner facing major fines" is the headline to a story today in the Evansville Courier& Press. The story begins:

In a matter of days, a Carmel, Ind., man could be fined up to $10,000 a day for not answering a state request for information aimed at cleaning up an old gas station site along a main corridor to Downtown Evansville.

A.D. Searl owns the fallen-down, weed-grown and trash-strewn former Wake Up station at the northeast corner of Walnut Street and Kentucky Avenue. He was sent a letter by certified mail, dated Aug. 22, from an Indiana Department of Environmental Management official, giving him 60 days to provide information on the site, "including all remediation activities that have occurred at the site" since December 2003.

Posted by Marcia Oddi on Thursday, October 20, 2005
Posted to Environment

Environment - Biosolids confrontation in Porter County involved call to State Police

Jim Stinson of the Gary Post-Tribune reports today on a dispute that has been going on in Porter County this week.

On Tuesday, someone called the Indiana State Police, who met the city’s hired trucks on Wednesday morning while the trucks were on their way to a Morgan Township field not too far from Kouts. * * * Two trucks were ticketed for being over gross-weight limits, and one truck received a warning for a nonfreight violation. * * *

The police tip follows a Monday night confrontation between South District County Commissioner Carole Knoblock and officials from Valparaiso and their contractor, Merrell Brothers Biosolids Management Co. of Kokomo. * * *

Edward J. Pilarski, Valparaiso industrial pretreatment coordinator, declined to comment about the ticketing incident. Valparaiso Mayor Jon Costas said he would work to see county road regulations respected. But Costas continued to question why Knoblock spoke out against the land application of biosolids, a process Costas said Chesterton and Portage also use.

Biosolids are recycled, treated sludge, the remains of a city’s sewage treatment, which is used to enrich farm ground.

Valparaiso pays Merrell Brothers about 3 cents a gallon to deliver the biosolid to farmers, who save about $100 per acre compared to commercial fertilization techniques, according to Ted Merrell, co-owner of Merrell Brothers.

Costas said the recycling effort is backed by the Indiana Department of Environmental Management and the U.S. Environmental Protection Agency. The city produces about 2.5 million gallons of biosolid a year.

Merrell denied one of Knoblock’s charges that the biosolid can flow or blow off the land. Instead, the biosolid is “knifed” into the ground. “Very seldom do we ever surface apply in (Porter County),” Merrell said.

On Wednesday, Knoblock said she opposes any application of biosolids for farm fertilization after reading more on the Internet about the process. She expanded her opposition to Portage’s “dry” biosolid, a drier form that Costas said Valparaiso eventually will produce. Knoblock denied she called the police, although a state police officer did drop by the commissioners’ office to tell them the Merrell Brothers trucks had been checked.

Gwenn Rinkenberger, county attorney, said she doubted the process can be banned by an Indiana county, but said Knoblock had the right to inspect the process in the unincorporated county areas.

Posted by Marcia Oddi on Thursday, October 20, 2005
Posted to Environment

Law - Dispute over "pat downs" at Cincinati Bengals home games may be over

"Fans must deal with pat downs" is the headline to an editorial today in the Cincinnati Enquirer. Some quotes:

A judge's decision Tuesday to allow security pat downs of fans entering Paul Brown Stadium for Sunday's Bengals-Steelers game could add delay and confusion to what was already shaping up as a super-crowded, hectic day around the downtown stadium.

The advent of these upper-body searches are an unfortunate but perhaps inevitable development, as the NFL tries to ease concerns that packed stadiums could be vulnerable - and attractive - to terrorists. Fans must do their best to deal with this new reality.

Hamilton County Common Pleas Court Judge Beth Myers approved an agreement between the Bengals and Hamilton County law enforcement officials to start the pat downs, which the county had objected would be illegal if paid for if the public - and could open the county up to lawsuits from fans who felt their rights had been violated.

Bengals officials agreed to advance the costs of the searches, and Myers declined to delay the pat downs until she could rule on the merits of the case. So the deal doesn't resolve the underlying conflict: Who ultimately pays? County officials are indicating that if the Bengals ask to be reimbursed by the public for the searches, which seems likely, lawsuits will ensue - adding to the long, litigious history between these parties. * * *

Few problems with pat downs have been reported elsewhere around the league, as Bob Bedinghaus, Bengals director of stadium development, noted. Cincinnati's move makes Chicago's Soldier Field the only pat down holdout in the NFL.

And in a news story today, the Enquirer reports:
Fans who don't like being patted down before entering Sunday's Bengals home game can sell their tickets, because the team has no choice about the searches, the team's lawyer said Wednesday.

Stuart Dornette, the Bengals attorney who crafted a pat-down agreement with the Hamilton County sheriff and prosecutor that requires no immediate public money, said the searches are an NFL rule. * * *

The issue of pat-downs arose locally a few weeks ago when the Bengals asked taxpayers to give them $70,000 to $80,000 to hire a private security company to conduct the checks.

Prosecutor Joe Deters and others objected, saying the involvement of public money made it an unconstitutional search.

The pat-down rule was waived for the Bengals' Oct. 2 home game with Houston while discussions continued between the team and the county.

The Bengals played two road games since then but will play a home game at Paul Brown Stadium Sunday against the Pittsburgh Steelers.

Hamilton County Common Pleas Court judge Beth Myers on Tuesday allowed the pat-downs to take place after the Bengals agreed with the sheriff and prosecutor not to bill the county right away.

Posted by Marcia Oddi on Thursday, October 20, 2005
Posted to General Law Related

Wednesday, October 19, 2005

Ind. Gov't - Yesterday's entry on the Mayor of Kokomo denying a request to disclose e-mail details is updated!

I've just updated yesterday's ILB entry on the Mayor of Kokomo denying a request to disclose e-mail details to a "young political operative". Check it out - the update is at the end of yesterday's entry. It turns out there is a lot more to the story.

(And thanks to Taking Down Words for the link to Monday's Star story that we both had missed.)

Posted by Marcia Oddi on Wednesday, October 19, 2005
Posted to Indiana Government

Ind. Gov't. - State Rep. reports on Indiana's environmental crimes task force

State Rep. Ryan Dvorak has a good report today on the first meeting of the Environmental Crimes Task Force. Access it here.

Posted by Marcia Oddi on Wednesday, October 19, 2005
Posted to Environment | Indiana Government

Ind. Law - Nuvo cover story on "Puritan Politics" in Indiana

The lengthy cover story to this week's Nuvo newsweekly, a free alternative newspaper published in Indianapolis, is written by Laura McPhee, and titled "Puritan Politics: Reforming Indiana’s sex, family and marriage laws with faith-based legislation."

Posted by Marcia Oddi on Wednesday, October 19, 2005
Posted to Indiana Law

Law - "Judge halts Georgia voter ID law"

A report about this decision this morning, in Ed Feigenbaum's Indiana Daily Insight, sent me looking for more.

The Atlanta Journal-Constitution writes:

Three weeks before municipal elections will be held statewide, a federal judge has suspended Georgia's new voter ID requirement after finding the law imposes an unconstitutional poll tax and will not effectively combat voter fraud.

In a 123-page ruling issued Tuesday, U.S. District Judge Harold Murphy of Rome temporarily barred the state from requiring voters to show a government-issued photo ID at the polls. Even though Murphy ruled only on the injunction, his strongly worded denunciation of the ID requirement law suggests that he may ultimately find it unconstitutional.

"The photo ID requirement is most likely to prevent Georgia's elderly, poor and African-American voters from voting," Murphy wrote. "For those citizens, the character and magnitude of their injury — the loss of their right to vote — is undeniably demoralizing and extreme."

The state has not received a report of voter impersonation fraud over the past nine years, Murphy wrote, adding that it will be extremely difficult for many in rural Georgia to obtain a state-issued voter ID card. * * *

Legislators who voted for the measure said the ID requirement is needed to regulate voting and prevent voter impersonation fraud. They said the law allows anyone who cannot afford a voter ID card to sign an affidavit declaring they are indigent, allowing them to get the cards for free. A five-year state-issued voter ID card costs $20; a 10-year cards costs $35.

Addressing the indigency affidavits, Murphy wrote that "many voters simply may be too embarrassed over their inability to afford a photo ID card to request and complete an affidavit for a free card." * * *

Even though the state has argued that voters can vote via absentee ballot without producing any photo ID at all in most instances, most voters "likely are unaware" they can vote this way, Murphy said. "It is simply unrealistic to expect that most of the voters who lack photo IDs will take advantage of the opportunity to vote an absentee ballot."

Murphy did not appear to have any difficulty in finding that voter ID law runs afoul of the Twenty-fourth Amendment, which prohibits a poll tax. "The fact that some individuals avoid paying the cost for the photo ID card does not mean that the photo ID card is not a poll tax," he wrote, finding a "substantial likelihood" the plaintiffs will prevail on this issue.

The case is Common Cause et al. v. Billups, US DC ND Geo. 10/18/05. I have obtained a copy, but it is scanned and therefore a very large file -- too large to post here. Contact me if you'd like a copy.

[More] Voter ID, of course, is the law in Indiana, as a result of the past session. For background, see this ILB entry from 4/28/05.

Posted by Marcia Oddi on Wednesday, October 19, 2005
Posted to General Law Related

Ind. Courts - Res Gestae article on voting to retain or reject Indiana appellate judges and justices

The second of my monthly Res Gestae columns ("To elaborate ...") will appear in the October issue, which I understand from the ISBA is going out in the mail today. As soon as my issue arrives, I will post a copy of my column here.

My topic this month is the retention vote for Indiana appellate judges and justices. The piece begins:

During the 2005 session, the Indiana Senate considered a proposal to amend Article 7 of the Indiana Constitution to require that the Governor’s nominee to an appellate court be subject to confirmation by a majority of the Senate. After ten years, under this proposal, the justice or judge again would come before the Senate for retention. A favorable vote of 40% of the members of the Senate would assure retention.

The measure passed the Senate by a roll call vote of 33 to 16, but died in House committee.

Posted by Marcia Oddi on Wednesday, October 19, 2005
Posted to Indiana Courts

Ind. Law - National law article focuses on Indiana Senator Pat Miller's proposal to limit use of assisted reproduction technologies to married couples

"Does the U.S. Constitution Allow Government To Limit the Use of Assisted Reproduction Technologies to Married Couples?" That is the title to an analysis by Rutgers law professor Sherry F. Colb posted on Findlaw.com today. The lengthy piece begins:

Two weeks ago, the State of Indiana was on its way to considering a statute that would have confined the use of assisted reproduction to married couples. Sponsored by State Senator Patricia Miller of Indianapolis, the law would have required people who wished to utilize assisted reproductionto obtain licensing, and would have denied such licensing to unmarried people. In addition, criminal penalties would have followed for the "unlicensed" reproducer.

Miller withdrew the bill after a firestorm of controversy. Yet this law, or one like it, might well reappear soon, in Indiana or elsewhere.

The proposed bill raises important and novel questions about what the Constitution has to say about the use of new technologies in procreation.

Earlier ILB entries on the Miller proposal may be found at: 10/4/05; 10/5/05; 10/5/05(2nd); and 10/12/05.

Posted by Marcia Oddi on Wednesday, October 19, 2005
Posted to Indiana Law

Environment - "Adapt and thrive" - the new BigEastern.com

Marty Lucas, North Judson attorney, conservationist and longtime blogger, announced this week a new focus to his blog, BigEastern.com:

[H]enceforth I'll be focusing on how we can adapt to the fairly drastic changes in our lifestyle that we'll be experiencing in the next few years. As is my wont, I will attempt to synthesize technical, social, and economic factors and suggest legal and institutional changes that may be warranted. Or just as often, suggest that changes aren't warranted.

The types of changes I'm talking about are: (1) the end of cheap oil and gas, (2) a decline in the power and influence of the U.S., (3) the ageing of the population, (4) an increasing rate of critical environmental problems, (5) an economy increasingly dominated by the super-rich, and (6) global warming.

While these changes are global, I'll continue to focus on regional ways to cope. History is replete with periods of resource strain; these were painful times but civilization ultimately marched onward. Those that are able to innovate, not only technologically, but socially as well, are likely to fare best. I'll try to leave the gloom and doom to others but folks, we need to talk about making some changes.

His first feature is geothermal energy. A few quotes:
One of the most pressing problems we're facing here in northern Indiana right now is the looming winter heating crunch. Maybe it's not quite a crisis, but it's close. We have an abundant resource that could provide a huge savings in energy consumption, if it could be tapped on a systematic basis. No, I'm not talking about not hog manure or corn. While these seem quite abundant in Hoosierland, I'm afraid the scale of the problem is a bit bigger than that. The resource I'm talking about is groundwater; and the solution I'm talking about is open loop geothermal heat pumps. * * *

Retrofitting existing communities doesn't seem impossible, though it might prove difficult to get enough existing homes to change over to geothermal to make it work. It seems more reasonable than trying to heat a town with hog manure, though that might work in a really small town. A good place to start would be to make some new developments in fast growing communities 'all geothermal'. It seems a safe bet that a cluster of many geothermal homes on a shared well and disposal system would be significantly more cost effective in terms of installation as compared with a multitude of smallish separate systems. The discharge site could make a nice park. Reductions in heating (and cooling) costs of over 60% would be quite feasible, and what energy is used is electrical which can be generated in a wide variety of ways, including solar, wind and hydro, and so this isn't 'locked in' to petroleum or natural gas.

Posted by Marcia Oddi on Wednesday, October 19, 2005
Posted to Environment

Ind. Gov't. - State response to call for more personnel at South Bend juvenile facility questioned

"South Bend juvenile facility adds surveillance, not guards: Federal report cited need for personnel" is the headline to an AP story today by Ken Kusmer in the Louisville Courier Journal. It begins:

INDIANAPOLIS -- The Indiana Department of Correction has reduced staffing at the South Bend Juvenile Correctional Facility instead of adding guards, as the U.S. Justice Department recommends in a recent report on civil-rights violations at the institution.

Instead of guards, the state agency has added video cameras to better protect inmates from beatings in shower areas, dormitories and other locations cited by federal investigators, the agency said in its official response to the civil-rights violations.

However, the federal investigation found that existing video cameras failed to protect juveniles because staff sometimes failed to spot instances in which assaults were caught on camera.

In two separate incidents in March 2004, video cameras filmed offenders beating fellow inmates but the attacks went unnoticed by staff, the Justice Department found.

Posted by Marcia Oddi on Wednesday, October 19, 2005
Posted to Indiana Government

Ind. Decisions - "State high court suspends lawyer for misconduct"

First reported here in the ILB on Monday, today's Indianapolis Star puts the story on the front page of its Metro&State section. "State high court suspends lawyer for misconduct" is the headline to the report by Richard D. Walton. A quote:

And when a dissatisfied criminal suspect demanded a refund, Freeman replied with a threatening letter, the Indiana Supreme Court said. "Please do NOT EVER in your life send me another letter," Freeman wrote. "If you do I will have to make trouble for you while you are locked up!"

Posted by Marcia Oddi on Wednesday, October 19, 2005
Posted to Ind. Sup.Ct. Decisions

Tuesday, October 18, 2005

Ind. Courts - 7th Circuit's Easterbrook featured in "Underneath their Robes"

In a very interesting entry posted yesterday, UTR asks "Why is Judge Easterbrook seldom mentioned as a possible Supreme Court short-lister?" Read it here. One of the issues addressed in the entry: ""Did Hudnut scare off too many people?" referencing American Booksellers v. Hudnut, the Indianapolis pornography case.

And a former Easterbrook law clerk responds here. [Thanks to How Appealing for the link.]

Posted by Marcia Oddi on Tuesday, October 18, 2005
Posted to Ind. (7th Cir.) Decisions

Law - Simon Malls' gift cards found illegal by a New Hampshire court

The Concord New Hampshire Monitor reports today:

A Merrimack County Superior court judge ruled yesterday that gift cards sold at Simon Malls with a one-year expiration date and a prepaid value that begins to drop after six months violate state consumer protection laws, but a federal court will have to decide whether the cards could still be sold in the state.

Simon Gift Cards drop $2.50 in value per month after six months and expire after a year, which violates the state's gift certificate law, according to a ruling by presiding justice Kathleen McGuire. Now it's up to a federal court judge whether state law should be upheld or whether Simon Property Group should be allowed to continue selling the cards in New Hampshire under the protection of federal banking laws that say the practice is legal.

Simon Property Group, an Indiana-based company, owns 159 malls across the country, including Mall of New Hampshire in Manchester, Pheasant Lane Mall in Nashua and the Mall at Rockingham Park in Salem.

The state consumer protection bureau sued Simon last year for selling the Visa gift cards. Similar suits were also filed in several other states, including Massachusetts and Connecticut. Simon began selling the gift cards in 2001 in five malls. Now they are sold in 160 malls in 34 states, according to the court file.

Simon Property Group argues that the gift cards work like debit cards, not gift certificates, and should not be subject to New Hampshire regulations. * * *
The ruling issued yesterday was not the final judgment in the suit. The case will go before the federal district court in Concord in December, when a judge will decide whether the gift cards should be allowed to continue under federal law or whether state law prohibiting gift certificates with expiration dates and maintenance fees should prevail.

Posted by Marcia Oddi on Tuesday, October 18, 2005
Posted to General Law Related

Environment - Stories today on "blue bag waste", environmental cleanup, septics

Chicago's "Blue bag waste" is coming to Indiana, again, but this time to a landfill. The Chicago Tribune reports today:

Despite failing to meet requirements for recycling the city's household garbage, a politically connected company will continue to run Mayor Richard Daley's blue bag program for another two years.

City officials also said Monday they have agreed to let Allied Waste Transportation send thousands of tons of waste to an Indiana landfill but count it as recycling. The decision drew criticism from environmental activists, but it would allow City Hall and Allied again to boost the percentage of household garbage that it claims to recycle. * * *

Indiana authorities shut down the [last] operation in March after the Tribune reported that the farm took in much more screened waste than the state permitted. The city's recycling rate was cut roughly in half.

Now Allied officials say they will compost the screened waste in a landfill in Fulton County, Ind., and use it to cover mounds of garbage. City officials agreed to let this plan count as recycling in an Aug. 30 decision by Daley's then-interim chief procurement officer, Mary Dempsey, who consulted with Environment Commissioner Sadhu Johnston.

Environmental activists, who have long opposed the blue bag program, said they are glad screened waste is going to a landfill rather than being spread on farmland. But they scorned the notion that the new plan represents progress, because the goal of recycling is to divert waste from landfills.

"Once again, the city is looking for ways of meeting its recycling goals through fake diversion," said Betsy Vandercook, president of the Chicago Recycling Coalition.

The Louisville Courier Journal reports today, in a story by Ben Zion Hershberg, that:
Contractors set up equipment yesterday in New Albany to start moving 14,000 tons of contaminated dirt from the site of the Scribner Place downtown development project.

The environmental cleanup is to be completed by Thanksgiving, said Curt Jones, senior project manager for Shield Environmental Associates, the city's consultant. * * *

The dirt -- more than 500 truckloads contaminated with lead, petroleum products and, to a more limited extent, arsenic -- will be taken to the Outer Loop Landfill in Louisville for disposal, Jones said as he reviewed plans with contractors.

As the dirt is removed, an environmental testing company will take samples of what remains to determine whether state-approved goals for the cleanup are being met, Jones said.

The most extensive excavation will be near the former site of the Double 7 tire company near the corner of Main and West First streets, Jones said.

Foundries once occupied the site and lead used in their processes -- along with hydrocarbons that apparently were waste products from Double 7 -- must be removed, he said. Excavations at and near the old Double 7 site are expected to be 13 feet deep, Jones said.

In a story from Kentucky, the Louisville Courier Journal reports:
SOMERSET, Ky. -- A southeastern Kentucky town is working to stop the flow of human waste into a small lake that supplies drinking water for residents in five counties.

About 35 homes along the northeast shoreline of Lake Linville have malfunctioning septic tanks that spew raw sewage each time commodes are flushed, Mount Vernon Mayor Clarice Kirby said.

That will change soon because of a $750,000 federal grant from the government-sponsored environmental organization PRIDE. The money will pay for construction of a municipal sewer line along the edge of the 440-acre reservoir.

Posted by Marcia Oddi on Tuesday, October 18, 2005
Posted to Environment

Ind. Gov't. - Issues about politically balanced boards

The Indianapolis Star's Behind Closed Doors column last Sunday commented:

State law requires the Indiana Board of Education to be both geographically and politically diverse. No more than six of the 11 members can be from the same political party.

So, when Gov. Mitch Daniels last week announced his first six appointees to the board -- he'll get to appoint four more next year -- it was natural to ask the new faces to which party they belong. * * *

The lone independent on the board, according to the governor's office, is Connie Blackketter, a Rensselaer teacher, while the four Democrats are Daniels' pick Michael Pettibone, superintendent of Adams Central Community Schools; Daniels' appointee Jim Edwards, a Santa Claus businessman; Daniel Tanoos, superintendent of Vigo County Schools; and Randle Pollard, an Indianapolis attorney.

At least, that's what the governor's office said. Pollard refused to say what party he belongs to, calling it "irrelevant" -- kind of an odd answer from an attorney when asked for something that has to do with compliance with a state law.

Taking Down Words did a piece about this on Sunday.

The Indiana environmental board laws have similar requirements. For instance, the law creating the state Water Pollution Control Board (WPCB) provides that the Board shall have 12 members. Four of these serve ex officio (by virtue of their office). Eight are appointed by the Governor. IC 13-18-1-3 requires: "Not more than four (4) of the appointed members of the board may be members of the same political party."

In my experience, just as the Star found with the Education Board, it is not easy to ascertain whether the WPCB membership, at a particular point in time, meets the requirements of IC 13-18-1-3. The job of the WPCB is to adopt the state's water rules. Would it be possible to successfully challenge the validity of a newly adopted water rule on the basis that the Board was improperly constituted?

Posted by Marcia Oddi on Tuesday, October 18, 2005
Posted to Indiana Government

Ind. Gov't. - Does public access depend on how the requestor will use the information? Who decides what is a "good" reason? [Updated]

Kokomo mayor Matt McKillip has released this press release, dated 9/30/05, styled "Mayor McKillip Defending Privacy Rights - Denies Requests to Disclose Email Addresses". It reads in full:

Recently, a local youthful political operative has been using Indiana's public records access laws to try to force the City and the Mayor to turn over private email addresses that the City and the Mayor have on file to send newsletters. The City has denied the request based on the law, because Mayor McKillip believes all subscribers have a right to privacy and that email addresses are private. Just as a person should expect to not get harassing sales phone calls and to that extent has been protected by the State's No-Call List, the City Administration believes when an individual provides the Mayor with his/her email address, he/she did not want his/her email address to be shared. Mayor McKillip understands the concerns of the public in that they don't want unsolicited emails (SPAM), don't want to be exposed to computer viruses, and don't want to have email addresses sold to email marketing firms. Releasing email addresses to the public would likely cause any or all of this to occur.

Therefore, the City has followed a long standing State law [I.C. 5-14-3-3(f)] that restricts public distribution of addresses that a City collects and holds citing that email addresses, although new since the address law was put on the books, still qualify as an address. Thus, the City is prohibited from sharing copies of email addresses with the media or others who ask for copies.

Our legal counsel has advised us that we must allow the list of email addresses to be viewed and inspected. However, the City will not distribute paper or electronic copies of email addresses. The individual asking for the list made his intention of sending out unsolicited mail very clear when he posted a message to the Howard County democrat party web site that said, "But this really isn't about me; it's about the (democrat) party... Our (democrat) e-mail newsletters should be going out to these people (those who get the Mayor's emails) as well."

The Mayor vows to keep up the fight for a subscribers right to privacy and will do all he can to not disclose email addresses to any individual or news organization that requests a copy of email addresses. The Mayor has also asked the State legislature to update the access laws on addresses to include more restrictive disclosure on email addresses. Senator Drozda is going to sponsor such privacy protection legislation for the City and for our residents that would protect your email like the No-Call List protects your phone number.

In defending email privacy, the Mayor said, "This is an important privacy issue, not unlike the No-Call List, that has been brought to the forefront by ever advancing technology." The Mayor continued, "Any savvy 14 year old with access to our emails could do irreparable harm to our subscribers and the City by selling our list, spamming our list, mailing viruses to our list or sending fake and harmful messages that appear to be coming from me or the City."

The mayor does not indicate whether he has checked his action with the Public Access Counselor. What if the "local youthful political operative" wants to photograph the list of e-mail addresses that the "that the City and the Mayor have on file to send newsletters." Here is the statute the mayor cites: IC 5-14-3-3.5.

[More] Apparently the above release from the Kokomo mayor was emailed to everyone on the mayor's email list -- the list that is the subject of the dispute. Access it here.

[Updated 10/19/05] TDW asks today, and I'm asking myself the same thing, "Don't know how we missed this story!" The Indianapolis Star ran this story Monday, 10/17/05! It is by John Strauss and headlined "Teen filmmaker points lens at Kokomo politics." Don't miss it!

And the young man DID go to the Public Access Counselor. And DID get a formal opinion, favorable to him, dated Sept. 9th. This puts the mayor's letter this week in an entirely different light.

PAC Karen Davis' opinion is recommended reading. It concludes:

In my opinion, the legislature did not contemplate e-mail addresses as a type of address, which, with corresponding names, a public agency could refuse to copy for a person, and therefore, did not intend for such a list to not be copied. The plain, ordinary and usual sense of “address” does not include e-mail addresses. To put it another way, the terms “e-mail address” and “address” are not interchangeable. Applying the rule that limitations on the rights under APRA are to be strictly construed, I reach the conclusion that the list you seek is a disclosable public record which you are entitled to copy, not limited by IC 5-14-3-3(f).

My research reveals that this question has never confronted the public access counselor, and therefore I was unable to find any guidance in our previous opinions. I encourage public agencies to consult my office prior to denying a record when close questions of statutory construction of the APRA are presented; nevertheless, I do not believe that the City’s refusal to provide you a copy was done with intent to violate the APRA.

CONCLUSION. For the foregoing reasons, I find that the City of Kokomo should provide you with a copy of the list of names and e-mail addresses.

Posted by Marcia Oddi on Tuesday, October 18, 2005
Posted to Indiana Government

Ind. Gov't. - Last of 3-part series on juvenile facility problems

The last of a three-part series in the South Bend Tribune, by Nancy J. Sulok, on the problems the Department of Justice has found in Indiana's juvenile prisons appears today. It is headlined "Mental health policies criticized in report: The Department of Justice also concerned with education in juvenile facilities." Some quotes:

The report was extremely critical of the policy of taking youths off their medications when they enter the juvenile correction system. Youths sentenced to one of the state's facilities travel first to Logansport, where they spend roughly two weeks being evaluated. If the youth is taking medications to treat mental health problems, he routinely is taken off them.

"Logansport's psychiatrist reports that the purpose of this discontinuation practice is to institute a 'wash-out' period,'' the report says. That means the youth is taken off medicines so his behavior can be assessed and the need established for future use of drugs. * * *

A mother and father from Lake County said the discontinuation of medications is the biggest issue they have with the facility in South Bend. Their 15-year-old had received the medicines for ADHD and bipolar disorder while detained in Lake County, but they were withdrawn during intake at Logansport and were not restarted.

"They're trying to make (the boys) mess up on purpose to make them stay longer,'' the mother said.

H. David Donahue, DOC commissioner, said a conference was held after the DOJ's investigation to review and clarify the procedures for continuing, discontinuing or modifying psychotropic medicines when a youth is sent to the department. Efforts are being made to follow appropriate guidelines, he said.

See these earlier ILB entries: 10/17/05 and 10/16/05.

Posted by Marcia Oddi on Tuesday, October 18, 2005
Posted to Indiana Government

Ind. Courts - Judicial Commission admonishes Marion Superior Court Commissioner over ex parte order

A press release from the Supreme Court this morning reads:

The Indiana Commission on Judicial Qualifications issued today a Public Admonition of Commissioner Christopher B. Haile, Marion Superior Court, Civil Division 11. The Commission is a seven-member body comprised of the Chief Justice of Indiana, three lawyers elected by lawyers throughout the State, and three non-lawyers appointed by the Governor. Supreme Court rules allow the Commission to publicly admonish judges for violations of the Code of Judicial Conduct in lieu of proceeding to charges and a public hearing if the judge consents to that resolution.
Here is the Public Admonition document itself. A quote:
The Indiana Commission on Judicial Qualifications, having determined that formal disciplinary charges are warranted, issues instead this Public Admonition of Christopher B. Haile, Commissioner, Marion Superior Court, Civil Division 11. This Admonition is issued pursuant to Supreme Court Admission and Discipline Rule 25 VIII E(7) and with the consent of Commissioner Haile. Commissioner Haile cooperated fully with the Commission in this matter and acknowledges he violated the Code of Judicial Conduct, specifically Canon 3B(8), which requires judges to provide every person with a legal interest in a proceeding the opportunity to be heard and prohibits judges from permitting or considering ex parte communications. * * *

Under certain circumstances, a judge may issue an order of this kind without prior notice to the other party. Generally, this is permissible where the court finds a true emergency exists and the petitioner provides reasons notice should not be required before the court considers the petition. In this case, neither a dental appointment nor school orientation a week later constituted an emergency justifying an ex parte order.

Posted by Marcia Oddi on Tuesday, October 18, 2005
Posted to Indiana Courts

Ind. Econ. Dev. - After losing Mittal to Chicago, Indiana goes after Bass Pro Shops

"Daniels trying to lure mega sports store" is the headline to this story today by Jon Seidel in the Gary Post Tribune. Some quotes:

The governor may attempt to lure Bass Pro Shops into Northwest Indiana at a meeting today with the retail giant’s representatives.

The mega sporting goods store is believed to be considering a site at the Ameriplex complex in Portage, north of Interstate 94.

Gov. Mitch Daniels, store representatives and executives of the Indiana Economic Development Corp. are all expected to be in on the discussion, said Weston Sedgwick, a spokesman for the IEDC. * * *

Sedgwick said economic incentives for the retailer to locate in Indiana also will be part of the talk. “I’m sure that will be part of the conversation,” Sedgwick said.

The state’s policy is to not offer incentives for retailers, Sedgwick said. Chicago nabbed the Mittal Steel national headquarters this month by offering $9.5 million in incentives, while Indiana made no formal offer.

Sedgwick said offers were suggested to Mittal, but he said the company already seemed to have decided on Chicago. “We would have, obviously, been prepared to put together a deal for Mittal Steel,” Sedgwick said. “They were pretty much already set on the Chicago location.”

One would think Indiana might have a "leg up" here, as BMV-head Joel Silverman, the former chief of another sports chain, Galyans, may be available to offer advice to the Governor.

ILB entries on the Mittal decision to locate its national headquaters in Chicago, rather than in steel-producing NW Indiana, are available here: 10/5/05 and 10/8/05.

Posted by Marcia Oddi on Tuesday, October 18, 2005
Posted to Indiana economic development

Ind. Law - Dealing in illegal mushroom may lead to many years behind bars

The Munster (NW Indiana) Times reports today, in a story by Bob Kasarda, that:

VALPARAISO | Portage resident Mark Lynn was back in court Monday to again plead guilty to dealing in a large quantity of hallucinogenic mushrooms. * * *

Lynn pleaded guilty to a Class B felony count of dealing in a controlled substance, Polarek said. The charge typically carries a potential sentence of between six and 20 years behind bars.

Police said Lynn was arrested Dec. 15 when he picked up more than 4 pounds of illegal mushrooms from the post office in Portage. He reportedly told police he ordered the mushrooms over the Internet and had been receiving two packages a month for about a year. He said he sold the mushrooms to others and was earning a profit of $1,000 off every shipment.

The venture came to light when one of the packages was intercepted by the U.S. Department of Customs and turned over to an inspector with the United States Postal Service, according to court records.

Posted by Marcia Oddi on Tuesday, October 18, 2005
Posted to Indiana Law

Law - "11th-hour filers use Web"

"11th-hour filers use Web: New bankruptcy law triggers deadline dash" is the headline to this story by Maureen Hayden in today's Evansville Courier&Press. It begins:

Linda Parker heard stories about lawyers working day and night to beat the deadline before the new, tougher bankruptcy rules took effect, so when she woke up in the wee hours Sunday morning, she got online to see if the tales were true.

At 3 a.m. Sunday, when she accessed the online docket of the U.S. Bankruptcy Court in Evansville, she found she wasn't the only one awake. Parker, the deputy clerk in charge of the Evansville office, saw the number of electronic filings for personal bankruptcy rise right before her eyes. * * *

In 2004, Parker's office handled 2,677 filings for personal bankruptcy. As of late Sunday - the last day to file under the old rules - the number of personal bankruptcy filings for 2005 had already soared to 3,692.

Posted by Marcia Oddi on Tuesday, October 18, 2005
Posted to General Law Related

Monday, October 17, 2005

Environment - More stories today, on meth labs, logging, and the Great Lakes

"Methamphetamine labs leave toxic legacies" is the headline to this story today in the South Bend Tribune. Some quotes:

Making meth involves flammable, corrosive and toxic chemicals that present a significant health threat to those that handle them before, during and after production.

"Generally there's two sorts of dangers when it comes to chemical exposures at meth labs," said Erik Janus, a toxicologist for the Department of Community Health. "Active meth labs tend to release high concentrations of chemicals that can be harmful to one's respiratory system, as well as the skin and the eyes."

Janus said that even after a lab is busted, significant dangers may remain. As the health dangers increase, so do the costs of cleanup.

"There are extreme cases where small single-family homes have been used as meth labs for many, many months before anyone knew anything about them," said Janus. "In those circumstances you have to get rid of drywall and other things."

Janus added that those are usually extreme cases, and most often, crews remove only absorbent items such as drapes or carpets, then wash every surface three times and repaint. * * *

Detective Lt. Tony Saucedo, unit commander for the State Police methamphetamine team, said labs are as dangerous for responding officers as for the drug's makers.

"There's always got to be caution and due care because a lot of those materials are corrosive or flammable," said Saucedo. "If some of these chemicals start mixing with each other, they could cause a reaction. They don't play nicely."

Although police remove chemicals and equipment used in the manufacturing process, the actual decontamination of a lab is left up to the property owner, Janus said.

"It costs money to have an indoor environment cleaned up after a meth lab," Janus said. "It's expensive to do the analysis on the walls to prove the contamination is gone.

"DNR timber plan disastrous says Indiana Forest Alliance" is the headline to this story today in the Monticello Herald Journal. The article recounts the suit the Forest Alliance has filed against the Department of Natural Resources, alledging violation of the state environmental policy act (sometimes known as the Indiana NEPA law).For more on the Indiana law, see the end of the section on logging in this 9/26/05 ILB entry.

In addition to the Great Lakes editorial mentioned in the earlier ILB environmental entry today, the Indiana Environmental Report today lists this South Bend Tribune editorial from 10/16/05, "President should take a stand for Great Lakes plan." It concludes:

It's obvious that residents of Indiana and Michigan have a special stake in the health of the Great Lakes. But, as President Bush seemed to fully understand when he created a Cabinet-level task force, they are a national treasure -- as much so as the Everglades and Chesapeake Bay. An effective restoration and protection plan deserves the support of all Americans and the unqualified backing of the president who got the ball rolling 18 months ago.

Posted by Marcia Oddi on Monday, October 17, 2005
Posted to Environment

Ind. Decisions - Court of Appeals clarifies earlier ruling

In a rehearing opinion today, the Court issues a "clarification" to its earlier ruling in an adverse possession case. The dispute concerns waterfront property in Steuben County and the opinion includes, on page 3, a diagram of the property in dispute. The case is Duane Nodine, et al. v. Gerald McNerney, et al.

Posted by Marcia Oddi on Monday, October 17, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court disciplinary action [Updated]

The Supreme Court has issued a 6-page per curiam displinary action, In the Matter of John H. Freeman, IV. Some quotes:

In this opinion, we find that respondent's pattern of neglecting his clients and his obliga-tions under the Rules of Professional Conduct warrants his suspension from the practice of law for twelve (12) months. * * *

For the numerous violations committed by respondent, he is suspended from the practice of law for twelve (12) months, effective December 1, 2005. Respondent may only be reinstated to the practice of law upon his affirmative demonstration of meeting each of the requirements of Ind. Admission and Discipline Rule 23, Section 4, and that he is fit to resume the practice of law.

Costs of this proceeding are assessed against the respondent.

[Updated 10/18/05] Here is the AP coverage, published this afternoon on the Indianapolis Star website. Quotes include:
A disciplinary hearing officer found Freeman guilty of 11 of 12 charges of misconduct, including allegations that he charged clients "nonrefundable retainers" and then failed to appear for court hearings.

In one case, the court said Freeman was hired to defend someone on a murder charge and did no substantial work on their behalf after accepting $3,000 in payment. When the client asked for the money back, Freeman instead sent a bill for an additional $20, the high court said.

In another case, the court said Freeman withdrew his representation in a court proceeding without notifying his client.

Posted by Marcia Oddi on Monday, October 17, 2005
Posted to Ind. Sup.Ct. Decisions

Law - The new bankruptcy law operative today

Richmond attorney E. Thomas Kemp has a nice piece today on the impact of the new bankruptcy law, that is in effect as of today. Access it here, at Kemplog.com.

Posted by Marcia Oddi on Monday, October 17, 2005
Posted to General Law Related

Ind. Gov't. - 2nd of 3-part series on juvenile facility problems

The second of a three-part series in the South Bend Tribune, by Nancy J. Sulok, on the problems the Department of Justice has found in Indiana's juvenile prisons appears today. Some quotes:

SOUTH BEND -- H. David Donahue, commissioner of the Indiana Department of Correction, has released a summary of corrective actions being taken at three facilities that house juvenile inmates. * * *

The issues in the DOJ's recently released report are similar for South Bend and Plainfield. Among them are:

Inadequate protection. "We find that South Bend fails to adequately protect the juveniles in its care from harm,'' the report says. "We find that the conditions at South Bend violate even the more stringent Eighth Amendment standard.'' (The Eighth Amendment to the U.S. Constitution prohibits the use of cruel and unusual punishment.) * * *

Youth violence. Juveniles have a right, the report notes, to be reasonably safe from harm inflicted by other juveniles in the facility. The report listed specific incidents of assaults that had occurred in the late winter and early spring of 2004. * * *

Insufficient grievances procedures. "The dysfunctional grievance system at South Bend contributes to the state's failure to ensure a reasonably safe environment,'' the report says. Although the DOJ team found some encouraging aspects of the grievance procedures, it nevertheless found the grievance system to be inadequate.

Check here for Part 1.

Posted by Marcia Oddi on Monday, October 17, 2005
Posted to Indiana Decisions

Law - More on "NY court rules Same-sex partner can't sue for malpractice"

"Same-Sex Partner Loses Wrongful Death Action: Panel majority finds right available only to married couples" is the title to a lengthy report by Tom Perrotta in the New York Law Journal. See also the earlier ILB entry from 10/14/05, including a link to the case.

Posted by Marcia Oddi on Monday, October 17, 2005
Posted to General Law Related

Law - More on zoning, churches, and the RLUIPA

"Judge denies church's big building proposal: Congregation seeks God's help in appeal" is the headline to a story today in the Chicago Tribune. Some quotes:

A Korean Methodist congregation asked God on Sunday to send it a judge who would side with it in the next phase of its legal battle to build a church in Long Grove.

Last week, a federal judge ruled that Vision United Methodist Church should be satisfied with a smaller sanctuary than what it had in mind. Citing a federal statute intended to keep municipalities from restricting religious freedom, Vision alleged that in order to control development, the village intentionally annexed the church's 27-acre siteinto what was then unincorporated Lake County. The village then declared that designs for a new church complex were too large for the lot. * * *

Village officials and neighbors rejected a nearly 100,000-square-foot project that included a 900-seat sanctuary, an administration building, a fellowship hall, basketball courts and two parsonages. They still objected when the church reduced the size of the buildings, removed the parsonages and added single-family homes as a buffer. Both plans failed to meet the guidelines of an ordinance that limits how large assembly halls can be.

"Vision does not offer evidence to rebut the village's claim that its intent to enact the statute was not driven by religious animus," U.S. District Judge Charles Norgle wrote in his ruling.

"A church that is 55,000 square feet has ample space to house a congregation of 140 adults and 80 children comfortably," he added. "This is not a situation where the village has restricted Vision to a one-room building where all the members must stand shoulder to shoulder in order to pray."

Attorneys for the church said they plan to appeal. "We are disappointed that the judge's opinion omitted important facts. We will ask the 7th U.S. Circuit Court of Appeals to take a closer look at the facts and law and reverse his decision," attorney Andy Norman said in a written statement. * * *

Other churches have faced the same struggle as Vision, although the circumstances often vary. In 2003, Petra Presbyterian Church sued the Village of Northbrook for the right to occupy space in an industrial park in what officials say is a violation of the town's zoning laws. A federal judge ruled that year that Northbrook has the right to prohibit the church from using the warehouse-like building for worship, but members continue to seek ways to gain access to the space.

For background, see this 2/23/05 ILB entry titled "In landmarking, Daley believes nothing's sacred" that includes links to earlier entries.

Posted by Marcia Oddi on Monday, October 17, 2005
Posted to General Law Related

Environment - Stories today include emissions, CAFOs, and the Great Lakes

Emissions."Indiana, EPA may collide on emissions: It's unknown if state is really at risk in 'game of chicken'" is headline to this Lesley Stedman Weidenbener story today in the Louisville Courier Journal. It begins:

INDIANAPOLIS -- More than two decades after the state launched its vehicle emissions testing program, officials are wrestling with whether to eliminate it in Southern Indiana.

They face the same concern they had when they started it: federal sanctions that could cost the state millions of dollars in highway funds.

The big question is whether Indiana -- which requires testing in Clark and Floyd counties and two others near Chicago -- is truly at risk of penalties.

"You're in a large game of chicken" with the federal government, said Thomas Easterly, commissioner of the Indiana Department of Environmental Management.

The U.S. Environmental Protection Agency, however, rarely imposes sanctions. But it is willing to do so when state and local officials refuse to comply with plans they've made to reduce air emissions in their regions -- or when they change those plans without permission.

CAFOs. "Commissioner wants local control of CAFOs" is the headline to this Seth Slabaugh story today in the Muncie StarPress. Some quotes:
MUNCIE - Delaware County Commissioner John Brooke has authored a proposed ordinance to give the Metropolitan Board of Zoning Appeals authority to site and regulate confined feeding operations (CFOs) and concentrated animal feeding operations (CAFOs) within the county. * * *

The commissioner said his goal was to "provide for some local control" over larger livestock and poultry operations.

"I recognize that all confined animal feeding operations are obligated to obtain a permit from IDEM (Indiana Department of Environmental Management), but the state regulations do not allow any type of local control as to an appropriate site or interaction with surrounding residents or businesses," Brooke said in a letter to the city-county planning commission.

Asked by The Star Press what he thought about the proposed ordinance, Delaware County pork producer Ron Orebaugh said: "IDEM already has regulations in place. It sounds like this would duplicate what IDEM is already doing. So you would have double standards. IDEM's standards pretty much cover everything. I can't think of what IDEM's standards wouldn't cover." * * *

Delaware County has a dozen CFOs, four of which are CAFOs. Under state law, a CFO is a confined feeding operation that contains at least 300 cattle, 600 swine, or 30,000 fowl. CAFOs are larger confined feeding operations, including those housing at least 700 cows, 2,500 swine, 30,000 ducks, 82,000 chickens, and 55,000 turkeys. * * *

The state regulates the construction of CFOs and CAFOs, as well as their land application of manure and their storage of manure in lagoons. The state also inspects the facilities and sets standards to protect water quality.

The ordinance proposed by Brooke requires CFOs and CAFOs to set back at least 1,000 feet from a residence, school or hospital (800 feet farther than is currently required by county ordinance), 500 feet from a water body or drain, and 1,000 feet from a water well. It also calls for "adequate plans for the control of dust, noise, vectors and odors," something state regulations don't address.The proposed ordinance also creates other standards. For example, it would allow the BZA to require a CFO or CAFO to provide surety to guarantee that operations are properly closed.

If the proposed ordinance is adopted, CFOs and CAFOs would be regulated by the BZA in a manner similar to how salvage yards, gravel pits, and refuse disposal sites are regulated.

The Great Lakes. The Indianapolis Star's lead editorial today is titled "Don't sweep away Great Lakes cleanup." Some quotes:
The effects of Katrina are still being felt in the Great Lakes region, far from where the hurricane made landfall.

A $20 billion proposal to clean up the Great Lakes over the next 15 years appears to be Katrina's latest victim, a casualty of $200 billion in federal aid targeted for hurricane relief. Katrina isn't mentioned in a leaked report that now calls for keeping Great Lakes expenditures "within current budget projections." But the financial problems the storm created can be the only explanation for the abrupt turnabout in White House policy. * * *

Indiana has a lot at stake in the proposed undertaking. It would help pay for a $400 million cleanup of the Indiana Harbor and Ship Canal, provide federal funding for fixing antiquated sewer systems in many Indiana communities, restore wetlands and protect Hoosier beaches that are invaluable tourist attractions.

As with other Great Lakes states hit by the loss of manufacturing and auto industry jobs, Indiana is in no position to do much about the Great Lakes without federal help.

Posted by Marcia Oddi on Monday, October 17, 2005
Posted to Environment

Ind. Gov't. - NW Indiana Times joins Indy Star in calling for teeth in PAC law

The Munster (NW Indiana) Times editoralizes today:

As it stands now, the public access counselor is a tiger with no teeth. Sure, she can give advice, but that's all it is. Government agencies and officials can ignore it without repercussions.

A citizen can take the agency to court, but the cost of legal representation makes this an unrealistic option for most.

The General Assembly needs to show its commitment to open government by requiring public officials to abide by the public access counselor's formal opinions.

And to enforce the law, the lawmakers should enact strong penalties for those who don't comply with the access counselor's directives.

Read the entire editorial here. And see also this ILB entry from 10/12/05 quoting the Indianapolis Star editorial of that date.

Posted by Marcia Oddi on Monday, October 17, 2005
Posted to Indiana Government

Ind. Law - More on "So, when did the Indiana Utility Regulatory Commission become a welfare-assistance agency?"

The Fort Wayne Journal Gazette ran an editorial on 10/8/05 headlined "So, when did the Indiana Utility Regulatory Commission become a welfare-assistance agency?" (See the ILB entry here.) In the Sunday Munster (NW Indiana) Times column Mark Kiesling had a piece titled "NIPSCO's charity begins at (your) home." Some quotes:

[T]he Northern Indiana Public Service Co. in its inestimable wisdom has decided unilaterally there is one charity I must support, and -- surprise! -- it's theirs.

For the second year in a row, all of us who pay NIPSCO gas bills will be kicking in to the "Winter Warmth" program, which goes to subsidize low- and middle-income households that are having trouble making natural gas payments.

It's on your bill as a so-called "tracker," which is in reality a surcharge.

The average NIPSCO customer paid 50 cents per month extra on their bills to fund the program, and the utility regulatory commission is considering allowing that to be raised to 65 cents.

Not a huge amount, but multiply that by one year ($7.80) and NIPSCO's 712,000 gas customers and you get $5,553,600, which now starts to seem like a lot of cash. Add that to the fact that NIPSCO will use a sliding scale in which big users pay more and the utility will come up with $7 million of our money to be redistributed.

This would boost the "Winter Warmth" revenue from the $5.5 million to an estimated $7.9 million, because NIPSCO is not without a heart and is kicking in $900,000 of its own.

This will, I'd guess, not endanger any corporate bonus plans, but it's still better than a swift kick in the rear end. Still, you'd think the utility with among the nation's highest electric rates would be able to do a little better than that.

Posted by Marcia Oddi on Monday, October 17, 2005
Posted to Indiana Government | Indiana Law

Sunday, October 16, 2005

Environment - Idaho following the lead of Indiana?

Tondu's proposed coal gasification plant has made the news in Idaho. (See a number of ILB stories by typing "Tondu" in the search box.) Today the Idaho State Journal has a story headlined "Cleaner plant still rejected by community in Indiana: Air quality a concern for St. Joseph County." Some quotes from the Idaho story:

NEW CARLISLE, Ind. - It appears ”clean coal“ isn't clean enough for residents of St. Joseph County, home to the University of Notre Dame's Fighting Irish and a proposed 550 megawatt coal gasification plant.

The St. Joseph's City/County Council, based in South Bend, Ind., rejected Tondu Corp.'s request for a special use permit to open an integrated gasification combined cycle, in which coal is converted into gas to produce power.

The council asked the corporation to return after compiling information on the proposal, its emissions and anticipated environmental impacts. Tondu provided the information; nonetheless, the council recently rejected Tondu Corp.'s request to have the six-month waiting period waived for reapplying for a special use permit.

The Indiana Department of Environmental Management estimates the Hoosier State will need 2,500 additional megawatts of electricity within three years. Also, the department recognizes that coal gasification is cleaner than traditional methods of producing coal power.

But, as has been the opinion of many in the Pocatello [Idaho] area, where a similar-sized coal gasification plant has been proposed, residents in St. Joseph County have said any new pollution is bad, and Tondu Corp. should take its business elsewhere.

During public forums, the people of St. Joseph County have expressed similar concerns as Pocatello residents. Many of their questions focused on air quality.

There is more. The top story in today's Idaho State Journal is headlined: "Coal gasification and us: Proposed local plant sparks public debate." Some quotes:
POCATELLO - Seven months have passed since the surprise announcement: An out-of-state energy group had plans to build a 520 megawatt coal-gasification plant to generate electricity just outside Pocatello at the idled FMC plant site.

In the ensuing time, in which local leaders have been exposed to a crash course in chemistry 101, some area residents have taken sides on the issue in barroom and backyard conversations. * * *

If built, the coal gasification plant at the FMC site would be the largest of its kind in the nation and the first model built west of the Mississippi River. It would require 7,000 tons of coal to be brought via rail to the site every day, as well as a daily estimate of 5 million gallons of water, which could come from the Pocatello Water Treatment Facility.

The story is accompanied by this photo, which is identified as "The oxygen unit of the SG Solutions coal gasification plant at Terre Haute, Ind."

Posted by Marcia Oddi on Sunday, October 16, 2005
Posted to Environment | Indiana economic development

Ind. Gov't. - More on Elkhart County comprehensive land-use plan

The Elkhart Truth today has a long editorial titled "Keep land-use plan strong." Some quotes:

Even after more than 15 months of discussion, hearings and study, there's still misconceptions and unease -- even among members of the Elkhart County Plan Commission -- about what the proposed land-use plan will mean for the county.

The plan is meant as a guiding document that states the county's vision for land use. That vision is to drive development closer to cities and towns where services are available, to stop sprawl and to make smarter, better-planned growth a priority in Elkhart County.

After the plan is approved, the next steps in the process -- drafting and approving the supporting ordinances and policies -- are what will really help further define how that vision will be put into action. It's the actual meat and potatoes. And it won't be an easy task.

On Thursday, the plan commission, by a 5-3 vote, elected to wait another month before giving a recommendation to the commissioners. It's a disappointment, but not a total surprise.

The plan commission will have a second public hearing on the land-use plan at its meeting Nov. 10. They are expected to vote on a recommendation that day as well.

Based on questions from plan commission members, it appears there are still misconceptions that this land-use plan is going to stop people from developing outside the city limits, hurting programs like 4-H, and overloading city schools and unprepared municipalities.

The plan will not stop development in the county, it will just make it more difficult to develop where services are not readily available. * * *

Elkhart County Commissioner Mike Yoder, a member of the plan commission, said the document acknowledges the county's "frontier attitude" and that at some time in the future there will be "total build-out" if something isn't done. * * *

We have supported the plan throughout its development, but have been increasingly concerned as it becomes a little weaker as it makes its way through the process. When the newest version was handed out Thursday, it was a much more watered-down document. Words like "will" and "shall" were replaced with "should" in most instances. * * *

If county officials are serious about stopping sprawl and meeting the other worthy goals of this important comprehensive plan, they need to take the tough steps necessary to do so. Watering down the language isn't taking that tough stand. It just makes the document easier to pass through those inclined not to support it anyway. They haven't spent months on this only to ease off now. A weak document also leaves room for those making the land-use decisions to find a way back to the way things have always been done. That's simply unacceptable.

The ordinance changes will be a way they can redeem themselves and toughen it up again. It's too important for the long-term growth and development of Elkhart County not to be a strong document.

An earlier ILB entry on the proposed comprehensive plan was posted 9/16/05. It includes links to the draft plan.

Posted by Marcia Oddi on Sunday, October 16, 2005
Posted to Indiana Government

Ind. Gov't. - First of 3-part series on juvenile facility problems

The South Bend Tribune today has published the first of a 3-part series by Nancy J. Sulok on the problems the Department of Justice has found in Indiana's juvenile prisons. An accompanying story from the AP lists the minimum improvements "needed by the South Bend and Plainfield Juvenile Correctional Facilities and the Logansport Juvenile Intake/Diagnostic Facility to bring them into compliance with the 1997 Civil Rights of Institutionalized Persons Act, as identified by the Civil Rights Division of the U.S. Justice Department in Sept. 9 letters to Gov. Mitch Daniels." Some quotes from Sulok's story:

The U.S. Department of Justice recently released a scathing report on the South Bend facility, in the northwest part of South Bend at 4650 Old Cleveland Road.

Similar critical reports released at the same time address problems at the Logansport Juvenile Intake/Diagnostic Facility and the Plainfield Juvenile Correctional Facility.

The three facilities are among eight juvenile prisons operated by the Indiana Department of Correction. Delinquent youths can be sent to any facility in the state, not necessarily to the one closest to their homes.

A DOJ team visited the Logansport facility May 10 and 11, 2004; the South Bend facility May 12 through 14, 2004; and the Plainfield facility June 8 through 11 and again on June 30 through July 2, 2004.

But it did not report its findings until last month, in letters dated Sept. 9 and sent to Gov. Mitch Daniels. The letters became public last week.

The DOJ concluded that the problems were so bad they violated the basic civil rights of the teen inmates by not protecting them from physical and sexual assaults.

The most significant problem reported at Logansport, however, involved mental health care.

In fact, the DOJ said, "We find that the mental health care at Logansport is so egregious that it violates even the most stringent Eighth Amendment standard." The Eighth Amendment to the U.S. Constitution prohibits the use of cruel and unusual punishment.

The most serious problem during the intake process is the policy to take youths off of the medications they had been taking to control their mental disorders.

Some background may be found in this ILB entry from 10/14/05.

Posted by Marcia Oddi on Sunday, October 16, 2005
Posted to Indiana Government

Environment - Stories today on CAFOs, health screenings

CAFOs. Updating this ILB report from 10/12/05 on the the approval of a hog farm in Vallonia by the "Jackson County Board of Zoning Appeals ... Tuesday night, that cleared the way for an 8,000-head confined hog operation in Redding Township," quoting a Seymour Tribune story, is this follow-up published yesterday, also in the Tribune. Both stories were written by Danya Cain. Some quotes:

A long legal journey lies ahead for an approved 8,000-hog confined feeding operation in Redding Township, says a Columbus attorney.

Pete King, who represents Jennings Water Inc., said Thursday at least two appeals will be made regarding the Tuesday decision by the Jackson County Board of Zoning Appeals to allow Talara Lykins, Elizabethtown, to build two 400-by-80-foot hog barns on a 10-acre tract of land northeast of Reddington.

King said Jennings Water Inc. is concerned with the voting procedure and will appeal how the decision to allow the operation was reached.

“We don’t believe the law allows a do-over or an instant replay,” he said. “We believe there are some very important issues that need to be reviewed,” he said.

Because the BZA has no appeals process, any appeal of a board decision means a civil lawsuit must be filed.* * *

The first step in an appeal concerning the issuance of Lykins’ Indiana Department of Environmental Management permit [that] is scheduled for Monday. The pretrial conference will take place before an administrative judge at IDEM’s offices.

Joe Miller, an attorney speaking for Lykins at the BZA meeting, said IDEM requirements for the operation were met or exceeded.

Health screenings. The Evansville Courier&Press has a story by Mark Wilson that reports:
More than 100 former miners who may have been exposed to toxic waste from Alcoa that was buried at the Squaw Creek mine in Warrick County have already participated in health screenings offered by the aluminum maker.

"It sounds like to me there is a lot of concern out there, which there should be," said Bil Musgrave, a former miner there and a member of United Mine Workers Local 1189.

Wastes disposed of at the former strip mine include chrome sludge and coal tar pitch. The waste includes hazardous chemicals such as chromium and cyanide, which may cause cancer and damage to the lungs, kidneys and central nervous system. * * *

Millions of gallons of industrial byproducts from Alcoa were legally disposed of in the mine between 1965 and 1979. The disposal was done with the consent of the Indiana Department of Health, which handled environmental issues prior to the creation of the Indiana Department of Environmental Management.

Until the mine was closed in 1990 it provided coal fuel for Alcoa's power plant. Alcoa jointly operated the mine with Peabody Coal Co.

Alcoa officials contend that the risk to the miners was minimal and that the company's own employees have been exposed to the chemicals - although not in the same ways - without any signs of significant health problems being reported or uncovered.

Posted by Marcia Oddi on Sunday, October 16, 2005
Posted to Environment

Not law but interesting - Hoosier blogs are featured today

Tracy Warner of the Fort Wayne Journal Gazette has a story today titled "Indiana in the Blogosphere: More local Web logs tackle more serious issues." The piece surveys a number of Hoosier blogs, including of course those from Fort Wayne. Several Indiana law blogs are featured:

•Indianapolis attorney Marcia Oddi has Indiana Law Blog, which focuses not only on legal issues but government-related issues. Oddi often displays long excerpts from stories in newspapers throughout the state.

Earlier this year, Oddi ceased daily blogging because of career demands, prompting such an outcry from her many readers that she resumed it.

• Other bloggers who have the best of Indiana newspapers include Masson’s Log by Doug Masson of Monticello – who is becoming the authority on the time zone maze – and Kemp’s log, an environmentally heavy log by lawyer E. Thomas Kemp of Richmond.

The story includes a link to Tracy Warner's own blog, where links are provided "to the Hoosier blogs mentioned in my Sunday Perpsective page commentary as well as a few others with local or Indiana ties."

Posted by Marcia Oddi on Sunday, October 16, 2005
Posted to General News

Law - Nationwide, "Scandals Becoming an Issue in State Races"

"Scandals Becoming an Issue in State Races" is the headline to this story today in the LA Times. The lead:

Even as clouds of scandal hang over Washington, charges of political wrongdoing have surfaced in state capitals in Ohio, New Mexico, Tennessee and elsewhere across the country, touching members of both parties and elevating ethics as a campaign issue in nearly a dozen states.
Among the states cited "where charges of political malfeasance have been making headlines" are all of Indiana's adjoining states except Michigian:
• In Kentucky, 11 current or former members of Republican Gov. Ernie Fletcher's administration have been indicted as part of an investigation into Fletcher's hiring practices. The governor has issued a blanket pardon for all involved — excluding himself — which antagonized many Kentucky voters.

• In Illinois, Democratic Gov. Rod Blagojevich has been tied to a teachers pension fund scandal. A criminal probe is being led by U.S. Atty. Patrick J. Fitzgerald, who also is heading the Washington investigation into the leak that unmasked CIA operative Valerie Plame.

• In Ohio, Republican Gov. Robert A. Taft has pleaded no contest to violating state ethics laws in connection with gifts he received. He has also been battered by the so-called "Coingate" scandal involving the loss of state funds in rare coin investments made by a major GOP donor.

Readers of the ILB will recall earlier entries reporting on ongoing investigations in our neighboring states. To locate the entries, type the state's name in the search box to the right.

Posted by Marcia Oddi on Sunday, October 16, 2005
Posted to General Law Related

Ind. Decisions - Court of Appeals finds punitive damages award inappropriate

The Munster (NW Indiana) Times reports today, in a story by Bill Dolan headlined "Appeals court reduces $16M verdict in 1996 crash: High court says punitive damages of $3.4M is excessive," that:

HAMMOND | The Indiana Court of Appeals has reduced a $16 million verdict in an accident that injured a Portage family and killed a Gary woman.

The high court ruled a Lake Superior Court jury erred last year when it awarded punitive damages in the 1996 collision involving the Portage family's car and a moving van at the intersection of Interstate 65 and the Indiana Toll Road in Gary. * * *

Last year's jury awarded $1,145,000 in compensatory damages for the victims' injuries and another $15 million for punitive damages.

The high court stated punitive damages cannot exceed three times the compensatory damage amount. The high court further ruled that even $3.4 million in punitive damages is excessive. A decision on the final award is back in the hands of the trial court judge.

The appeals judges stated there wasn't any evidence Westray was speeding, intoxicated, drowsy or was ignoring the road to talk to someone or listen to the radio.

The Times report, as it turns out, is somewhat belated, as the decision was issued 9/14/05. The case is Ricky Westray, et al v. Delores Wright, et al. Access it here, a 14-page opinion by Judge Baker. Some quotes from the opinion:
Because punitive damages are imposed to deter and punish wrongful activity, they are quasi-criminal in nature and require a different showing than that required for an award of compensatory damages. Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003). * * *

According to our Supreme Court, “the perverseness that public policy will permit the courts to punish [by awarding punitive damages] is conscious and intentional misconduct which, under the existing conditions, the actor knows will probably result in injury.” Id. In other words, the defendant must have “subjected other persons to probable injury, with an awareness of such impending danger and with heedless indifference of the consequences.” Id. The tortious conduct must be marked by malice, fraud, gross negligence, or oppressiveness not resulting from “a mistake of law or fact, honest error of judgment, overzealousness, mere negligence or other noniniquitous human failing.” Bud Wolf Chevrolet, Inc. v. Robertson, 519 N.E.2d 135, 137 (Ind. 1988). * * *

In the aggregate, the record reveals a truck driver who was clearly negligent in the operation of his vehicle. Tragically, his negligence resulted in fatalities and forever changed the lives of the survivors. But there is simply not clear and convincing evidence that his behavior exceeded mere negligence. Nothing in the record indicates that he acted purposefully, with malice, or with gross negligence. Charging him with constructive knowledge of the dangerousness of his vehicle is insufficient to reach the mental state that is required to sustain a punitive damages award. Accordingly, we conclude that the jury’s award of punitive damages as to Westray was improper and that the trial court should have granted the appellants’ motion for judgment on the evidence. * * *

The Wrights cross-appeal the trial court’s reduction in the punitive damages award from $15,000,000 to $3,435,000. * * * Inasmuch as we have concluded that the punitive damages award was inappropriate, the arguments that the Wrights raise in their cross-appeal are no longer at issue. * * *

In sum, we conclude as follows: (1) the jury’s finding of negligence with respect to appellants and its corresponding award of compensatory damages are appropriate; and (2) the jury’s award of punitive damages was inappropriate inasmuch as there was not clear and convincing evidence that Westray or Bekins acted with the mental state sufficient to sustain such an award. The judgment of the trial court is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. [my emphasis]

Posted by Marcia Oddi on Sunday, October 16, 2005
Posted to Ind. App.Ct. Decisions

Saturday, October 15, 2005

Environment - The Clean Water Act

The federal Clean Water Act is the subject of th lead NY Times editorial today:

The Clean Water Act of 1972, one of the most successful and popular of the environmental laws enacted under Richard Nixon, will turn 33 next week. But what should be a celebratory moment is tinged by concern arising from the Supreme Court's decision this week to accept two cases that challenge the law's reach and constitutionality. * * *

The better-known of the two cases involves John Rapanos, a Michigan landowner who faces steep criminal and civil charges for filling in protected wetlands on three sites in defiance of the Army Corps of Engineers and the Environmental Protection Agency.

Mr. Rapanos has argued that the Clean Water Act applies only to navigable waterways, like rivers and lakes, and to streams and wetlands directly adjacent to such waters. His properties are 20 miles away from any navigable water, although two are within the Lake Huron drainage system and one runs through a drain to a navigable river. * * *

[Mr. Rapanos argues] that Congress improperly applied the clause on interstate commerce to regulate - in the words of Mr. Rapanos's appeal - "non-economic intrastate activities like the filling of remote, nonnavigable intrastate wetlands in this case."

In response, the Justice Department argues that comprehensively protecting the nation's waters involves "core federal interests" and is thus well within Congress's purview.

The department is right. At issue here is far more than Mr. Rapanos's land. At issue is the ecological integrity of thousands of miles of small streams and at least 20 million acres of wetlands - waters necessary for, among other things, wildlife, flood control, irrigation and clean drinking water.

See this ILB entry from 10/12/05 re the Supreme Court's decision this week to hear the Raponas appeal.

The ILB has a number of past Raponas entries. See particularly this one from 7/31/04 titled "Wetlands: Rapanos litigation continues," reporting on the 6th Circuit opinion that is now the subject of the Supreme Court cert grant. An Indianapolis attorney was among those representing Mr. Raponos before the 6th Circuit, but it appears that he now has a new legal team.

Posted by Marcia Oddi on Saturday, October 15, 2005
Posted to Environment

Law - Disorder in Ohio courtroom

The Cincinnati Enquirer has an editorial today headed "Ensuring order in Mason's city court." It begins:

Critics call Mason Municipal Court Judge George Parker a courtroom bully - a judge whose behavior mocks the fairness and civility he has sworn to provide.

But like the defendants who come before him, he will deserve a fair hearing when he goes before an Ohio Supreme Court disciplinary board on charges of degrading behavior.

He should expect what any defendant, witness or victim should expect from a judicial body - to be treated with courtesy and simple human respect.

We think that's what he'll get before the disciplinary board. After all, if people intimately involved with the law aren't civil, discreet, governed by reason and impartiality, who will be?

Which is precisely the point.

The complaints filed against Parker by the Supreme Court's disciplinary board include his ordering the arrest of a defendant's mother after she raised her hand to ask a question and his degrading a victim-witness. Other legendary Parker antics include demanding a defendant tell him where she had gotten marijuana, then calling the dealer on the court's speaker phone, and rising to scream from the bench. * * *

This is the stuff of tacky TV court shows.

Posted by Marcia Oddi on Saturday, October 15, 2005
Posted to General Law Related

Ind. Courts - More on "Location of new Vigo County court causes concern"

Updating Thursday's ILB entry titled "Location of new Vigo County court causes concern" is this story from Friday's Terre Haute TribStar reporting that all is well. Some quotes:

[Division 2 Judge Phil Adler] also said he decided to move the Division 2 court because a new judge, to be appointed by Gov. Mitch Daniels by next month, will not have the benefit of attending a seminar for newly elected judges.

”We have all attended that seminar for newly elected judges, but this position has been created through legislation. The new judge will probably need some mentoring,“ Adler said. ”It will be more convenient to have Judges [David] Bolk and [Michael] Eldred to rely on at the courthouse instead of a new judge making telephone calls back and forth.“

Earlier this week, Eldred and Sheriff Jon Marvel voiced concern over security with the transporting and monitoring felons to the temporary site. Eldred told commissioners the new sixth court, under a proposed plan, is to handle 50 percent of all felony criminal cases next year. That new court also will handle divorce cases. That additional security to move the inmates from the county jail to the temporary courtroom could have cost as much as $100,000.

Division 2 court will be moved back into the County Courthouse after one year, before the completion of the more than $8 million courthouse interior renovation project. The project is slated to be finished in about 11/2 years.

Posted by Marcia Oddi on Saturday, October 15, 2005
Posted to Indiana Courts

Ind. Gov't. - More on "FSSA urges 'localization,' not 'privatization,' at Richmond State Hospital"

Updating this ILB entry from last Sunday, 10/9/05, headed "FSSA urges "localization," not "privatization," at Richmond State Hospital," quoting stories from the Richmond Palladium-Item, is this P-I story from Friday, reporting on community forums held Thursday to gauge community support for the state's proposed privatization of Richmond State Hospital. Some quotes:

Without disclosing too many details, Richmond State Hospital Superintendent Jeff Butler said the state hospital is discussing possible plans to form its own not-for-profit organization with the intention of running the state hospital.

Plans are still preliminary, but he said the state hospital would like to include many organizations that are involved with mental health services. "We're at the point of discussing this to consider this," Butler said. "It puts us in a position of not knowing if everything's going to be the same as it is. It's scary, it's very scary."

He said he wants to protect jobs, benefits and patients. "We want to make sure we're a provider for the future," Butler sad.

Roob said he believes that people in Indianapolis cannot properly operate a facility in Richmond. Mental health is the only part of FSSA where the state offers direct care to patients, and he would like to see the state stop doing that.

Richmond Common Councilman Gil Klose asked whether the state hospital would operate under a maintenance contract or whether assets would be transferred to the not-for-profit.

"The state will continue to own the physical assets of Richmond State Hospital," Roob said, but he said he would like those turned over to the not-for-profit.

Roob also said he would like the FSSA to change the way it pays for mental health and addiction services. State hospitals are paid in a monthly lump sum, but he would like to see that change to paying organizations per patient per day. "The governor and I believe in the entitlement of individuals and not institutions," Roob said.

Posted by Marcia Oddi on Saturday, October 15, 2005
Posted to Indiana Government

Ind. Law - Morgan County lesbian couple fight to keep child

Two papers today, the Fort Wayne Journal Gazette and the Evansville Courier & Press, carry this AP story by Deanna Martin, here and here, respectively. Some quotes:

INDIANAPOLIS - A lesbian couple from Morgan County has gone to the Indiana Court of Appeals to win the adoption of a 1-year-old girl approved by a judge in one county but denied by a judge in another.

The Morgan County Office of Family and Children placed the child with Becki Hamilton and Kim Brennan two days after the child was born in 2004, and asked the couple to consider adoption. Hamilton and Brennan have lived together for more than a decade and were qualified by the state as foster parents.

Morgan Circuit Judge Matthew Hanson was conducting hearings to terminate parental rights of the girl's birth mother when he learned that Hamilton and Brennan were living together and were not married. He ordered the Office of Family and Children last to look for a married couple to adopt the baby, instead. Court records show the judge's decision had nothing to do with Hamilton and Brennan as a same-sex couple, but with being unmarried.

The couple turned in January to adjacent Marion County in their bid to keep the girl, and Superior Court Judge Charles Dieter on April 21 granted the adoption, saying it was in the child's best interest to be with the couple.

When the couple petitioned to released the girl from her status as a ward of the Morgan County Office of Family and Children, Judge Hanson rejected it and ordered that she be moved to the custody of another couple.

Hamilton and Brennan, who have retained custody of the child during the legal battle, now are appealing those two orders by Hanson.

The Indiana Department of Child Services, which oversees the Morgan County office, says only married couples can file jointly for adoption: unmarried couples and individuals must apply as single parents. The state also argues that Dieter should not have ruled as he did in Marion County.

Here is the docket number to the case:
Case Number: 55 A 01 - 0506 - JV - 00289
IN THE MATTER OF INFANT GIRL:W, ET AL -V- MORGAN CO FAM & CH
Interlocutory

Posted by Marcia Oddi on Saturday, October 15, 2005
Posted to Indiana Law

Friday, October 14, 2005

Law - A Crash Course in Constitutional Law

This is kind of fun. Michael C. Dorf, the Michael I. Sovern Professor of Law at Columbia University in New York City, has written a column for FindLaw's Writ, titled "A Crash Course in Constitutional Law for Harriet Miers--and Everybody Else." A sample:

What are sometimes called "separation of powers" problems nonetheless arise because the actual constitutional architecture is more complicated. For example, the President plays a role in making law, by either signing or vetoing bills. Likewise, the Senate has a hand in executive administration, as it must approve Cabinet-level and other high-ranking officials (what the Constitution calls "principal officers"). Thus, when the branches of government attempt newfangled arrangements, one cannot argue that they are necessarily unconstitutional because they scramble the three powers; the Constitution does that, too.
Access it here.

Posted by Marcia Oddi on Friday, October 14, 2005
Posted to General Law Related

Ind. Decisions - Transfer list for week ending October 14, 2005

Here is the Indiana Supreme Court's transfer list for the week ending October 14, 2005. Four cases were granted transfer this week; the opinions for three of them may be found via this ILB entry from earlier this morning.

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 14, 2005
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending October 14, 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 14, 2005. There are 35 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 14, 2005
Posted to NFP Lists

Law - NY court rules "Same-sex partner can't sue for malpractice"

Newsday.com reports today that:

A divided state appeals court ruled Thursday that a Vermont man cannot sue a Manhattan hospital for malpractice in the death of his longtime partner, saying it could not provide a "judicial imprimatur" for same-sex marriages.

The court overturned a Long Island judge's 2003 decision that John Langan could sue St. Vincent's Hospital in Manhattan for alleged malpractice in the death of Neil Conrad Spicehandler.

The Appellate Division, in a 3-2 vote, decided that Langan had no standing to sue the hospital despite the couple's 2000 civil union in Vermont. Attorneys for Langan claimed the civil union gave him standing as a spouse to sue the hospital under New York law.

The decision is Langan v. St. Vincent's Hospital of New York (10/11/05). Access it here.

Posted by Marcia Oddi on Friday, October 14, 2005
Posted to General Law Related

Ind. Decisions - Court of Appeals issues three reversals today

Three decisions, three reversals. The first is in Michael Lawson v. Marion County Office of Family & Children, a parental termination case where the opinion by Judge Najam concludes that "Under these circumstances, we conclude that Father’s due process rights were significantly compromised in that he was unable to cross-examine Bergen and Mother regarding critical evidence against him."

In the second, John L. Brimhall, et al. v. Jeffrey A. Brewster, et al., Judge Sullivan writes:

[W]e are very much of the same mindset as this court in State ex rel. Jackson v. Owen Circuit Court, 160 Ind.App. 685, 694, 314 N.E.2d 73, 79 (1974). In that decision, we “reluctantly” concluded that the trial court exceeded its jurisdiction in entering an order nunc pro tunc to show that evidence was filed when no written note, minute, or memorial existed upon which to base the order, and furthermore, that the recollection of the judge was at variance with the Clerk’s Certificate to the record of the proceedings. As this court noted, human memory and recall is not perfect and some times will fail. Id. Thus, a written memorandum made at the time ensures a more accurate basis for the later entry than does a mere recollection which may be dimmed by the passage of time and colored or altered by intervening events. Id.

Consequently, we conclude that the trial court erred in entering the nunc pro tunc order which deemed the dismissal to be without prejudice in order to validate the later proceedings. Thus, we invalidate both nunc pro tunc orders entered by the trial court in addition to all other rulings made after Novermber 15, 2002, including the default judgment entered in favor of the Brewsters on their claim. The judgment is reversed.

In an 18-page opinion, William J. Brant, Jr. v. Robert R. Krilich, Judge Sullivan begins:
Appellant William J. Brant, Jr. appeals from the trial court’s decision that Appellee Robert Krilich is entitled to a pro rata portion of certain bank accounts with which Brant is affiliated and to Brant’s ownership interest in several limited liability companies (“LLCs”). He presents numerous issues for our review, which we restate as two dispositive issues: (1) whether the various Garnishee Businesses2 should have received notice of the garnishment proceeding involving the checking accounts in their respective names, and (2) whether the Business Entities should have received notice of Krilich’s intent to seek Brant’s ownership interests in them. We reverse and remand for further proceedings not inconsistent with this decision. Because of the confusion which has existed throughout the original prosecution of this action, we also offer some direction and guidance to the trial court in resolving other issues which will necessarily arise upon remand.

Posted by Marcia Oddi on Friday, October 14, 2005
Posted to Ind. App.Ct. Decisions

Law - Vioxx jurors question witnesses

The headline to the story today in the Marketplace section of the Wall Street Journal (paid subscription only) reads "Jurors play lawyer in Vioxx case, asking tough questions." The story begins:

Before jurors in Atlantic City, N.J., decide whether Merck & Co. should be liable for the heart attack of a man who took its Vioxx painkiller, they'd like to know a few things. And in a practice that is rare but starting to spread, they are getting to ask for themselves.

Posted by Marcia Oddi on Friday, October 14, 2005
Posted to General Law Related

Ind. Decisions - Supreme Court posts three on habitual offender enhancements

Posted late yesterday afternoon, Anthony Jacobs v. State of Indiana, a 9-page opinion by Chief Justice Shepard, begins:

In 2000, this Court held that a misdemeanor handgun charge enhanced to a felony could not be further enhanced by use of the general habitual offender statute. Ross v. State, 729 N.E.2d 113, 116-17 (Ind. 2000). We now consider whether persons whose cases were resolved prior to that holding are entitled to its benefit retroactively in post-conviction proceedings. We conclude that they are.
In State of Indiana v. David Leon Jones, CJ Shepard writes:
Petitioner David Leon Jones challenges a habitual offender enhancement based upon a handgun charge that was enhanced to a felony in the same proceeding. According to our decision in Ross v. State, 729 N.E.2d 113 (Ind. 2000), the habitual enhancement cannot be used for this purpose. We remand to the trial court to consider whether the habitual may be “repositioned” to one of the other felonies that petitioner was convicted of in the same proceeding. * * *

We hold today that Ross is to be applied retroactively on collateral review to those cases final at the time of its announcement. Jacobs v. State, __ N.E.2d __, __ (Ind. 2005). The only question that remains is whether Jones’ failure to amend his appellate brief, petition for rehearing, or seek transfer to this Court following our decision in Ross, which occurred within thirty days of the Court of Appeals denial of his original direct appeal, constitutes waiver of that issue on collateral review. * * *

Insisting that Jones’ lawyer on direct appeal find some heroic way to plead an authority decided after the Court of Appeals had decided his case asks too much. We decline to find waiver. That is the extent of the good news for Jones.

The bad news for Jones is that the State is not precluded from seeking to re-sentence him under the habitual offender statute, inasmuch as the trial court was entering sentences on more than one felony.

In Shelley Johnson v. State of Indiana CJ Shepard writes:
Shelley Johnson appeals the denial of his petition for post-conviction relief. We address only a single issue, whether Johnson was entitled to the retroactive benefit of our decision in Ross v. State, 729 N.E.2d 113 (Ind. 2000). As we hold today in Jacobs v. State, __ N.E.2d __ (Ind. 2005), as a change in substantive law, Ross is to be applied retroactively on collateral review. We thus reverse the post-conviction court. * * *

This Case Is Like Jacobs. As we hold in Jacobs v. State, __ N.E.2d __, __ (Ind. 2005), because our decision in Ross affects the substantive law controlling application of the general habitual offender statute, it applies retroactively on collateral review to those cases final at the time Ross was announced. Thus, the eight-year enhancement added to Johnson’s sentence under the general habitual offender statute is vacated.

Posted by Marcia Oddi on Friday, October 14, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on conditions at Indiana juvenile correctional facilities [Updated]

The Indianapolis Star today has an editorial stating its position that "State officials should have done a better job of disclosing wretched conditions inside juvenile prisons." It concludes:

Before the federal reports were issued, Donahue moved to separate older teens from the younger juvenile population, along with adding cameras to prisons and eliminating blind spots where assaults can occur. Those are important improvements.

Yet, the Daniels administration's was outrageously slow in releasing to the public the three Department of Justice's letters detailing the problems in the juvenile prisons.

Justice Department officials informed the state of their findings in September, allowing the administration ample time to communicate the matter to the public. Yet the letters didn't come to light until The Star's Kevin Corcoran uncovered the reports this week.

The governor's spokeswoman, Jane Jankowski, says she didn't know Justice Department procedures on releasing the information. Department policy, however, leaves to those who receive findings letters to publicly release them. The administration's failure to do so is unacceptable.

A continued lack of disclosure would have made it more difficult to clean up the problems inside Indiana's juvenile prisons. More transparency and forthrightness are essential.

Even more important is halting the abuses going on inside state prisons. The health and safety of young men and women -- who eventually will return to communities around the state -- are at stake.

For background, see this ILB entry from Wednesday, quoting a Louisville Courier Journal AP report headed "U.S. Justice says State violating jailed juvenile's rights," and this comprehensive Star story from Thursday (yesterday) by Richard D. Walton.

[Updated 10/15/05]
The Fort Wayne Journal Gazette has an editorial today titled "Shocking Treatment." The editorial points out:
The report concerned state juvenile prisons, not county juvenile centers such as the one in Allen County.

While correction commissioner J. David Donahue can’t be blamed for what happened before his arrival, his actions in improving the state’s juvenile facilities should be closely monitored by Gov. Mitch Daniels, the state’s legislators and the people.

Posted by Marcia Oddi on Friday, October 14, 2005
Posted to Indiana Government

Ind. Gov't. - Marion County prosecutor "OKs hiring policy on gays"

"Brizzi OKs hiring policy on gays: Following governor's lead, prosecutor formalizes practice of not discriminating" is the headline to this lengthy front-page story in today's Indianapolis Star, by Brendan O'Shaughnessy. Some quotes:

Marion County Prosecutor Carl Brizzi has approved a formal employment policy within his office prohibiting discrimination based on sexual orientation -- the same move that plunged Gov. Mitch Daniels into hot water with social conservatives.

Brizzi said Thursday his office has followed the anti-discrimination practice for as long as he could remember but finally put it into writing soon after the governor adopted a similar policy for state employees earlier this year.

After the City-County Council defeated a countywide measure banning such discrimination in April, Brizzi said it seemed like the right time to amend his policy to reflect the practice.

"My personal philosophy is that we don't discriminate," said Brizzi, a rising star in the GOP. "We put it in writing because it became an issue. Literally, nothing has changed."

Advocates for a countywide anti-discrimination ban are pointing to Brizzi's and Daniels' policies as they lobby for another vote by the council. Some movement among a few members has given the issue new life.

For background on the unsuccessful Marion County effort, see these ILB entries: 4/26/05 ("Indy Council rejects plan to protect rights of gays") and 9/19/05 ("Advocates seek to revive proposed gay-bias ban").

Today's Star includes the text of the Brizzi policy:

"It is hereby reaffirmed that it is the policy of the Marion County prosecutor to offer equal employment opportunities to persons regardless of race, religion, color, gender, sexual orientation, national origin, ancestry, age, disability or disabled veteran or Vietnam-era veteran status except when age, sex or physical requirement is a bona fide occupational qualification or as provided by law. All persons will be treated equally with respect to hiring, upgrading, promotion and transfer."
Here is the text of the thus-far unsuccessful Indianapolis-Marion County Proposal 68.

Posted by Marcia Oddi on Friday, October 14, 2005
Posted to Indiana Government | Indiana Law

Enviroment - Stories today on seed preservation, hunting, and CAFOs [Updated]

"Preserving Indiana — Seeding plan helps prairie become self-sustaining" is the headline to a fascinating, long, and unsigned piece in today's Gary Post-Tribune. Some quotes (remember, the P-T does not archive):

From U.S. 41, Kankakee Sands Nature Preserve looks just like the miles and miles of farm fields that surround it.

But to truly appreciate Kankakee Sands, a vast expanse of 7,200 acres teeming with hundreds of native plants and animals, one has to understand its history.

Environmentalists are helping to restore the preserve, an area that long ago lay at the bottom of Indiana’s largest inland body of water. * * *

The land that was later named the Kankakee Sands was bought by The Nature Conservancy in 1996 in order to connect two existing nature preserves, the Conrad Savanna and Beaver Lake Nature Preserve.

The move was part of an ongoing effort to restore, as much as possible, Indiana’s prairie, which, according to the Nature Conservancy, has been reduced to less than one-half of 1 percent.

"Couple challenge state hunter harassment law: Beverly Shores residents appeal their summer convictions" is the headline to this story in today's Munster (NW Indiana) Times. Some quotes:
PORTAGE | Beverly Shores residents Frederick and Rosanne Shuger are posing what is said to be the first legal challenge to the state's hunter harassment law.

The Shugers filed notice of their intention to appeal their hunter harassment convictions from this past summer.

A jury found the Shugers guilty in July of two counts each of hunter harassment for interfering with a town-sanctioned deer kill in 2001. Frederick Shuger was also found guilty of a third and more serious offense of intimidation. * * *

The Shugers are represented by local attorney John Lyons and Chicago attorney James Morsch. Morsch said he intends to challenge both the constitutionality of the state law and its application in this case. The Shugers could not be reached Thursday for comment.

The Indiana Court of Appeals granted a request late last month by the Shugers to combine their cases for reason of appeal.

When the Shugers were sentenced in July, their attorney, Garry Weiss, said an appeal would the first to the state's hunter harassment law. The convictions had a chilling effect on those who are opposed to the types of deer culls that take place in Beverly Shores, he said.

Porter County Deputy Prosecutor Andrew Bennett said at the time that the hunter harassment law, which prohibits interfering with the legal killing of a game animal, does not hamper anyone's rights to free speech. The Shugers had plenty of opportunity to voice their opinion before the hunt, he said. "They should have stayed within the bounds of the law," Bennett said.

The Shugers were accused of harassing hunters by driving through the town honking their horn and allowing their dog to bark. Frederick was accused further of confronting hunter Jeff Valovich.

Frederick Shuger said neither he nor his wife set out to harass or intimidate hunters. He said he was overwhelmed with horror and shock when he unexpectedly came across a hunter dragging a dead deer near the roadway in his small lakefront community. Rosanne Shuger said at the time of sentencing that said she never intended to harass hunters and was only concerned about the safety of the community.

"Commissioners approve altered confined feeding operation bill: Ordinance now goes to plan commission for its blessing" is the headline to this story in the Richmond Palladium-Item. Some quotes:
Confined feeding operations are one step closer to having their own special exception zoning ordinance after Wednesday's Wayne County Board of Commissioners meeting. * * *

Some of the changes to the ordinance include:

[1] Minor changes to the definitions of CFO, manure and soil incorporation, manure injection, manure application, sensitive area and surface application.

[2] A 660-feet minimum setback distance from any surface water is required for manure application by surface application or incorporation (mixing soil and manure). A 300-feet minimum setback distance is required from any surface water for manure application by injection. These setback distances may be reduced with the installation of an approved and accepted vegetative management system or filter strip.

[3] Any greater setbacks determined to be necessary by Indiana Department of Environmental Management to protect human health or the environment will be followed.

An Oct. 7th ILB entry also deals with proposed Wayne County ordinance.

[More] More on hunting. Mutthew Tully's column in today's Indianapolis Star is headlined "At Geist, it's hunters versus homeowners." Some quotes:

The City-County Building was empty Tuesday night, except for the 40 or so people who sat on wooden chairs in a small second-floor room and talked about ducks and geese and guns. * * *

The issue before the council's Rules Committee was hunting on Geist Reservoir, an area known for big-money homes and boating but also a traditional spot for hunters of ducks and geese. The problem is that living, boating and hunting just can't continue to go on in the same small area. Something has to change, frustrated residents told the council. "I've sat in my house and heard shotgun pellets rain down the side," said Andrew Fleming, who moved to Geist 16 years ago.

There was a day, all agreed, when Geist was a sparsely populated and appropriate place to hunt. That day is gone. Now, with homes on the waterfront and the reservoir filled with boaters, hunting just doesn't make sense -- even if residents consider the pretty geese a nuisance. Many times, residents said, shotgun-wielding hunters and recreational boaters are within talking distance. Other times, gun blasts wake residents before sunrise, and pellets find their way onto people's lawns. * * *

Briefly, the hearing grew personal and, intentionally or not, reeked of class warfare. The Geist residents -- including doctors and business owners -- pointed out that the hunters were not even Marion County residents. "You're not from here," one resident told the hunters. A hunter complained that "people with money can get anything they want."

But this isn't about money. No one should have to live with hunters shooting a few hundred yards away -- and sometimes much closer. Something tragic eventually will happen.

A sign of how easy a call this is came from Republican House Speaker Brian Bosma, Indianapolis, who represents Geist. Politicians don't like to oppose hunting, and Bosma sent the council a letter calling hunting a "cherished right." Nonetheless, he added: "The development of the lake has progressed to a point where safe hunting is no longer feasible."

Embarrassingly, too few council members showed up, and a vote on the ordinance was postponed until later this month, when it is expected to pass.

Posted by Marcia Oddi on Friday, October 14, 2005
Posted to Environment

Not law but interesting - "Did blogging doom prof's shot at tenure?"

"Did blogging doom prof's shot at tenure?" is the headline to a column by Steve Johnson in today's Chicago Tribune. It begins:

There will likely be no way of ever knowing whether Daniel Drezner was being prophetic or irrelevant when he began his blog by saying, "I shouldn't be doing this. I'll be going up for tenure soon."

But it is true that three years later Drezner has been denied, for all practical purposes, the lifetime posting that is academic tenure at an American university.

The 37-year-old University of Chicago assistant professor of political science said he's not sure whether to blame last week's decision on his international relations Web log, serious minded, widely accessible and popular enough to have earned plaudits from New York gossip site Gawker.com and well-known blogger Andrew Sullivan.

"Who the hell knows," he wrote at DanielDrezner.com, in a rare personal item linking the Red Sox playoff elimination and his tenure denial after more than six years at Chicago in one "pretty bad day."

His department chairman, Dali Yang, pointed out that Chicago intellectuals Gary Becker and Richard Posner (together) and Steven Levitt have blogs. (All, however, were tenured professors first, bloggers afterward. Moreover, Becker has a Nobel Prize, Posner a seat on the 7th U.S. Court of Appeals, and Levitt both an endowed chair and the best seller "Freakonomics.")

"Blogging per se is not considered either good or bad at the University of Chicago," said Yang, adding that, in Drezner's case, "We did not consider the blog. I can say that."

The blog is available here.

Posted by Marcia Oddi on Friday, October 14, 2005
Posted to General News

Ind. Law - Zoning issues in Clarke County project

A story in today's Louisville Courier Journal by Alex Davis includes an interesting discussion of "greenspace" and density. Some quotes:

At a meeting Wednesday, they voted 5-2 in favor of a zoning change that allows developer Bob Lynn to build 145 lots for single-family homes off Ind. 62.

The final decision on the project is up to the county commissioners.

David Ross Stevens, one of the Plan Commission members who voted against the project, said Laurel Springs illustrates the county's dire need for more detailed growth guidelines.

Lynn already had approval for a far denser development at the site, with 96 duplexes and less landscaping. He used that as a way to leverage support for Laurel Springs, Stevens said.

Plan Commission member John Uhl voted for the change but said he wasn't pleased with the outcome. The subdivision's zoning designation, called a planned unit development, typically offers higher density in exchange for more green space.

But Laurel Springs counts portions of front yards as green space, and even Lynn acknowledged that the county's regulations don't offer "concise" definitions for guidance.

Uhl said that he thought Laurel Springs was too dense, but that he voted in favor of it because the duplexes would have been even worse. * * *

The Laurel Springs site became the focus of a lawsuit after it was annexed in early 2003 by the city of Charlestown. Lynn eventually won the legal battle, and large portions of the annexation were reversed and put back under county control.

Lynn has said that the density of Laurel Springs -- nearly five homes per acre in a mostly rural setting -- was necessary to recoup his legal costs.

He said neighborhood opposition to his plans amounts to a "not-in-my-backyard" attitude.

"Where they come off with this elitist attitude is beyond me," he said of neighbors whose homes will be near Laurel Springs. "They need to accept reality."

Posted by Marcia Oddi on Friday, October 14, 2005
Posted to Environment | Indiana Law

Ind. Gov't. - Fort Wayne Journal Gazette open records editorial

The Fort Wayne Journal Gazette publishes an editorial today titled "Secret Government" that references the Indianapolis Star piece (quoted in this 10/11/05 ILB entry) from earlier this week. Today's editorial concludes:

[L]ocal officials denying citizens access to government information they are plainly entitled to has long been a problem. And the officials have little incentive – other than a personal sense of public duty and the public’s right to its own information – to obey the law. It is time for the General Assembly to allow judges to fine government officials who blatantly break state law and deny Hoosiers their right to public information.

Posted by Marcia Oddi on Friday, October 14, 2005
Posted to Indiana Government

Thursday, October 13, 2005

Environment - Interesting Wall Street Journal poll today

The free version of the Wall Street Journal today reports on a Harris Poll with the headline: "Nearly Half of Americans Cite: 'Too Little' Environment Regulation." Some quotes:

Nearly three-quarters of U.S. adults agree that protecting the environment is important and standards cannot be too high, according to a Harris Interactive poll.

At the same time, nearly half of Americans surveyed say there is too little government regulation and involvement in the area of environmental protection, compared with about 19% who feel there is too much regulation and 32% who say it's just right.

The telephone poll of 1,217 adults indicates concern about too little environmental protection has risen slightly from 39% in 2000, when this poll was last conducted. But the percentage is far below the 63% who said there was too little regulation back in 1991.

Americans view large corporations as one of the biggest culprits in environmental problems: 71% said they are doing less than their share to help reduce environmental problems. But 63% say the general public isn't doing its share.

Only 12% of U.S. adults describe themselves as active environmentalists. While more than half of U.S. adults say they are sympathetic to environmental concerns, nearly a quarter say they are neutral and 4% say they are unsympathetic.

Water pollution is the top concern among poll respondents, followed by air pollution. Other priorities included global warming, ozone depletion, and depletion of forest lands.

The story includes the full results of the poll.

Posted by Marcia Oddi on Thursday, October 13, 2005
Posted to Environment

Law - Federal Jurisdiction over Wetlands

The Diane Rehm show this morning on NPR features:

Federal Jurisdiction over Wetlands

The Supreme Court has agreed to hear two cases challenging federal jurisdiction over hundred of millions of acres of wetlands. We'll talk about the cases and their implications for property rights and environmental policy. Guests:

M. Reed Hopper, attorney, Pacific Legal Foundation

David Savage, reporter, "Los Angeles Times"

Tim Searchinger, attorney, Environmental Defense

The show airs in Indy at 11:00 AM. Or you may access it via the above link and later via the show's archives.

Posted by Marcia Oddi on Thursday, October 13, 2005
Posted to Environment | General Law Related

Bankruptcy - "Credit Counselors' Tax Status In Jeopardy"

The headline to this story in the Washington Post today is "Credit Counselors' Tax Status In Jeopardy." The question is, does this put in jeopardy many bankruptcies under the new law that takes effect this month? It begins:

The Internal Revenue Service said yesterday it probably will revoke the tax-exempt status of about 20 credit-counseling firms, accounting for half the industry's revenues.

The disclosure came just five days before a new law takes effect that will require financially strapped consumers to go through credit counseling before filing for bankruptcy. It immediately raised concerns over whether there will be enough bankruptcy court-approved counseling firms to provide debtors with the requisite advisory services.

Credit counseling "is the centerpiece of the new bankruptcy law; it's your ticket to get into bankruptcy. Without it, you're not eligible to file," said Samuel J. Gerdano, executive director of the American Bankruptcy Institute, a nonprofit education and research group made up of attorneys, bankers and bankruptcy professionals.

Posted by Marcia Oddi on Thursday, October 13, 2005
Posted to General Law Related

Ind. Decisions - Court of Appeals rulingS of interest today

Among the eight CA opinions posted today is Indianapolis-Marion County Public Library v. Shook, LLC, about which Judge Baker writes in the introduction to the 16-page:

This interlocutory appeal stems from the saga regarding the renovation of the Indianapolis-Marion County Public Library (the Library). In this particular chapter, the appellant-defendant Library appeals the trial court’s order denying its motion to dismiss the breach of contract action that was brought by the appellee-plaintiff Shook, LLC (Shook), a general contractor that the Library retained to build a garage for its facility. Specifically, the Library maintains that its motion should have been granted because Shook prematurely filed its breach of contract action against it in the trial court. In the alternative, the Library asserts that the trial court abused its discretion when it did not transfer this action to a county of preferred venue. Finding that the trial court properly denied the Library’s motion to dismiss the action, and concluding that there was no abuse of discretion in refusing to transfer the case to another venue, we affirm.
Harlan Bakeries, Inc. v. Kelly Lee Muncy., a 34-page opinion by Judge Crone, "involves disputes regarding boundaries and surface water drainage."
Harlan Bakeries, Inc. (“Harlan”) appeals a $239,082.12 judgment in favor of four siblings, Kelly Lee Muncy, Kendra Marie Vondersaar, Karen Kay Muncy, and Kim Sue Muncy (collectively, “Muncy”; individually, by first name). We affirm in part, reverse in part, and remand for further proceedings.
Steven L. Gillette v. Karin D. Gillette, a 15-page Judge Baker opinion, concerns a prenuptial agreement.

Posted by Marcia Oddi on Thursday, October 13, 2005
Posted to Ind. App.Ct. Decisions

Law - Kentucky Court hears separation of powers question

"Limestone mine appeal covers new ground for state's justices" is the headline to a story today in the Cincinnati Enquirer. When a zoning board member votes on a rezoning issue, is he/she acting in a "legislative" or "judicial" capacity. If legislative, then the member can engage in discussions with constituents, etc. If judicial, then the member can only consider the facts on the record - no ex parte contacts.

This issue has come up with the Indiana environmental boards, re rulemaking -- can the board member have informal communications with opponents and/or proponents of a proposal. Most believe the Indiana board members engaged in rulemaking are acting in a legislative capacity. Back when the environmental boards also were charged with deciding appeals of enforcement actions, they were acting in a quasi-juducial capacity in making such decisions.

Some quotes from today's story:

FRANKFORT - When an elected official votes to rezone a piece of land, is the official a judge or a legislator - and if there's evidence to back up that vote, does it matter?

That's the question the state Supreme Court and attorneys for Boone County and a mining company wrestled with Wednesday as the court heard arguments in the case of a proposed limestone mine.

The answer could not only decide whether Hilltop Basic Resources gets to build a mine on 534 acres near Petersburg, but also what officials can say to residents about a pending zone change.

Unless the court agrees that Boone County acted properly when it denied a change in zoning for the mine five years ago, the court will be putting "black robes on legislators," Covington attorney Jeff Mando, who is representing the county, told the seven justices.

In 2003, the state Appeals Court overturned Fiscal Court's decision, saying two commissioners had made up their minds before the vote and therefore violated the company's due-process rights.

The Appeals Court said commissioners Robert Hay and Cathy Flaig made comments to residents that left the "unavoidable perception" that they were biased and therefore not an "impartial tribunal."

That decision was correct, said Hilltop's lawyer, Paul Whitty of Louisville. "Kentucky has recognized that zoning issues are not legislative matters," he said. "They are quasi-judicial matters."

Here is an Oklahoma Supreme Court ruling. And here is a Maine local government memo on "Duties and Powers: Legislative and Quasi Judicial Functions."

Closer to home, here is a publication of the Indiana Planning Association, Part 6, Ethics, that on p. 3 cites an Indiana statute, IC 36-7-4-920(g).

Posted by Marcia Oddi on Thursday, October 13, 2005
Posted to General Law Related

Environment - Civil and criminal charges brought against alleged Delaware County violators

Two stories today in the Muncie StarPress, both by Seth Slabaugh:

"Open dump still not cleaned up" is the headline to this story, which reports:

The alleged owner of an open dump still has not resolved a notice of violation issued by the Indiana Department of Environmental Management in February of 2004. * * *

On Wednesday, The Star Press observed dozens of strewn-about tires full of water; several tire piles; a couple of junk vehicles including an overturned tanker truck; a couch and other furniture; numerous piles of shingles and junk; several rusty barrels and plastic containers; a five-foot-tall gas cylinder; a toilet; several rolls of carpet, and other debris at the site.

The property is enclosed by a metal fence topped with barbed wire, but the front gates have been removed.

The 4.6-acre property was offered for sale at the county's annual delinquent property tax sale on Tuesday. No one bid on the property, which the county says is owned by Arthur Hicks Jr., a former Teamsters union business agent. It required a bid of at least $8,570, the amount required to pay back taxes and penalties, to purchase the site. * * *

Barry Sneed, a spokesman for IDEM, said: "This is a difficult case, and we are still working to resolve it as expeditiously as the rules, laws, and negotiations allow us. It is our desire to get the property cleaned up and the case closed."

Sneed said the current condition of the property as described by The Star Press "will be classified as a new complaint which I have already sent to the appropriate person."

Here is the 2/10/04 IDEM NOV issued against Arthur Hicks, Jr.

"Pork producer accused of environmental crimes" is the headline to this story. Some quotes:

MUNCIE - A Delaware County pork producer who reportedly once called IDEM inspectors "dumb" has been charged with three class D felony counts of violating environmental management laws.

The charges were filed this week against Jacobus (John) Tielen, 37, rural Eaton, who is permitted to confine up to 5,885 nursery pigs, finishing pigs, and sows.

He is accused of repeatedly failing to lower the level of manure in a storage lagoon.

"Most individuals who own and operate concentrated animal feeding operations (CAFOs) and confined feeding operations (CFOs) in Indiana work effectively to comply with environmental law," said Thomas Easterly, commissioner of the Indiana Department of Environmental Management.

"One bad actor should not be allowed to sully the reputations of these good environmental stewards. It is unfortunate that Mr. Tielen now faces possible punishment through the criminal courts for his repeated refusal to cooperate with IDEM."

Eric Hoffman, a deputy prosecutor in Delaware County, filed the charges based on an IDEM investigation of Tielen, who did not return a phone call from The Star Press inviting him to comment.

All three counts accuse Tielen of knowingly or intentionally failing to maintain the required minimum freeboard of 2 feet in a lagoon holding 12 million gallons of hog manure. Freeboard is the distance between the manure level in the lagoon and the top of the lagoon.

IDEM's Amy Hartsock said Tielen was facing criminal sanctions because he failed to follow through on two signed agreements with IDEM. * * *

In June, IDEM obtained a temporary restraining order prohibiting Tielen, a native of The Netherlands, from further swine breeding at his farm, to address the farm's "brimming manure lagoon." The sow breeding ban was later lifted.

In 1999, Tielen paid IDEM a penalty of $6,806 for failing to report a manure spill from a lagoon to an open ditch that killed a dozen or so fish in Estey Creek.

In 2003, Tielen paid IDEM a penalty of $15,000 for discharging hog manure into waters of the state, not maintaining a minimum of 2 feet of freeboard in manure lagoons, and other violations.

Here are two IDEM AOs entered into by John Tielen dba Muncie Sow Unit, LLC on 4/21/03 and 9/22/99. Here is an NOV signed 8/20/04.

Posted by Marcia Oddi on Thursday, October 13, 2005
Posted to Environment

Ind. Courts - Location of new Vigo County court causes concern

The Terre Haute TribStar reports:

A Vigo County judge and the sheriff are voicing concern over the proposed use of the second floor of the county's new regional work-release center as a temporary site for a new sixth court.

Judge Michael Eldred expressed concern Tuesday to the Vigo County Board of Commissioners about security while Sheriff Jon Marvel said transporting inmates to the center could create problems.

Eldred had concerns over the potential use of a single hallway to bring both defendants and victims sides into the temporary courtroom. He attended the meeting with David Bolk, chief of county judges.

However, John Hanley, operations manager for Construction Technology Associates, said a north-side elevator and a hallway on the east side of the work release center can be used to bring inmates to the court, separated from a public hallway on the west side for family and victims.

Vigo County judges, Eldred said, are still working on a judicial plan to submit to the state supreme court on duties of each county court. Eldred said the proposed plan is to have 50 percent of all criminal cases moved into the new sixth court next year. That court also will handle divorce cases. That, Eldred said, means that court will need security from the Sheriff's Department. * * *

Gov. Mitch Daniels is expected to name a judge, from among four candidates, to the new sixth court by mid-November. * * *

County commissioners more than six months ago began discussing the concept of converting about 3,000 square feet of unused space on the second floor of the Regional Community Corrections Work Release Center, under construction at First and Ohio, as a temporary court location starting Jan. 1.

The new sixth court would be moved into the courthouse after the completion of a more than $8 million interior courthouse renovation project, slated to be finished in about 1 1/2 years.

Posted by Marcia Oddi on Thursday, October 13, 2005
Posted to Indiana Courts

Ind. Law - Allen County rural nuisance codes revised

"Rural nuisance codes revised: Proposal adds exemptions, reduces daily fine to $500" is the headline to this story today in the Fort Wayne Journal Gazette, by Benjamin Lanka. Some quotes:

Allen County is bringing back a plan to regulate how landowners in unincorporated areas maintain properties.

Nine months after the last try, revised property maintenance codes will be presented for public input beginning this month. The commissioners declined to vote on the proposed codes in March, citing concerns that the law wouldn’t exempt current properties or farmland from tighter restrictions. The codes’ purpose is similar to those enforced by Fort Wayne’s Neighborhood Code Enforcement.

The codes would not apply in Fort Wayne, New Haven, Leo-Cedarville, Grabill, Monroeville, Huntertown or other towns in the county.

Dave Fuller, county building commissioner, said the proposed maintenance code has been reviewed by county officials and is ready for public comment. Fuller said the newer version would exempt current homeowners from many of the restrictions

For example, the code requires that windows have screens and kitchens have electrical ground-fault interrupts, but Fuller said it would be unfair to require homeowners to update their homes if they don’t want to. Landlords, however, will be forced to follow the rules on rental properties.

The law would also give the county the authority to keep grass shorter than 10 inches and yards free from debris that could house rodents.

“We’re looking at protecting neighbors’ property values,” Fuller said. He said his office gets a couple of complaints a week regarding nuisance issues, but he has no power to do anything without a law on the books.

Chris Ivancic, president of the Laurel Ridge Neighborhood Association, said he supports the law because it gives the county the ability to eliminate nuisances.

“We have people storing cars in their back yards. It’s ridiculous,” he said. * * * John McGauley, spokesman for the county commissioners, said the code would allow the county to adjust to its increasing urban areas. Farm property is exempted from much of the code.

Here is the Proposed Allen County Property Maintenance Code.

Posted by Marcia Oddi on Thursday, October 13, 2005
Posted to Indiana Law

Wednesday, October 12, 2005

Environment - Focus on confined feeding continues

I looked back to the first month of this incarnation of The Indiana Law Blog today, and found that the fourth item I posted, on March 17, 2003, concerned confined feeding operations. The first item was "Welcome," the third was "What is a 'blog'" (back when the word was new), and the fourth was "Environment - Confined feeding." Many, many thousands of entries later, stories about confined feeding operations and CAFOs (Concentrated Animal Feeding Operations) continue to be an Indiana news focus.

Today the Seymour Tribune reports on the approval of a hog farm in Vallonia by the "Jackson County Board of Zoning Appeals ... Tuesday night, that cleared the way for an 8,000-head confined hog operation in Redding Township." There is much that is interesting (to me at least) in this story. Some quotes:

Although Lykins’ proposal received a 3-1 vote to gain the county’s approval, building of the facilities could be halted if an appeal and stay by Jennings County Water Inc. to the Indiana Department of Environmental Management is granted, said Lykins’ attorney, Joe Miller.

IDEM requirements have been met or exceeded and the agency has issued approval of the proposed operation, Miller said.

“The risk to her to start building now is that she would have to stop building if the stay is granted, which I don’t think it will be,” Miller said after the meeting.

BZA members Tom Bryant, Jerry Otte and Gene Speaker voted to approve Lykins’ application, while Kenny Turner cast the lone opposing vote. “I really don’t have a problem with putting a business building on zipp soil,” Speaker said.

Zipp soil was defined by a soil scientist speaking in favor of the confined feeding operation as soil with poor to very poor drainage, high clay content and slow permeation found in low terraces or floodplains. * * *

No open pits will be part of the operation, Miller said. Manure from the operation’s concrete underground storage tanks will be removed on an annual basis and knifed into nearly 500 acres of land, including the land surrounding the hog buildings, he said.

Opponents contend the concrete tanks will crack and manure will seep through the soil to the drinking water supply. “There are two things a contractor will guarantee: concrete will get hard and it will crack,” Reddington resident, farmer and builder Charlie Fox told the BZA.

“The only place to drain that is the Lucky Tally ditch or the road ditch, which lead to the aquifer that thousands of people drink from,” he said.

According to a letter from the Jackson County Drainage Board read during the meeting, however, runoff from the operation would not adversely affect the Lucky Tally ditch as FAIR members contend.

The pits’ 6-inch walls and 8-inch floors would not pose a leakage problem, Miller contended. “This is basically organic fertilizer. That’s what it is,” Miller said of the manure, adding that its application to soil is regulated much more heavily than commercial fertilizer applications.

The amount of manure worked into farmland is determined by soil tests sent through an approved lab, such as Purdue University. Amounts of knifed manure could vary from year to year and from field to field, he said.

A licensed engineer employed by Jennings County Water Inc. said the operation’s effect is a “very, very technical and complex” issue.

Robert Curry, who specializes in water supply and wastewater engineering, said the hogs’ waste will be equal to that of 100,000 people. “I think you need to get your hands around the magnitude of the problem because it is a very serious environmental issue,” Curry told the BZA during his presentation. He also called the site plan “totally incomplete.”

“You don’t have any document that shows where the water actually would go,” he said, adding that a residential septic permit could not be granted with the information presented by Lykins’ plan.

Miller said dead hogs will be composted in an enclosed facility, using sawdust to create a heat source and control moisture that affects the decomposition rate. Miller also said the compost facility will not smell, a comment that drew collective laughter from the crowd.

Dead animals may be picked up by vendors that process the carcasses to produce fats and shoe leather, or incinerated. Incineration is considered the most costly method of disposal. * * *

Jennings County Water Inc. president Dave Beasley also spoke in opposition to the operation, citing the potential for water well contamination.

“Jennings County Water is not opposed to agriculture; however, Jennings County Water does have an objection to the proposed location,” he said. Water wells lie within one and a fourth miles “as the crow flies” from the Lykins property, Beasley said.

“There is no room for error. Any amount of contamination is too much for public welfare,” he said. The hog operation would have “serious financial ramifications” for the company, he added.

Posted by Marcia Oddi on Wednesday, October 12, 2005
Posted to Environment | Indiana economic development

Ind. Courts - Bailiff whose salary was the subject of a 2003 judicial mandate has resigned

"Councilors see charges as victory" is the headline to a story today by Joe Gerrety in the Lafayette Counral&Courier. Some quotes:

Tippecanoe County Council members who were the first to blink in a standoff with a judge over his overtime budget two years ago said they feel vindicated now that a former court employee has been criminally charged.

Kelly M. Davis, 30, who resigned as bailiff of Tippecanoe Superior Court 1 in January 2004, was charged Friday with nine felony counts, including corrupt business influence, theft and ghost employment. * * *

[C]ounty councilman Jeff Kemper said Judge Don Johnson bears some responsibility for the situation.

In a letter to the judge in December 2003, council members questioned whether [Judge Don Johnson] was reviewing payroll claims submitted by Davis for herself and other members of Johnson's staff.

"Maybe he trusted her too much," Kemper said. "Trusted that she wouldn't take advantage of her position, and apparently she did."

Johnson could not be reached Tuesday for comment. The judge issued a mandate in December 2003, ordering county council members to pay his claims for overtime and part-time hours worked by his staff or come to his court to explain themselves.

After the bailiff's reisgnation in January of 2004, Judge Johnson, according to the story, "asked then-part-time bailiff Oscar Gates to investigate her overtime claims." More:
Gates turned information over to Lt. Steve Kohne of the Tippecanoe County Sheriff's Department, who continued the investigation. * * *

Kemper said he hopes, if Davis is convicted of the charges, she'll be ordered to repay any money she was paid but didn't earn.

After Kohne completed his investigation, Tippecanoe County prosecutor Jerry Bean sought the appointment of a special prosecutor, citing a potential conflict of interest.

Todd Meyer, the Boone County prosecutor, was appointed special prosecutor in March 2005. Meyer had the Indiana State Police review the case before filing the charges Friday.

Posted by Marcia Oddi on Wednesday, October 12, 2005
Posted to Indiana Courts

Law - California lawsuit may channel Senator Miller's bill

"A controversial proposed bill to prohibit gays, lesbians and single people from using medical procedures to become pregnant has been dropped by its legislative sponsor." That is a quote from an Indianapolis Star story from 10/8/05, quoted here in the ILB. Other entries on Senator Millers bill may be found at: 10/4/05; 10/5/05; and 10/7/05.

I reread these entries this morning after reading this story in the San Diego Union-Tribune (thanks to How Appealing for the pointer). A state prohibition is not involved in the California case. But it sure raises a lot of interesting issues. Some quotes from the story, titled "Competing rights are weighed in bias suit."

A state appeals court in San Diego yesterday weighed competing claims of religious freedom and anti-discrimination laws during oral arguments in a key case involving a lesbian and two North County fertility doctors who refused to artificially inseminate her. * * *

The justices' questions focused on several areas, such as the interplay between the state's law banning discrimination in public places and other laws that allow medical professionals to refuse to perform certain procedures based on their religious beliefs.

The case involves a lawsuit filed in 2001 by Guadalupe Benitez, an Oceanside woman who sued two doctors and a medical clinic in Vista over her fertility treatments. She contended that the doctors * * * would not perform a certain kind of artificial insemination because their religious beliefs prohibited them from inseminating a lesbian couple. Lawyers for the doctors say Brody and Fenton told Benitez and her partner that other physicians at the clinic would perform the procedure.

The justices are weighing whether such an "accommodation" is a permissible solution to a conflict between a physician's religious convictions and the ban on discrimination based on sexual orientation. Attorneys for Benitez say it is not. * * *

The law allows doctors in some instances to refuse treatment based on religious grounds, such as performing abortions or doing blood transfusions. Jennifer Pizer, a lawyer for Benitez, said that exemption does not apply in this case because the doctors singled out Benitez because of her sexual orientation.

And this from the AP coverage (also spotted by Howard Bashman):
The case appears to be the first in the country in which a gay or lesbian patient was allowed to sue doctors over charges that treatment was denied based on sexual orientation, said Benitez's attorney, Jennifer Pizer of the Lambda Legal Defense and Education Fund.

Posted by Marcia Oddi on Wednesday, October 12, 2005
Posted to General Law Related

Ind. Decisions - Several interesting Court of Appeals rulings today

After a lull in decisions, the Court of Appeals has posted four new ones today. Among them is a 15-page statutory construction decision, Kahlo Jeep Chrysler Dodge of Knightstown, Inc., et al v. Daimler Chrysler Motors Company, LLC. The issue: "whether the Dealers’ cause of action against DaimlerChrysler alleging a violation of the Indiana Deceptive Franchise Practice Act (“the Act”) was barred by the Act’s statute of limitations." Judges Barnes concludes:

The General Assembly clearly could have worded the Act very differently, to provide that unilateral and substantial modification of a franchise agreement by a franchisor is an independent “unlawful act or practice” under Section 2 of the Act. It did not, instead only choosing to label it an impermissible franchise agreement provision under Section 1 of the Act. We must give effect to the intent of the legislature as evidenced by the plain language it has chosen to use in the Act. That intent clearly appears to be that causes of action for violations of Section 1 of the Act accrue when a contract containing an unlawful provision is executed and franchisees have two years from that date to challenge the provision, while a cause of action for violations of Section 2 of the Act accrues when the franchisor engages in the prohibited conduct. To accept the Dealers’ position here would be to ignore the distinction between Section 1 and Section 2 of the Act that the legislature clearly made.

The Dealers’ action against DaimlerChrysler is barred by the Act’s statute of limitations.

In a family law case today, Greg Shelton v. Alaina Alice Shelton, the father appealed from the trial court's denial of his petition to modifiy custody of his daughter, based on the trial court's definition of family. The Court of Appeals reverses and remands. Judge Robb writes:
Father raises one issue for our review, which we restate as whether the trial court properly defined “family,” as used in section I(C)(3) of the Indiana Parenting Time Guidelines, to include stepparents and grandparents for the purpose of determining when Father must first be offered the opportunity to provide childcare for D.S. * * *

Conclusion. The trial court improperly limited Father’s opportunity for additional parenting time by defining too broadly those members of Mother’s family included under the language adopted from section I(C)(3) of the Indiana Parenting Time Guidelines. We therefore reverse that provision of the trial court’s order, and remand for the trial court to modify its opinion.

Posted by Marcia Oddi on Wednesday, October 12, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - Crawfordsville passes "Big box" ordinances

"Ordinance to regulate 'big box' retailers passed" is the headline to this story today in the Crawfordsville Journal Review. Some quotes:

Crawfordsville’s City Council proceeded with an ordinance that allows local officials to regulate “big box” retailers to certain city plans at its monthly meeting.

The ordinance, passed unanimously on its final reading, amends the zoning code to mandate retail stores of at least 20,000 square feet to be compatible with city plans on location, design and impact on its surroundings. * * *

The council also officially approved an ordinance regulating abandoned retail stores within city limits. It defines an abandoned large building as 20,000 square feet, built before or after the ordinance goes into effect, and unoccupied for four consecutive months following the ordinance going into effect.

A potential increase for crime and vandalism also was cited for this regulation, as well as the common restrictions on reuse of the buildings that are imposed by the owners and the loss of property and income tax revenue.

An ILB entry from 9/6/05 cites an earlier Journal Review story.

Posted by Marcia Oddi on Wednesday, October 12, 2005
Posted to Indiana Law

Ind. Courts - Indiana Commission on Judicial Qualifications criticizes Judge Pfaff's timing [Updated]

The Elkhart Truth reports:

The Indiana Commission on Judicial Qualifications filed the final document Tuesday in the discipline case against former judge Benjamin Pfaff, criticizing the timing of his apology and recent resignation. * * *

In Tuesday's response, the commission called the apology ambiguous and said the resignation isn't enough.

"The Commission argues as a matter of policy that a judge should not be permitted to engage in grievous misconduct, commit perjury when confronted, attack and vilify the witnesses against him, pursue the judicial disciplinary system to its final hour, benefit from a paid suspension in the interim, then attempt to avoid a removal order and its ramifications by offering a resignation," they said in a filing with the Indiana Supreme Court.

The commission still is asking the Supreme Court to enter an order removing Pfaff from the bench, holding him ineligible to ever serve in a judicial office and suspending his law license.

For the numerous earlier entries on this story, type "pfaff" in the search box.

[More] See also this story from today's South Bend Tribune headlined: "Resignation not good enough for Indiana judicial panel: Body asks state Supreme Court to formally remove Elkhart court's Pfaff from office."

Posted by Marcia Oddi on Wednesday, October 12, 2005
Posted to Indiana Courts

Law - "Court to Rule on Federal Regulation of Wetlands"

"Court to Rule on Federal Regulation of Wetlands" is the headline to this story by Charles Lane today in the Washington Post. Some quotes:

The Supreme Court announced yesterday that it will decide how extensively government can regulate the nation's wetlands, a key source of contention among environmentalists and property owners.

Property owners in two cases the court agreed to hear argue that government regulators have interpreted the 1972 Clean Water Act too broadly and exceeded their power to regulate interstate commerce, because the wetlands in dispute are miles from any waters able to support recreation or shipping.

In accepting the cases, the court ruled against the Bush administration, which had said in a brief that "core federal interests" were at stake and urged the court to let stand lower-court rulings that upheld the government's authority. * * *

The government views wetlands as part of complex ecosystems that must be kept clean to preserve the quality of the larger bodies of water they ultimately feed. Property owners, supported by such organizations as the National Association of Home Builders, say this is a sweeping definition that rubs out state and local land-use authority -- and adds to the cost of housing.

The court tried to avoid the constitutional issue in 2001, when it ruled that the federal government could not use the Clean Water Act to protect small, shallow ponds in Illinois just because they are used by migratory birds.

In that case, the court implied that the Clean Water Act required a "significant nexus" between a wetland and an "adjacent" larger body of water.

But, as subsequent rulings by lower courts have shown, that left open a deeper question of whether it is enough for a wetland to be part of the same large hydrological system as a river or lake, or whether the wetland must directly abut the larger body.

Both cases accepted by the court yesterday are from the Cincinnati-based U.S. Court of Appeals for the 6th Circuit, which has advocated a broad view of the Clean Water Act's coverage.

In the first case, Carabell v. U.S. Army Corps of Engineers , No. 04-1384, Michigan property owners were denied permission to build a condominium complex in Macomb County, Mich., outside Detroit. The Corps of Engineers said that, although the property is separated by a berm from a ditch that feeds water into Lake St. Clair, it is nonetheless "adjacent" to the ditch and thus to "waters of the United States."

In the second of the cases, Rapanos v. United States , 04-1034, a Michigan man who wants to develop shopping centers faces steep civil and criminal penalties for filling in wetlands on three sites, despite repeated government prohibitions.

David G. Savage writes about the grants in the LA Times. Some quotes:
The Bush administration is defending the broad power of federal regulators to protect distant wetlands if they have a "hydrological connection" to a navigable body of water. This means that if some water flows at some time from the wetland to a stream, federal agents may prevent a farmer or developer from dredging or filling the wetland.

U.S. Solicitor General Paul D. Clement urged the justices to turn away an appeal filed on behalf of John Rapanos, a Michigan farmer who was hit with a prison sentence and $13 million in fines after he filled in the wetlands on three pieces of land near Saginaw, Mich.

"The federal government possesses long-standing authority to protect the quality of traditional navigable waters by regulating upstream pollutant discharges," Clement said.

But the justices instead voted to hear the case of John Rapanos vs. the United States. His case began in 1988 and has become a cause celebre among property-rights activists. Rapanos is represented by the Pacific Legal Foundation, a defender of property rights. * * *

The Rapanos case will be heard early next year. A second case, to be heard at the same time, concerns a condominium developer who wants to build on wetlands near Detroit. Water cannot flow from the wetlands area because of a manufactured barrier, but a lower court said federal agents had authority over the land nonetheless.

Regardless of the outcome, states like California will retain their own authority to protect wetlands. Even the opponents of federal regulation concede that states have considerable powers to regulate land use and to protect the environment. * * *

A third case from Maine tests the federal government's power to prevent pollution of water that passes through dams or pumping stations. U.S. agents may require permits of those who "discharge" water into a stream, but it is not clear whether water passing through a dam or pumping station amounts to a discharge.

Here is Linda Greenhouse's coverage in the NY Times. Some quotes:
The cases, both from Michigan, challenge regulators' definition of federally protected wetlands under both the Clean Water Act and the Constitution. The question is whether the federal government is properly asserting jurisdiction over wetlands that may be part of a drainage area or tributary system but do not actually abut the "navigable waters" to which the Clean Water Act refers.

If the government's view of its power under the statute is correct, the landowners bringing the appeals argue, then Congress has exceeded its authority and the Clean Water Act, in this application, is unconstitutional.

The answer to the statutory question has been in some dispute in courts around the country, especially after the Supreme Court's ruling in 2001 that the use of isolated ponds by migratory birds was not sufficient to give the federal government jurisdiction over those ponds under the Clean Water Act.

But no federal court has gone so far as to declare the Clean Water Act unconstitutional. * * *

Both the Endangered Species Act and the Clean Water Act have become enmeshed in the debate over private property rights versus government regulation.

John A. Rapanos, the Michigan landowner who brought one of the new appeals, has been a symbol of that debate for more than 10 years. Mr. Rapanos has been the subject of a civil enforcement action and criminal prosecution for acting without a permit to move earth and perform construction work on three multi-acre parcels that the Army Corps of Engineers and the Environmental Protection Agency deemed protected wetlands.

Last year, the Supreme Court denied review in Mr. Rapanos's appeal of his criminal conviction. The new case, Rapanos v. United States, No. 04-1034, is his appeal in his civil case, in which he faces millions of dollars in fines. * * *

The second Clean Water Act case the court accepted is quite similar, but in this case, Carabell v. United States United States Engineers, No. 04-1384, the property owners did seek a permit under the Clean Water Act to build a condominium complex on 19 acres of largely forested wetlands.

They filed suit when the permit was denied, now arguing that the property was not subject to federal jurisdiction. They maintained that an artificial berm that separated their property from a drainage ditch deprived their land of a "hydrological connection" with any navigable waterway. The Federal District Court in Detroit, as well as the Sixth Circuit, found that the property met the federal regulatory definition as "adjacent to tributaries of a traditional navigable water."

The court accepted a third Clean Water Act case on Tuesday that presents a different issue under a separate section of the law. The question in that case, S. D. Warren Co. v. Maine Department of Environmental Protection, No. 04-1527, is whether a dam through which water flows requires certification under the statute even if nothing is added to the water, either from outside or by the dam itself.

The Clean Water Act requires a "water quality certification" before making "any discharge" of a "pollutant" into navigable waters. The owner of five 100-year-old hydroelectric generating dams in Maine, which provide electricity to a paper mill, is arguing that flowing water does not constitute a "discharge."

The Maine Supreme Judicial Court rejected that argument on the ground that "water that has left its natural state and has been subjected to man-made control" could be considered a discharge. In this case, the state's environmental agency was administering the law in cooperation with the Federal Energy Regulatory Commission, which was reviewing a license renewal application from the company that owns the dams.

For more on the combined case of Rapanos, John, et al. v. U.S. / Carabell, June, et al. v. Army Corps of Engineers, et al., access this page from the very useful Northwestern School of Journalism site, On the Docket. It includes the lower court opinions and the brief of the U.S. in opposition to review and more will be added. Here is the same for third case, S.D. Warren Co. v. Maine Bd. of Environmental Protection.

Posted by Marcia Oddi on Wednesday, October 12, 2005
Posted to Environment | General Law Related

Ind. Econ. Dev. - More on proposed Delaware County industrial-agriculture park

Seth Slabaugh has a story today in the Muncie StarPress about the proposed Delaware County industrial-agriculture park. Some quotes:

MUNCIE - Delaware County needs an industrial-agriculture park to gain a competitive advantage over other communities and to partner with Gov. Mitch Daniels's administration.

Terry Murphy, vice president of economic development for the local chamber of commerce, delivered that message Tuesday night at a forum on the proposed 806-acre, Shideler agricultural bio-enterprise park.

The city-county planning commission is scheduled to act on a re-zoning petition for the proposed ag park at its Nov. 3 meeting, after which county commissioners would take final action. * * *

For economic development purposes, it is important for a community to have "ready-to-build sites" like those in an industrial park, Murphy told more than 50 concerned citizens Tuesday night at the Horizon Convention Center.

Delaware County could become the first Indiana community to establish an ag park since the governor unveiled "Possibilities Unbound," a strategic plan to make Indiana a global center for food and agricultural innovation and commercialization. * * *

If the property is re-zoned, the chamber of commerce hopes to attract an ethanol, soy bio-diesel, food processing and pharmaceutical plants.

Posted by Marcia Oddi on Wednesday, October 12, 2005
Posted to Indiana economic development

Ind. Courts - Deeper jury pools

The Fort Wayne Journal Gazette's lead editorial today is titled "Deeper Jury Pools." It begins:

The next step in Indiana’s attempt to broaden county jury pools was taken late last month under a cooperative agreement between the Indiana Supreme Court, the Department of Revenue and the Bureau of Motor Vehicles. Using current taxpayer lists along with rolls for drivers and state ID holders has produced – the state’s Supreme Court says – the most up-to-date address information for jury selection state courts have ever had. * * *

“This is a classic case of different branches of government working together to produce something at little cost that will ultimately make our juries more representative,” Chief Justice Randall T. Shepard said in announcing the list project. “It will also cut down on mailing costs because it will have more accurate addresses than voter mailing lists and reduce the number of returned mailings.”

But how does this new list affect the longstanding belief among minority groups that the racial makeup of jury pools isn’t as diverse as the communities in which they are based? Is it time for the state to keep a demographic tally?

Posted by Marcia Oddi on Wednesday, October 12, 2005
Posted to Indiana Courts

Ind. Gov't. - U.S. Justice says State violating jailed juvenile's rights

An AP story by Ken Kusmer in the Louisville Courier Journal today reports:

INDIANAPOLIS -- The Indiana Department of Correction has violated the civil rights of imprisoned juveniles by not protecting them from physical violence and sexual abuse, by withholding drugs to treat mental illness, and by failing to provide adequate schooling, the U.S. Justice Department alleges. The accusations were communicated in recent letters to Gov. Mitch Daniels. * * *

The state agency's J. David Donahue, who became commissioner in January, said his staff already has corrected many of the problems the Justice Department cited and is working on the others.

The Justice Department notified the state 20 months ago that it was beginning the investigation under a 1997 law called the Civil Rights of Institutionalized Persons Act. It protects the rights of people that state and local governments place in prisons, mental hospitals and other facilities.

Posted by Marcia Oddi on Wednesday, October 12, 2005
Posted to Indiana Government | Indiana Law

Ind. Law - More on " 'Oprah' helps capture Indiana fugitive"

Evansville Courier& Press reporter Maureen Hayden's story last Friday (see ILB entry here) on how Oprah helped catch a Posey County fugitive by doing a "10 most wanted" on her show, has morphed into a front-page Indianapolis Star story today, headlined "Oprah: 'Best money I ever spent' Hoosier suspected of sex crimes caught after she offers reward."

[Even more] Turns out Ms. Hayden has another story today. It concludes:

"And so I want to be very clear,'' Winfrey said. "He has not gone to trial. He fled Indiana because of these accusations. And we want him to go to trial ... And we want him to have a fair and just trial."

When and where that will be done is still to be determined. Local prosecutors say Davis could ask for, and receive, a change of venue because of the extensive pretrial publicity about his case.

Evansville attorney Russ Woodson, who represented Davis in 2002 on a child molesting charge that was later dropped, wondered if Davis would be able to get a trial with a fair and impartial jury.

"First, we need to find out the facts of the case against him,'' said Woodson. "We shouldn't let Oprah convict him."

The publicity around the case is a double-edge sword for prosecutors. Vanderburgh County deputy prosecutor Donita Farr, who prosecutes sex crimes, said Winfrey's high-profile focus on the issue of sexual predators will help educate the public. "We're grateful that he (Davis) was apprehended," said Farr. "It brings to light how terrible these crimes against children are."

It may still be weeks before Davis is back in Southern Indiana. In court last week in Fargo, he said he would fight extradition. He is being held on a $1 million cash-only bond. Late Tuesday, the Vanderburgh County prosecutor's office completed the paperwork to request a "governor's warrant," which could force Davis' return to Indiana. The process involves Indiana Gov. Mitch Daniels asking the North Dakota governor to recognize charges filed against Davis in Indiana.

Posted by Marcia Oddi on Wednesday, October 12, 2005
Posted to Indiana Law

Ind. Decisions - Settlement in high school journalism adviser case

The Indianapolis Star reports today that:

Franklin Central High School's former newspaper adviser said Tuesday he will finish a journalism education program now that he stands to collect nearly $74,000 from a lawsuit settlement. Chad Tuley, 26, hopes to return to the classroom next fall and eventually to oversee another student newspaper -- but not in Franklin Township Schools. * * *

The agreement, which the School Board approved Monday night, ends Tuley's federal lawsuit. It claimed his First Amendment rights were violated in November 2004 when he was removed as adviser over a story in the student newspaper about a student arrested on a murder charge. * * *

Superintendent E.B. Carver has said Tuley lacked a proper journalism teaching license and that his removal from the adviser position was because of his conduct -- not the story. "This was never about a First Amendment right," Carver said this week. "It was a personnel issue." Referring to Tuley, Carver said: "Any time you settle for money, you're never too strong about your First Amendment rights."

Tuley and his attorney, Ed DeLaney, declined to respond specifically to that comment, citing a clause in the agreement barring any statements about the matter.

The settlement agreement also prohibits either side from releasing it publicly unless required by law. The Indianapolis Star obtained a copy Tuesday after sending a public records request to the school district.

Interesting. A sidebar to the story sets out the details of the settlement.

Posted by Marcia Oddi on Wednesday, October 12, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - More on Pulic Access Counselor's office today

The Indianapolis Star today has a companion-editorial to its piece yesterday (see ILB entry here) on the state's public access law. The editorial, titled "Deal from strength on right to know," urges granting enforcement power to the PAC. Some quotes:

Our position: More resources and enforcement authority are needed to maintain the high performance of the access adviser.

The six-year-old state Office of Public Access Counselor is setting records for work volume as awareness spreads of its availability. The two-person agency headed by Karen Davis has more than earned its budget of $157,000 and clearly needs more money and personnel to meet the growing demand for public information.

Another need is enforcement power to bring to bear against state and local government officials who persist in shirking or ignoring their obligation under the open records statute. * * * The counselor issues advisory opinions (a record 219 in the fiscal year ending June 30) but cannot impose fines or otherwise sanction officials who refuse lawful and reasonable requests for information.

It is worth noting that citizens who obtain a favorable opinion from the counselor, then sue for the information and win, are entitled to some reimbursement of their costs.

Still, that's a burden taxpayers who've already taken the initiative to shed light on government proceedings shouldn't have to carry. The legislature should provide the public access counselor a big stick and a bigger budget in acknowledgement of its essential role and its never-ending battles.

Posted by Marcia Oddi on Wednesday, October 12, 2005
Posted to Indiana Government

Tuesday, October 11, 2005

Law - Grandparents' rights granted in Ohio Supreme Court decision

"Grandparents Given Rights by Ohio Court" is the headline to a story today in the NY Times. Some quotes:

Ohio's highest court unanimously ruled yesterday that the grandparents of an 8-year-old girl must be allowed to visit her over the objections of her father, upholding the constitutionality of a state law granting nonparents visitation rights to children.

The decision by the Supreme Court of Ohio comes at a time when parents across the nation have been challenging the constitutionality of such laws. While courts in some states, like Florida and Washington, have struck down those laws, courts in others have upheld them. * * *

Ohio law says that in cases where a parent of an unmarried minor dies, courts may grant grandparents and other relatives of the deceased parent visitation rights if those visits are deemed "in the best interest" of the child.

Mr. Collier argued that Ohio's law was overly broad and infringed on his constitutionally protected rights as a parent. He cited a 2000 United States Supreme Court ruling, Troxel v. Granville, in which the court found that a Washington State law went too far in permitting a judge to order visiting rights for grandparents over a mother's objections.

Yesterday, the Ohio Supreme Court rejected Mr. Collier's argument, saying that Ohio's law was more narrowly drawn than Washington's and conformed with the Troxel ruling. The Washington law allowed any person to petition for visitation rights, while Ohio's law specifies that only parents and other relatives of a deceased parent can petition for visitation. * * *

Ronald W. Nelson, a Kansas lawyer who specializes in family law, said he considered it unlikely that the United States Supreme Court would hear another case on grandparents' visitation rights, saying that federal courts traditionally have allowed the states to decide such rules.

"They got involved in Troxel because they wanted to reassert a balance that gives the parents the primary right to raise their children," said Mr. Nelson, vice chairman of the child custody committee of the American Bar Association's family law section. "But now that they have said something on that, it is unlikely that they will get back into that thicket."

Richard S. Victor, a Michigan lawyer who founded the Grandparents Rights Organization, a nonprofit group that advocates visitation rights for grandparents, said the Troxel ruling shifted the burden for proving the best interest of a child from parents to grandparents. But it did not strike down laws that allow grandparents visitation rights under prescribed circumstances.

"This ruling shows that Ohio's law met the threshold," Mr. Victor said. "And that is the theme of what is going on around the country right now."

Here (thanks to How Appealing) is the link to the Ohio decision, Harrold, et al. v. Collier.

Posted by Marcia Oddi on Tuesday, October 11, 2005
Posted to General Law Related

Ind. Gov't. - Still more on "IDEM claim of quickly cleared cases is challenged"

The ILB has belatedly discovered that the Sunday Indianapolis Star carried this Letter to the Editor, titled "Keep light on IDEM and reporting of violations," about the Star's earlier story on IDEM enforcement statistics. It reads:

The Star identified an important problem in its article "New records show IDEM claim wrong" (Oct. 2). The article details how the Indiana Department of Environmental Management's new commissioner and new enforcement chief exaggerated the number of old cases that have been resolved since they took office.

I am an attorney who handles matters regularly with IDEM. In particular, I handle more of the enforcement matters described in the article than any other attorney in the state. I can attest that the transition at IDEM since Gov. Mitch Daniels took office has not been smooth.

One of the main concerns raised in the article is that IDEM may be sweeping many violations under the rug. The legislature shares this concern. State law requires IDEM to provide a detailed annual report regarding all environmental violations during the previous year that it views as minor. These violations are subject to reduced penalties or warnings. The law also requires the agency to issue regulations, through environmental management boards, to identify these violations.

Unfortunately, IDEM seems to regard this law as an unfortunate intrusion by the legislature into the agency's business. The result is that no one really knows what violations IDEM is failing to pursue. I hope that The Star will continue its coverage of the serious management problems at IDEM.

Mark E. Shere

For background, see this ILB entry from 10/1/2005, quoting the original Fort Wayne Journal Gazette story by Niki Kelly (later syndicated). This entry also includes links to a number of relevant documents. In addition, see this ILB entry from 10/3/05, linking to a copy the ILB obtained from IDEM of the list mentioned in Ms. Kelly's story.

Posted by Marcia Oddi on Tuesday, October 11, 2005
Posted to Indiana Government

Law - More on flood insurance issues

The ILB has posted several entries on flood insurance, in cluding these from: 9/4/05 and 9/29/05 (which includes additional links). Today the Washington Post has a story headlined "Repeat Claims Strain Federal Flood Insurance: Program Often Funds Risky Rebuilding." A quote:

The National Flood Insurance Program was established by Congress in 1968 to cover property owners who build in flood-prone areas, which are considered too great a risk by private insurers. It followed years of devastating floods and political debate over whether the government should step in to offer insurance.

Nearly from its inception, the program has struggled to pay all its claims. It collects $2 billion in annual premiums but has no reserves, heavily subsidizes some of its riskiest customers and relies on the Treasury to bail it out when losses exceed income. Losses this year from Katrina and Hurricane Rita alone could top $10 billion, experts say, forcing the program to borrow billions from taxpayers with no guarantee of repayment.

Many claims will come from properties that flood repeatedly. As coastal development has increased and more storms have hit the area, properties with repeated losses along the Gulf Coast have been making a growing share of the claims against the government-backed program, according to a Washington Post analysis of federal data. Among the tens of thousands of such properties are older buildings in cities such as Houston and New Orleans, and in small outlying towns. Thousands of others are in resort communities such as Dauphin Island. Overall, the five Gulf Coast states account for $6 billion in claims since 1978 -- half of the total nationwide.

Officials at the Federal Emergency Management Agency, which administers the flood program, say they cannot prevent anyone from building in a flood-prone area. They can only set building and elevation rules for property that qualifies for federal insurance. They say those requirements save taxpayers $1 billion a year in disaster costs.

Some researchers, however, question that assertion and say that FEMA's policies feed a vicious circle: They enable a boom in coastal development that leads to increasingly costly flood insurance payments that in turn fuel even more development. The researchers argue that FEMA and Congress ought to make such programs contingent on communities doing everything possible to lessen risks, including pulling back from the shoreline.

Posted by Marcia Oddi on Tuesday, October 11, 2005
Posted to General Law Related

Ind. Law - Methamphetamine regulation has big loophole - other states with less restriction

The South Bend Tribune has an AP story by Ryan Lenz today that begins:

RISING SUN, Ind. -- When Indiana restricted the sale of over-the-counter cold medicines this year, pharmacist Dan Beyer suddenly found himself a front-line defender in the state's war against methamphetamine.

But the drug producers the law aimed to choke out have sidestepped its reach by stockpiling supplies in states that don't limit sales of pseudoephedrine, a popular ingredient in meth.

"They're going to the places with the least resistance," said Beyer, who owns the Rising Sun Pharmacy 15 miles outside Ohio, which does not restrict pseudoephedrine sales.

"If we're going to do all this work and all they have to do is cross a river, we've accomplished absolutely nothing," he said.

The story is accompanied by this map showing restrictions by state.

Here are links (12/27/05 and 12/28/05) to ILB entries on a 3-part Louisville Courier Journal series on meth resriction published late last year. See also this entry from 9/8/05 pointing out defects in the law Indiana law.

Posted by Marcia Oddi on Tuesday, October 11, 2005
Posted to Indiana Law

Environment - Stories today on CAFOs, coal sludge

"Dairy CAFO not dead yet" is the headline to this story in the Muncie StarPress by Seth Slabaugh. Some quotes:

HARTFORD CITY - A lawsuit has been filed asking Blackford Circuit Court to order the Board of Zoning Appeals to conduct a public hearing on Oolman Dairy's application for a special exception.

Gerwin and Marinke Oolman, formerly of The Netherlands, want to build a 2,000-cow dairy CAFO (concentrated animal feeding operation) northeast of town. The project has generated opposition from several hundred residents who claim it will stink, contaminate waterways with manure, make noise, attract rodents, employ low-paid immigrants, lower surrounding property values, and impair their quality of life.

Indiana law requires that a board of zoning appeals must approve or deny all special exceptions, according to the lawsuit filed by Federoff Law Firm of Fort Wayne.

"Here, the BZA wrongfully refused to approve or deny the application, and wrongfully refused to hear evidence or hold a public hearing on the application," the lawsuit alleges.

BZA attorney Dean Young declined comment. The BZA voted Aug. 23 not to hold a public hearing on the application. But the board did conduct a public hearing on May 24 on a prior application.

The Oolmans withdrew that application at a June 7 meeting at which the board was scheduled to vote to approve or deny the case. The couple withdrew it after learning that Young was going to advise the BZA to deny it on grounds of insufficient evidence.

(A number of earlier ILB entries on this application may be found by typing "oolman" in the search box.)

"Few outward signs remain of Eastern Ky. sludge spill: Lawsuits continue five years later" is the headline to this story in the Louisville Courier Journal. Some quotes:

"There's a facade of normalcy," said John Kirk, a lawyer who filed suit on behalf of 20 people against Martin County Coal yesterday, the day before the statute of limitations runs out. "The vegetation is back. Grass has been planted along the stream banks."

Kirk said, however, that sludge remains in the soil despite a $46 million cleanup. The lawsuit seeks unspecified damages.

More than 400 people who took part in lawsuits against the coal company already have reached out-of-court settlements. In each case, the plaintiffs agreed not to disclose the terms.

See earlier ILB entries from 9/16/05 and 9/20/05.

Posted by Marcia Oddi on Tuesday, October 11, 2005
Posted to Environment

Law - Impact of HIPPA on public records law

The Cincinnati Enquirer reports today on an case being argued today before the Ohio Supreme Court. It involves a dispute between the Cincinnati Enquirer and the Cincinnati Health Department. Some quotes:

The Cincinnati dispute arose last year when the newspaper requested records of citations that the health department has issued to property owners for failing to eliminate sources of lead poisoning, such as lead-based paint.

The records show the addresses of the buildings cited and the names of property owners who have been ordered to clean up sources of lead poisoning.

Health department officials refused to provide the records because property owners are cited when a child living at their property is found to have high levels of lead in his or her blood.

City lawyers argue that sharing the records would violate the privacy of those children - and federal law - because the citations are based on medical tests.

"It is reasonable to believe that (the records') disclosure could facilitate the identification of the individual children who were tested," the city's lawyers wrote in a recent legal brief.

The Enquirer has argued that the citations contain no medical tests or names of children and that the failure to disclose them keeps important health information from the public. Without the records, the newspaper contends, it would be difficult to determine whether landlords are following orders to clean up their properties.

In refusing the request, the health department cited the Health Insurance Portability and Accountability Act, also known as HIPAA. The goal of HIPAA was to give people more control over their health records and how they are used.

But the law became a source of conflict and confusion when the U.S. Department of Health developed privacy rules in 2003 that prevented the release of previously public records.

Hospitals now withhold information about patients' conditions, some police departments have refused to provide records, and a variety of government agencies have limited the information they provide to media outlets.

The new reluctance to share information is based in part on HIPAA's penalties, which include fines and up to 10 years in prison.

Media organizations, including The Enquirer, have filed suits arguing that the law is being interpreted incorrectly and is being applied to records that should be public.

Here is a link to the summary of the case, State ex rel. Cincinnati Enquirer v. Daniels, Case no. 2005-0068, to be argued today. You may listen to the oral argument live, or on demand.

Posted by Marcia Oddi on Tuesday, October 11, 2005
Posted to General Law Related

Ind. Gov't. - Indiana's public access law featured

"Keeping secrets: Hoosiers are wrongly denied access to meetings and information in half of their requests to governmet" is the headline to a front-page story in today's Indianapolis Star by John Strauss. The office of the Indiana Public Access Counselor is featured.

The story points out that while the agency is effective, its law is toothless at the administrative level:

But when agencies don't release records or open up public meetings, citizens generally have only one very limited, and expensive, option: filing suit.

"You can have an opinion from the public access counselor, but it's just an opinion. In order to enforce it, you have to go to court," said Warren Auxier, a Hanover business owner who has filed three formal complaints against agencies with the access counselor.

Members of the public have to pay for their own legal help, he noted, while the agency they're challenging is using public funds.

Auxier won a ruling from the public access counselor last year that entitled him to documents from a Southern Indiana economic development agency. When that office refused to comply, he filed suit.

Auxier "won" the records he sought, through a settlement with Madison Industrial Development Corp. But it cost him $12,000 in attorney fees.

Access the Auxier opinion here.

More from the story:

In Fort Wayne, Charles Garnette won the right to avoid dollar-a-page copying fees at a county office by photographing the records with a digital camera.

Garnette went to the Allen County recorder's office in April to look at documents on a computer. As he used a small digital camera to make copies, an employee told him to stop.

Garnette made a formal complaint. In the opinion that resulted, Davis said the issue had not come up before, but that a digital camera clearly fit within the meaning of the law allowing people to "inspect and copy" public records.

Access the "camera" opinion here.

Posted by Marcia Oddi on Tuesday, October 11, 2005
Posted to Indiana Government | Indiana Law

Monday, October 10, 2005

Ind. Econ. Dev. - Financing ethanol plants

The Decatur Daily Democrat has a story today titled "Ethanol plant builder seeks Wells aid." Some quotes:

BLUFFTON, Ind. (AP) — The company planning to build a $135 million ethanol plant in Wells County is seeking $50 million in guaranteed bonds from local governments to help pay for its construction.

Indiana Bio-Energy will also be funded by private investments, bank financing and investment capital, said David Dale, an attorney and one of the project’s investors. Without the financing from Wells County and Bluffton officials, the project will not be possible, he said. * * *

Dale told local officials the financial risk for the area governments is small and the plant’s revenue will pay off the bonds.

The proposed ethanol facility would be built on about 330 acres just outside the town. It would produce about 100 million gallons of ethanol a year and have as many as 55 employees.

Indiana’s only current ethanol plant is in South Bend, but four more are under construction and plants also have been proposed in Marion, Hartford City and Winchester. * * *

Officials said the plant will absorb about 25 percent of corn produced in a nine-county area surrounding the site.

Indiana Bio-Energy’s 12 investors include a Wells County commissioner and the husband and son of the county’s assessor.

Posted by Marcia Oddi on Monday, October 10, 2005
Posted to Environment | Indiana economic development

Environment - Tippecanoe County may restrict crematoriums

What with all the concern about living next to a transfer station or a hog farm, I really hadn't focused on living next to a crematorium. But Dan Shaw writes today in the Lafayette Courier&Journal that:

Those who don't like the thought of a crematory being built near their homes would have less to worry about if a measure recommended by a local committee becomes law.

The ordinance mandates that crematories in residential or agricultural areas be part of an existing or planned cemetery and that they stand at least 500 feet away from the lot lines of the nearest residence.

Moreover, the changes would prohibit new crematories in business zones, thereby diminishing the chances that Hippensteel Funeral Home Inc. could build one at 1704 N. Ninth St. Faced with public resistance, the funeral home recently dropped a proposal to build one there.

Along with the new restrictions, the ordinance opens the door for crematories moving into industrial zones. * * *

For it to take effect, though, the Area Plan Commission, which meets again Oct. 19, still must pass it. Then it would be left to local governments -- the city councils of Lafayette and West Lafayette, and the county commissioners -- to decide if they want it to apply within their jurisdictions.

The new ordinance would also mandate that those who wish to build a crematory in an agricultural or residential zone be permitted to do so only after they have received the approval of the area board of zoning appeals.

Lafayette councilman Perry Brown, D-District 3, whose district contains the site where Hippensteel proposed building the crematory, said he wants to the study the ordinance more closely before deciding if he will vote for it.

On one hand, he understands that a crematory in a neighborhood or close to apartments might depress nearby property values.

Still, "you can write this thing so it can never be done, so it would be impossible to build a crematory within the city limits," he said. That's an outcome he equally wants to avoid, he said, because crematories render an irreplaceable service.

Members of the APC ordinance committee conceded Wednesday that the writing of the new crematorium ordinance is being driven by the "ick factor" as much as anything.

Posted by Marcia Oddi on Monday, October 10, 2005
Posted to Environment | Indiana economic development

Ind. Gov't. - More on Porter County considers digitizing records

Apparently more than one reporter attended last Wednesday's Porter County Commissioners and County Council meeting. In additional to the Gary Post-Tribune report (see this 10/6/05 ILB entry), we now have this Chesterton Tribune report, by Vicki Urbank. Some quotes:

County officials seem to be in agreement that county departments would gain valuable office space and possibly increase productivity by converting to an electronic format for county records. But a big sticking point is the extent to which decades and decades of old documents should be digitized in order to free up space.

The Porter County Commissioners and County Council held a joint meeting Wednesday to discuss the proposal to scan records, with their contents stored in an electronic format and possibly cross-referenced for easy retrieval. The meeting was a continuation of a discussion that began at a commissioner meeting last month.

Although some departments are required by law to keep paper records for a certain period of time, the digitized system is expected to free up badly needed office and storage space in county buildings. * * *

Porter County Clerk Dale Brewer said historic county records, from marriage licenses to deeds, are in danger since there are no back-up records. If ever a disaster struck the county buildings, “we’re screwed,” she said.

Information Technology Services Department Director Sharon Lippens said the departments that want to use the scanning system for their records are adult probation, the clerk’s office, health department, treasurer, prosecutor and plan commission. But she predicted that once the system is in place for those departments, others will want to join in.

An estimate cited at the meeting put the costs at between $115,000 and $125,000 to purchase the server, the scanners, the software and the program licenses. The proposed system is expected to have the capacity to hold three years worth of documents before the county would have to upgrade. But the cost to digitize the county’s old records already stored or filed away is estimated at $1.1 million.

Porter County Council President Robert Poparad, D-1st, said he thinks everyone is in agreement that the project should get underway for the records that will be generated by the departments from this point forward. Instead of going forward with the larger project of scanning all the old documents, Poparad suggested that the scanning be done in-house over time, with employees given the task whenever they have downtime.

Porter County Deputy Prosecutor Brian Gensel said his office was the first to scan documents but put the project on hold after budget cuts. He said his office has the equipment needed, but lacks the manpower to get the scanning done. * * *

The funding for the project might come from the county government’s share of the County Economic Development Income Tax. The proposal is expected to be presented to the county council at its November meeting.

The commissioners were directed to come up with a plan prioritizing the needs in each department, the amount each would get for the scanning project, and the amount that should be spent to begin scanning the old documents.

See also this related ILB entry from yesterday on putting court records online.

Posted by Marcia Oddi on Monday, October 10, 2005
Posted to Indiana Law

Ind. Law - More on federal trial over whether communities have right to restrict new medical centers

On Oct. 6th the ILB quoted from an Indianapolis Star story about a federal trial over whether communities have right to restrict new medical centers, taking place in U.S. District Judge David F. Hamilton's courtroom in Indianapolis. Here is another detailed story on the same trial's first day, from the Mooresville/Decatur Times. Headlined "Hospital suit first of kind in state," the reporter is Keith Rhoades.

Posted by Marcia Oddi on Monday, October 10, 2005
Posted to Indiana Law

Environment- More on logging Indiana forests; stadium dirt; rumored reservoir; states take on feds

"State forester seeks vision for land use" is the headline to this story by Lesley Stedman Weidenbener in today's Louisville Courier Journal. A quote from this very interesting story:

While at Purdue, [John Seifert] spent most of his time in research -- bringing money to the university, writing up his studies in publications and educating landowners about his findings. He traveled to European countries to study their forests. He researched hardwoods, worked on ecology-management issues with the Hoosier National Forest and examined the issue of timber harvests.

He applied and tested many of his theories and ideas in his own forests. And he became a volunteer and leader in several forestry organizations.

And he was content. "I never really wanted to be the state forester," he said. "It was never my goal."

But after Republican Mitch Daniels was elected governor and he appointed Kyle Hupfer DNR commissioner, Seifert began wondering what kind of managers they would be for the forests. Others wondered too. And some began to urge Seifert to seek the job.

So Seifert -- who had never been involved in anything political -- applied and said he was happy when he found people who supported his ideas about forestry. The Daniels administration offered something else too -- a chance to act.

See also this earlier Weidenbener story from 9/30/05, headed "State to expand logging of forests."

"Dirt dumping plan causes dust-up in county" is the headline to this story by Greg Mitchell in the Mooresville/Decatur Times. The story begins:

The Indiana Stadium and Convention Building Authority and the excavation contractor hired to excavate the new Colts stadium and convention center site have plans to dump more than 350,000 tons of arsenic-contaminated soil in a gravel pit on the border of Johnson and Morgan counties.

The Indiana Department of Environmental Management granted an exemption from state regulations to allow solid waste to be deposited at an unregulated dumpsite.

Wallace Construction owns the gravel pit, located at 9790 Old Ind. 37 North, that appears destined to receive the exempted waste. What remains uncertain is whether the proposed disposal site will have a liner and engineered cap to contain the waste. According to one estimate, the 350,000 tons of waste will contain more than 6,000 pounds of arsenic. The site is less than a quarter mile east of White River.

The Indiana Stadium and Convention Building Authority was formed to oversee the construction of the new Colts stadium in downtown Indianapolis and future expansion of the Indianapolis Convention Center. Opponents allege that the authority, its attorneys and consultants have been working for months to quietly obtain the approval of IDEM for this dumping.

In a letter dated Sept. 7 from Bruce H. Palin, Assistant Commissioner in the Office of Land Quality, the state agency authorized the off-site dumping of some of the contaminated soil from the stadium excavation, noted several restrictions.

Most notable among those restrictions was the requirement that the excavated soils could only be deposited at an industrial site with arsenic concentrations at least as high as those found in the stadium soils. Other restrictions specified that the disposal site must have restricted deed covenants that would limit current and future use to industrial land uses. Also stated in the letter, the disposal site would have to comply with state and federal regulations and obtain a storm water discharge permit.

Some citizens say the proposed dumpsite does not satisfy all the stated criteria.

See also this 10/6/05 ILB entry titled "State says dirt from stadium site poses no threat."

This story immediately caught my attention with this lead:

Green Twp. It was shoulder-to-shoulder, standing room only as some 400 residents packed the gymnasium at Green Township Elementary School Wednesday to learn more about a rumored reservoir coming to the area.
The story, from the Mooresville/Decatur Times, continues:
Rogers and several other township residents organized the meeting to let residents know what factual information existed on the rumored reservoir, after rumors began to widely circulate in March that a private development group or the Indianapolis Water Company was looking to construct a 1,200 acre man-made lake in the Cope area along Ind. 44.

After a confidential source confirmed to Rogers there was something to the rumor, and using his civil engineering background, Rogers said he was able to map out a potential lake area.

“I thought I had enough to talk about and let people know what’s going on,” he explained. “It was firm enough information that I could pick a location for a dam.”

In June, Morgan County interim Plan Director Kenny Hale confirmed that a developer had been looking to build a lake and housing development in Green or Jackson townships, which could be one of the largest single development projects in the county’s history.

Hale declined to identify the developer, but also confirmed he had met with representatives several times over the past few months.

According to his source, Rogers identified the developers as Clear Creek Partners, L.P., based in Indianapolis, but with partners in Martinsville and Zionsville.

Rogers said the scope of the project under consideration is a larger version of Geist Reservoir, which straddles northern Marion and southern Hamilton counties, an area known for its expensive lake homes. * * *

Indianapolis attorney Joseph Hamme explained that only government entities, such as the state or county, could take property for projects like this one, not private developers directly.

Once a fair offer has been made for the property and turned down, the government would then file a lawsuit to condemn the land for the project. Hammes explained that during a condemnation hearing, a judge and jury would decide what the fair market value for that property would be.

Rogers said the group would continue to watch for permits filed to build a reservoir with either the Army Corps of Engineers, the Indiana Department of Environmental Management and the Indiana Department of Natural Resources. The group has a Web site, to provide more information.

[More] See this story from the Christian Science Monitor headlined "States take on feds over environment: Some 27 states are involved in a dozen initiatives or lawsuits." Some quotes:
Just days before leaving office, President Clinton put almost one-third of old-growth national forests off bounds to road construction. The Bush administration reversed that "roadless rule" last summer, citing a need for forest fire protection and states' rights.

Then something unexpected happened: California, Oregon, and New Mexico rebelled. In August the trio - one quarter of the states most affected - sued the US Forest Service to prevent road building and logging in 90,000 square miles of virgin forest.

This mini-mutiny by itself might seem minor, but it's only one of the latest bubbles in a national groundswell of state-led lawsuits and environmental initiatives that some say represents what could be the start of a long-term shift in US environmental regulation and enforcement from the federal government to states.

Dozens of states, frustrated over federal actions or inaction on the environment, are trying to fill the gap with their own green initiatives - or are filing lawsuits to block federal changes they say would weaken existing environmental regulations. In the past two years some 27 states have participated in at least a dozen major environmental initiatives - often lawsuits - in opposition to federal environmental policies, a Monitor analysis shows.

Examples range from states ganging up to sue the nation's five largest power companies directly for their carbon emissions, to suing the Environmental Protection Agency (EPA) over regulatory changes concerning mercury emissions to developing a Kyoto-like global warming pact.

There is much more to this story, plus a map identifying the 27 states that "have been involved in major initiatives in six areas of enviromental concern." Indiana is not among them.

Posted by Marcia Oddi on Monday, October 10, 2005
Posted to Environment

Ind. Law - "Bankruptcy changes overload law offices"

"Bankruptcy changes overload law offices" is the headline to a story by Bill Medley in today's Evansville Courier& Press. Some quotes from the beginning of the lengthy piece:

Seven-day workweeks and extended hours have become standard for several Evansville law offices dealing with a looming change in bankruptcy law.

When the new law goes into effect Oct. 17, those seeking Chapter 7 bankruptcy will face higher fees and tougher filing requirements. Local attorneys have seen a surge in business as clients try to file before the deadline.

"I usually get two to three calls a week about bankruptcy," attorney William Nesmith said. "I'm up to 40 a week now."

Nesmith accepted his final client under the expiring bankruptcy code late last month. With jury trials coming up and numerous other cases to oversee, Nesmith's office could no longer handle the swarm of clients seeking to file for bankruptcy in the next few days.

"We just can't promise people we can get them in under the old law anymore," Nesmith said. "There's just too much. It's almost a panic."

The rush has hit federal bankruptcy courts across the nation and locally. In August, Chapter 7 filings in Evansville increased by 83 percent compared to a year ago, according to court officials. In July, Chapter 7 filings were up 42 percent from a year earlier.

Posted by Marcia Oddi on Monday, October 10, 2005
Posted to Indiana Law

Law - Lawyers study Vioxx trial

"Lawyers study Vioxx trial: Lawsuits against drug maker draw attorneys seeking to craft their own cases" is the headline to this story in today's Indianapolis Star. Some quotes:

This kind of monitoring is standard practice for lawyers involved in class-action cases, and it occurred at the first trial over Vioxx in Texas. Typically, it is done by lawyers whose firms have a large number of related cases and are within geographic reach of the courthouse, helping them craft their cases by seeing what works and what doesn't. * * *

"This is a bellwether case," Davis said. "It's been identified by both the court and both sides as having some value as a precedent in establishing the liability and the value of these cases. While it may take 10 or 20 trials to establish the value of all the cases, at some point, both sides will have an idea of the probability of success of those cases in New Jersey."

For some earlier Vioxx stories, see this 8/21/05 ILB entry.

Posted by Marcia Oddi on Monday, October 10, 2005
Posted to General Law Related

Ind. Courts - STAR supports Increased state funding for more Marion County judicial officers

Last Tuesaday the Indianapolis Star had a story about Marion County's request for eight more judges. (See ILB entry here.) Today the Star has an editorial titled "Short on justice for Marion County." It begins:

Our position: Increased state funding for more Marion County judicial officers is more than justified.

According to figures recently given to Indiana's Commission on Courts, if Marion County received similar state funding to other urban counties, it could add an additional 25 judicial positions.

It also could receive a similar increase in judges and magistrates if the county's caseload was similar to other Indiana counties' -- 24 additional judges if weighted caseload adjustments are used.

That's why the county's request for state funding of just four additional judges and four additional magistrates seems so reasonable.

Although Marion Circuit and Superior courts handle nearly 16 percent of the cases filed in Indiana, only 10 percent of the state's judges and magistrates preside over them. The state funds only 60 percent of the costs of judges and magistrates in Marion County, compared to 80 percent in Lake County and 100 percent in Allen and St. Joseph counties.

This inequity puts an unfair burden on local property taxpayers and recently led to a local-option income tax increase to fund a seventh major-felony court. It also makes it more likely that litigation for Marion County residents will be heard by an inexperienced appointed official instead of a full-time judge or magistrate.

Posted by Marcia Oddi on Monday, October 10, 2005
Posted to Indiana Courts

Sunday, October 09, 2005

Ind. Courts - Vanderburgh County plan to put records on line is stalled

The Evansville Courier & Press has a story today, by Bryan Corbin, reporting that efforts to post Vanderburgh County's court records online are on hold. Some quotes:

Officials have a plan, a software vendor and a cost estimate: up to $280,000. But they don't have the funding. The online court records project was not budgeted by the Vanderburgh County Council, and it remains on the back burner until financing materializes.

During Marsha Abell's two terms two terms as Vanderburgh County clerk, she advocated for the project. "I think definitely we should be online. I wanted to do that when I was clerk, but I never could get anybody to put it in the budget," Abell said. * * *

The [current] CourtView software provides the court's "minutes" (or official entries of what transpired in a case on particular dates) and offers printouts of the docket sheet for $1 a page. To obtain a court pleading or motion, people must go to the main county clerk's office, request the case file, and make copies - again, at $1 a page. * * *

If court docket sheets were posted online, citizens could search from home, though they might be charged a fee to download. No decision has been made on fees.

Vanderburgh Superior Court Judge J. Douglas Knight has helped spearhead the online-access effort. "It would be helpful in so many different ways," he said. Bankers, merchants, landlords and child-care centers all could use CourtView's search function to conduct background checks, he said.

Though nearly all county governments have Web sites, their court pages typically are limited to general information: blank marriage license and protective-order forms that can be downloaded. In counties such as Vanderburgh, Warrick, Gibson, Pike and Posey, records of individual court cases aren't yet online. Notable exceptions are courts in Tippecanoe and Lake counties.

This ILB entry from 10/6/05 reports on digitization projects in several other counties.

The Evansville C&P story today also reports on the stalled state court plan to link Indiana's local civil and criminal courts. That is somewhat old news, first reported in the Indianapolis Star on Sept. 26th (see ILB entries here and here.) However, today's C&P story ends with this:

With the state's completion date uncertain, does it make sense for Vanderburgh County to take the lead and post its own records online first? [Former Vanderburgh County clerk Marsha] Abell believes it does. "I wouldn't count on (the state) having this ready to go anytime soon," Abell said.
Meanwhile, a number of counties do have their records online. One private company involved in putting local court records online is Doxpop LLC in Richmond. On 9/30/05, Nick Fankhauser, the VP for Product Development at Doxpop, sent the ILB an e-mail that led to this informative ILB entry. Doxpop currently serves more than two dozen Indiana counties.

For those who are curious, it is possible to run some searches on the Doxpop site without registering: "You can use our court case search features to find basic information about open cases, or you can register to become a subscriber and access all available information about current and historical cases."

[More] Here is the Lake County online docket. Here is the link to the Tippecanoe County courts main page.

Posted by Marcia Oddi on Sunday, October 09, 2005
Posted to Indiana Courts

Ind. Gov't. - FSSA urges "localization," not "privatization," at Richmond State Hospital

The Richmond Paladium-Item has this story today wherein Mitch Roob, FSSA secretary, makes the distinction. Some quotes:

FSSA Secretary Mitch Roob wants to make clear that plans for the Richmond State Hospital involve localization, not privatization, and that there is, he insists, an important difference.

"It is something of a euphemism that I made up," Roob said in a Friday telephone interview about the localization term. He also argues in a guest column on today's Viewpoints page that in privatization, an organization is brought in to make changes that government couldn't make.

"You bring in new people to radically alter what you're doing today to save money," Roob said about privatization. "It's not the right answer here."

He said the decision is not being made to save money and the state hospital's employees' jobs are not in danger.

FSSA Media Specialist Brian Carnes said the FSSA would negotiate for state hospital employees to receive the same or better salary and benefits as they receive currently.

What Roob wants to see at Richmond State Hospital is a local not-for-profit organization contracting with the state to care for the needs of patients. He said he doesn't think the state hospital needs radical change, but that keeping FSSA as the service provider is, he contends, the wrong way to go for the long run. Mental health, he emphasizes, is the only area where the FSSA itself provides direct services to Hoosiers. Other services are contracted out, he said.

The Richmond paper today also carries an opinion piece by Secretary Roob, that begins with the question: "Should state government make or buy inpatient mental health care?" Some quotes:
Last year, FSSA funded treatments for more than 100,000 Hoosiers for out-patient mental health care and substance abuse, yet none of those people were treated by FSSA employees. In addition, FSSA pays for long term care for the elderly, training for the developmentally disabled and well-baby care. FSSA is truly a health care financing agency -- we buy health care, we don't provide it.

The only exception is inpatient mental health care.

FSSA currently owns and operates several state mental health hospitals. Indiana, like many states, has gradually reduced the number of those hospitals thanks to the outstanding progress in mental health care in the last 20 years. New treatments and drug therapies allow millions of people to live less painful and more productive lives that may not require long-term hospitalization. Because of this, Indiana has chosen to transfer a substantial amount of patients and dollars to community-based not-for-profit healthcare providers.

However, government models of care tend to stagnate. They are overseen in Indianapolis while the actual care is often delivered far away. Our state hospitals should be free from the shackles of a bureaucracy cumbersome and benignly neglectful at best, and at worst meddling and contradictory.

When state government decides a hospital's care model has so clearly stagnated it has become politically or financially embarrassing, someone in Indianapolis becomes responsible for downsizing or closing the hospital. This is typically done with little regard for the effect such action has upon the local community, not to mention the trauma to the families, and most importantly, to the patients. Frankly, this is the history of the closure at Central State and Muscatatuck. Now, sadly, Fort Wayne may face a similar future.

But I believe we have a unique opportunity to stop this devastating cycle. Currently, FSSA's state hospitals in Madison, Richmond and Evansville are needed and likely to be relevant for the foreseeable future. These facilities have recently been rebuilt and the model of care they employ is current.

The communities housing these facilities, along with the employees who operate them, should be given -- or better yet, have a role in developing -- a governance model that keeps pace with clinical and operating changes. Hospitals that stay current stay in operation, and therefore, remain a vital part of the local economy.

This is why I have proposed "localizing" state mental health facilities. By this I mean that locally chartered not-for-profit providers are awarded the contracts to run/operate the facilities. It is also my intention that current employees will be offered jobs at or even above their current wages and with retirement and healthcare benefits equal to state government.

Posted by Marcia Oddi on Sunday, October 09, 2005
Posted to Indiana Government

Ind Decisions - Is Purdue subject to the age discrimination law?

On Thursday, Oct. 20th at 9:00 AM, the Indiana Supreme Court will hear oral arguments in the case of Michael Montgomery v. Trustees of Purdue University. The summary on the Court's calendar:

The Tippecanoe Superior Court dismissed a complaint that Montgomery filed against the Board of Trustees of Purdue University under Indiana’s Age Discrimination Act. The Court of Appeals affirmed after concluding that Purdue was not subject to the act. Montgomery v. Bd. of Trs. Of Purdue Univ., 824 N.E.2d 1278 (Ind. Ct. App. 2005), vacated. The Supreme Court has granted transfer and assumed jurisdiction over the case. Attorney for Montgomery; Raymond Hafsten, Jr. of Indianapolis, IN. Attorneys for Board of Trustees; Deborah Trice and Karen Orr both of Lafayette, IN.
The 4/7/05 ILB entry on the Court of Appeals opinion includes this quote from the opinion:
The question here is whether, notwithstanding Kimel, Purdue is “subject to” the ADEA [federal Age Discrimination in Employment Act] and therefore not an “employer” for purposes of the IADA [Indiana Age Discrimination Act]. Both parties agree that the Eleventh Amendment shields Purdue, an instrumentality of the state, from private actions for monetary damages under the ADEA. Montgomery contends that Purdue is therefore not “subject to” the ADEA. Purdue disagrees, contending that it is “a governmental entity which is ‘subject to’ the ADEA through private actions by employees for injunctive relief and by direct enforcement by the [EEOC]. Purdue also observes that the First Circuit has held that the ADEA remains applicable to and may be enforced against the states. [citations omitted]
Here is a direct link to the Court of Appeals decision, now vacated.

Posted by Marcia Oddi on Sunday, October 09, 2005
Posted to Ind. Sup.Ct. Decisions

Law - Silica claims may mark a turning point in tort wars

"The Tort Wars, at a Turning Point" is the headline to a very long front-page story in the Business section of today's NY Times. Some quotes:

FOR the lawyers who file lawsuits against corporations, it looked like the next big thing - the next fen-phen, asbestos or even tobacco, the mother of all jackpots.

Like the lawsuits involving asbestos, the fire-retardant material that when inhaled can cause a horrible lung cancer, the new suits involved a substance that under certain circumstances could harm the lungs: silica, a purified sand used as a cleaning abrasive as well as in making glass, paint, ceramics and other materials. Silica dust, when inhaled, can lodge in the lungs, causing silicosis, a disabling and often fatal lung disease.

For the companies facing litigation, it looked like a repeat nightmare. After all, settling asbestos claims - more than 700,000 have been filed over the last 30 years - has cost more than $70 billion, according to the RAND Corporation. Of that amount, RAND estimates that nearly one-third has gone to plaintiffs' lawyers.

But silica cases have turned the conventional wisdom of asbestos litigation on its head. Instead of settling early, paying money into a compensation fund and using bankruptcy filings to put the liability firmly into the past, companies facing silica suits fought back - and won a crucial victory that is already being copied by other lawyers fighting class-action lawsuits. By playing courtroom hardball, forcing lawyers for claimants to produce evidence that their clients had silicosis symptoms and deserved compensation, a small group of defense lawyers may have just changed the rules of so-called mass tort litigation.

Vindication of the strategy, which companies and their insurers initially viewed as very risky, came in June in the form of a harshly worded, 249-page decision by United States District Judge Janis Graham Jack in Corpus Christi, Tex. Judge Jack not only called for sanctions on one of the plaintiffs'-side law firms, but she also slammed the whole process that led to the claims landing in court in the first place. The medical findings underlying the claims, based on X-ray screenings paid for by lawyers looking for potential clients, were worthless, she wrote. * * *

Although Judge Jack's decision did not end the litigation - it sent many cases back to the state courts where they had been filed - it was a landmark event, with a clear lesson for companies everywhere that are under attack by trial lawyers.

The Times helpfully provides a link to the decision, but it does not appear to be operative. Here are the links from the USDC, SD Texas itself, to In re Silica Products Liability Litigation, including appendices and exhbits. Here is the direct link to the 249-page opinion itself (Main Document #1902 - "addressing subject-matter jurisdiction, expert testimony and sanctions"); for some reason it also takes some time to appear on the browser screen.

Posted by Marcia Oddi on Sunday, October 09, 2005
Posted to General Law Related

Saturday, October 08, 2005

Ind. Courts - Internet project brings beauty of county courthouses home

The Indianapolis Star has a story today featuring the Supreme Court's internet project highlighting Indiana's 92 counties.

For more, see this 8/29/05 ILB entry titled "Virtual Tours of Indiana's Courthouses."

Posted by Marcia Oddi on Saturday, October 08, 2005
Posted to Indiana Courts

Ind. Decisions - Judge takes infant off life support

As reported by Tim Evans today in an above-the-fold, front-page story in the Indianapolis Star, Marion County Superior Court Judge Marilyn Moores yesterday "ordered life support removed Friday from a 5-month-old Indianapolis boy with a severe head injury that investigators say was caused by abuse." More:

The Marion County Department of Child Services requested the removal of the ventilator that is keeping Hamad Elijah Sanda alive. The agency took custody of the baby Sept. 26, four days after he was brought to the Methodist Hospital emergency room with a skull fracture and brain injury.

Citing the boy's grave condition and testimony from medical experts who said there was nothing more they could do, [Judge Moores] issued the order over the objections of Hamad's mother, Tiwanna Sanda. The judge also issued a "do not resuscitate" order. * * *

Moores said it was up to hospital officials to determine when to remove Hamad from the ventilator. Medical personnel will continue to provide water or nutritional support to the baby through a feeding tube.

Dr. David Westenkirchner, director of the pediatric critical care unit at Methodist, testified Friday that it was not known how long the boy would survive after the ventilator was removed.

Moores recessed the hearing so that members of the hospital's medical ethics committee could review the case and issue a recommendation. When the hearing resumed late Friday afternoon, Westenkirchner said he and three members of the committee agreed it was medically ethical to remove the child from the ventilator even though he does not meet the legal definition of "brain dead" because there is some brain stem function.

In her ruling, Moores wrote that she had been assured by the medical experts that "he will never be able to eat by mouth. . . . He would likely be blind and deaf. He will never sit, stand, roll over, crawl, talk, smile, laugh or in any way interact meaningfully with his environment." "There is no medical treatment that can be provided to reverse the severe and extensive damage that has been done to his brain."

While no one has been criminally charged in the case, Moores said the evidence was clear that the boy's injuries -- including several fractures that predate the brain injury -- were the result of abuse. Indianapolis police are continuing an investigation into how the boy was injured. * * *

The hearing offered a rare glimpse into the workings of the juvenile justice and child protection systems. Those proceedings typically are closed to the public and media, but Moores opened Friday's hearing at the request of The Indianapolis Star.

Requests from child protection officials to discontinue life support for children who are wards of the state are "unusual but not unprecedented," said Jennifer Hubartt, chief legal counsel for the Marion County Department of Child Services.

James W. Payne, director of the state Department of Child Services, called the request "one of those once-every-five-years kind of things" and said this was the first such case since he began overseeing the state's child protection agency in January. Payne, a former juvenile court judge, said he had made similar decisions in cases involving children who were wards of the state during his tenure on the bench. [Judge Moores succeeded Judge Payne on the bench.]

"Nothing could be more emotional, difficult -- just awful," he said. Payne said the situation underscores the important role of parents, who must take responsibility for their children's welfare. "We can't build a system big enough (to save all Indiana children) if parents do not do their jobs," he explained.

The Star story includes a link to IC 16-36-1-5, Indiana's medical consent law.

Posted by Marcia Oddi on Saturday, October 08, 2005
Posted to Ind. Trial Ct. Decisions

Environment - Revamping species act draws fans, foes

"Revamping species act draws fans, foes in area: Business groups see balance; others fear loss of wildlife," is the headline to this story today in the Louisville Courier Journal, by James Bruggers, about "a congressional effort to overhaul the nation's 32-year-old Endangered Species Act." Some quotes:

[Amy Avdevich-Akin] agrees with biologists, environmentalists and some legislators who say the proposed changes, designed to help business and property owners, could doom rare plants and animals.

"I think (political leaders) should take every step they can to protect wildlife," said Avdevich-Akin, whose back yard is certified as wildlife-friendly by the National Wildlife Federation, which also opposes the act's revisions. "Keeping everything in balance is what's important."

It's balance of a different sort that's important to business groups celebrating last week's 229-193 vote by the U.S. House to revamp the 1973 species act, a landmark law passed at the height of the environmental movement.

While the bill's fate in the Senate is uncertain, leaders of business groups in Kentucky and Indiana touted it, saying it addresses the need to protect the environment without slashing companies' bottom lines and property owners' rights. The existing law, they said, has become bogged down in litigation and has not proved effective in helping many species. * * *

The proposed Threatened and Endangered Species Recovery Act would, among other things, prevent the government from establishing "critical habitats" that limit logging, mining and development, and would require payments to property owners impeded by wildlife protections. It represents the largest attempted rewriting of the species act. * * *

The current law's impact in Kentucky and Indiana largely has centered on the Indiana bat, the minnow-like blackside dace and red-cockaded woodpeckers. Mining companies, for example, have had to make concessions such as cutting forests in the winter, when the bats are hibernating in caves.

When the bats emerge, they may find part of their habitat gone, and "they have to go somewhere else … (and) a bat can do that," said Harlan geologist David Howard, adding that the fish cannot -- which sometimes forces mining to move. Indiana bats and the red-cockaded woodpecker have been cited in legal challenges over management of the Daniel Boone National Forest.

A U.S. judge in 1997 temporarily blocked logging in the public forest, citing concerns that the managers were not following their own rules, which was jeopardizing bat habitat. Logging levels have been down since.

Representatives of farm bureaus in Kentucky and Indiana were unable this week to identify any farmer in their state who had lost the use of his or her land because of the endangered species protections but said they were concerned about future conflicts that might arise.

[U.S. Rep. Ben Chandler, D-6th District, the only Kentucky legislator to vote against the bill,] called the bills' property rights provisions costly and dangerous. "The government won't be able to pay," he said, "and the result will be species will cease to exist."

Posted by Marcia Oddi on Saturday, October 08, 2005
Posted to Environment

Ind. Gov't. - Changes in tax abatement law cause concern in Terre Haute

In a story headlined "City officials uneasy over renewal of abatements: Some fear move would shift property tax burden onto other taxpayers," Peter Ciancone of the Terre Haute Tribune-Star reports:

The City Council's approval of an extension of Terre Haute's Urban Enterprise Zone would shift some of the city's property tax burden to other taxpayers, and it's apparent that some city officials are unhappy about the prospect.

The council heard a presentation Thursday night before its sunshine meeting from Gary Malone and Jason Semler of H.J. Umbaugh and Associates, an Indianapolis accounting firm, about the pros and cons of the changes in the zone.

Established in 1993 and renewed for another five years in 2003, the zone used to give tax incentives to businesses within it, primarily a 100 percent abatement of inventory taxes.

The General Assembly voted in 2002 to phase out the inventory tax, but in 2005 added a provision to keep UEZs attractive: Within a UEZ, a business has a 100 percent abatement for 10 years on any taxes assessed on any qualified investment. The 100 percent abatement also applies to any property transferred by sale in the zone, Malone said.

The council, if it approves the UEZ, does not vote on whether the business gets the abatement. It is automatic.

A traditional tax abatement is first approved by the council after a two-month process, after which the taxes are phased in over the term of the abatement. In the proposed UEZ, the abatement is 100 percent over the entire 10-year term.

”I don't like the idea of a 10-year, total tax abatement,“ said Mayor Kevin Burke. Tax abatements still provide some revenue through their term, he said.

Posted by Marcia Oddi on Saturday, October 08, 2005
Posted to Indiana Government

Ind. Gov't. - A different take on Thursday's GUIA meeting

This story today in the Munster (NW Indiana) Times by Elizabeth Theaken has a somewhat different take on Thursday's GUIA meeting than the story yesterday in the Gary Post-Tribune that was quoted in this 10/7/05 ILB entry. Some quotes from today's story:

GARY | The executive board of the Gary Urban Enterprise Association is persevering even as the state tries to freeze its assets.

The board met Thursday, even though the Indiana Economic Development Corp. voted last month not to renew the enterprise group's status.

GUEA Attorney Karen Freeman-Wilson, the former Indiana attorney general, said GUEA has not received formal notification of the state's decision and will continue normal operations until members are notified to do otherwise.

The executive board also is discussing transferring all of GUEA's assets to Urban Development Group, a subsidiary formed by ousted GUEA Executive Director Jojuana Meeks.

It was alleged fiscal improprieties at GUEA during Meeks' tenure that first prompted the state to look into GUEA's management of the Gary Urban Enterprise Zone.

Citing hundreds of thousands of dollars he says were wasted or misappropriated, Indiana Attorney General Steve Carter filed a lawsuit Monday against GUEA in Marion County and was granted a temporary restraining order Tuesday. * * *

Carter said late Friday afternoon he was not surprised the group met on Thursday, but cautioned against members going forward with transferring assets.

"The (temporary restraining order) basically does permit them to carry on ordinary, everyday functions, but I would consider significant transfers of assets to be out of the ordinary and believe they've agreed not to do that as a condition of the (order)," Carter said.

"As far as where the assets wind up, I don't think there is anything wrong with researching the possibilities ... Anything out of the ordinary course of business would be a violation of the order."

Carter said his office has been in contact with the GUEA since the lawsuit and temporary restraining order were filed. Based on those discussions, Carter said he does not "expect any extraordinary transfers to occur."

Freeman-Wilson said she is negotiating with the attorney general's office and believes the office filed the lawsuit under a mistaken impression about the current executive board's work.

Posted by Marcia Oddi on Saturday, October 08, 2005
Posted to Indiana Government

Ind. Econ. Dev. - More on "Mittal to put US headquarters in Chicago Loop"

This ILB entry from Wed., Oct. 5, quoted from a Chesterton Tribune story from the previous day about the Mittal decision to locate its U.S. headquarters in Chicago. Apparently this was a Chesterton Tribune scoop.

Today's (Oct. 8th) Gary Post-Tribune reports:

Mittal Steel USA was the big winner in its search for a company headquarters site, snagging $9.5 million in tax incentives to locate in downtown Chicago.

Illinois officials said during a news conference on Friday that they felt they had to give an attractive offer to beat Indiana, which they said was their biggest competition. But the state of Indiana said it didn’t offer anything to lure the U.S. headquarters of the world’s biggest steelmaker to Northwest Indiana.

The state of Illinois offered Economic Development for a Growing Economy corporate income tax credits over 10 years based on job creation, a grant for construction, renovations, machinery and other infrastructure improvements totaling $7.5 million.

“We’re in competition to get them to come here, and we have to put things on the table to get them to come here,’’ said Jack Lavin, director of the Illinois Department of Commerce and Economic Opportunity. “When we’re in competition, we need to put these investments on the table. We got them to come here.”

In addition, Chicago is providing $2 million from the Central Loop Tax Increment Financing District to help pay for furniture, fixtures and equipment for the new offices. * * *

Tim Sanders, director of the Northwest Indiana office of Indiana Economic Development Corp. earlier told the Post-Tribune that Indiana officials had presented Mittal Steel with an attractive incentive package.

But Sanders later said he was incorrect and that Indiana never offered Mittal a proposal because the company didn’t seem truly interested in putting its headquarters in Indiana.

“We told them that if you’re really thinking about coming to Indiana, we can put together a package that would be difficult to beat,’’ Sanders said. “Right off the bat, they said Chicago was most likely the favorite site. I think the people in Indianapolis handled this as well as they could. I don’t think Mittal was ever serious (about Indiana).” * * *

Sanders said Indiana never made a specific proposal because Mittal needed to notify the state in writing about what it was seeking. “We don’t put together a package without a company outlining their intentions," Sanders said. “We told them if you tell us we have a realistic chance, we’ll put together a good package that will be very difficult to turn down.”

[Louis Schorsch, CEO of Mittal Steel USA] said the presentation from Illinois and Chicago officials was more orchestrated than what the company got from Indiana officials. “They do have good experience for these things in a way that Northwest Indiana doesn’t,” Schorsch said. “We were in deep discussions with the governor of Indiana who was eager to have the facility.”

[More on NW Indiana economic development] The Munster (NW Indiana) Times reports today on that regional economic development "took center stage at a legislative kickoff Friday". Some quotes:
Tim Sanders, director of the Indiana Economic Development Corp.'s southwest region and interim RDA [regional development authority] director, listed four major concerns the RDA has set itself: South Shore commuter rail spurs, a regional bus system, expansion of the Gary/Chicago International Airport and development of the Lake Michigan shoreline.

In a local take, almost two-thirds of respondents to a Chesterton Chamber member survey identified the last item -- creation of a shoreline redevelopment plan -- as the top priority facing the RDA.

Posted by Marcia Oddi on Saturday, October 08, 2005
Posted to Indiana economic development

Ind. Law - "So, when did the Indiana Utility Regulatory Commission become a welfare-assistance agency?"

"So, when did the Indiana Utility Regulatory Commission become a welfare-assistance agency?" is the first line of this editorial today in the Fort Wayne Journal Gazette. The editorial continues:

Well, last year, really, when it backed NIPSCO’s plan to charge 50 cents per customer per month to help low-income families pay for gas. It was a one-year pilot program. Now, NIPSCO wants to bump the surcharge to 65 cents – a 30 percent increase. It may sound heartless, but this plan is just bad public policy.

Under the extension plan proposed by NIPSCO, the 65-cent surcharge, combined with $900,000 from the utility’s coffers, will create a fund of $7.9 million for the Winter Warmth program. Last year, the fund was $5.7 million, with NIPSCO putting in just $200,000. * * *

Hoosiers are known for their frugality, but they’ve also earned a reputation in helping families in a pinch. NIPSCO, a subsidiary of publicly traded NiSource, should’ve asked its customers to volunteer to toss in 50 cents a month to help the poor. Instead, NIPSCO wants to tax its customers to pay for a social welfare program green-lighted by a state board made up of political appointees whose main function is to protect Hoosiers from unfair practices.

Any mandated low-income energy aid program ought to come from the General Assembly, and then only after vigorous debate. Elected officials, the people most accountable to Hoosiers, should review the program and surcharges to determine if they are appropriate.

For background, see this 10/5/05 story from the Munster (NW Indiana) Times, which begins:
NIPSCO has proposed an expansion of its Winter Warmth heat-aid program, but wants its customers to pay the bulk of the cost.

Posted by Marcia Oddi on Saturday, October 08, 2005
Posted to Indiana Government | Indiana Law

Friday, October 07, 2005

Environment - Agriculture stories today

"Changes planned for manure regulations: Commissioners want to change ordinance on confined feeding operations" is the headline to this story today in the Richmond Palladium-Item. Rebecca Helmes writes:

The Wayne County Board of Commissioners would like to make changes to a proposed confined feeding operation ordinance before sending it back to the Wayne County Plan Commission.

Commissioners would like to shorten a minimum setback requirement for manure application from any residence, business, public recreation area, golf course, surface water and public or surface water intake supply structure from 660 feet to 330 feet.

They recommended the change as long as the manure is injected into the ground rather than spread on top of it. Injecting manure into the ground often does not smell as bad as spreading the manure on top of the ground.

The unapproved ordinance, which would require new confined feeding operations to agree to meet particular zoning requirements to receive special exception zoning permits, does not affect the new confined animal feeding operation (CAFO) that the Wayne County Board of Zoning Appeals approved in August. It would, however, apply to all approved CFOs from now on.

The difference between a CFO and CAFO is the number of animals that are kept on the property -- a CAFO has more animals.

The new CAFO at Centerville and Randolph County Line roads is expected to have about 11,200 sows by early 2006.

The Indiana Department of Environmental Management regulates the environmental issues that CFOs bring with them, while the proposed Wayne County zoning requirements regulate the placement of CFOs within the county.

Once the proposed ordinance is approved, any CFO that locates in Wayne County would have to operate according to rules from both IDEM and the county.

"Winchester CAFO up and running" is the headline to a story at Newslink Indiana. It reports:
WINCHESTER, Ind. (NLI) - The Union Go Dairy in Winchester has been open for three weeks. Seven hundred cows are already at the Confined Animal Feeding Operation, and more arrive every day.

Tony Goldstein, manager of the Winchester CAFO, said he's happy about how things have been going. "We're really excited to get things going, and so far I think it's going great," said Goldstein.

Fourteen employees work at the farm. The facility plans to bring in grain from nearby farms to feed the cows. Once all the cows have been hauled in, there will be more than 1,600.

While Goldstein and his employees are happy, some people are not so excited.

People living close to the CAFO have been fighting against it for two years. They are concerned the waste from the cows could leak into the water supply and contaminate it. The farmers are also afraid that pollutants in the air could affect their animals.

Allen Hutchison's farm is less than a half mile from the CAFO and he said when the wind blows just right the smell is almost unbearable.
"Whichever way the wind's blowin', that's the neighbor that's gettin' it," Hutchison said about the smell.

"Ag park debated at Thursday forum" is the headline to a story by Nick Werner in today's Muncie StarPress. Some quotes from the lengthy story:
MUNCIE - About 200 people attended a forum Thursday night to debate a rezoning proposal for farmland near the town of Shideler that would promote agricultural-related industry. Thes tory includes discussions of pollution and health, jobs, location, comprehensive plan, and economic development.

Posted by Marcia Oddi on Friday, October 07, 2005
Posted to Environment | Indiana economic development

Ind. Decisions - Transfer list for week ending October 7, 2005

Here is the Indiana Supreme Court's transfer list for the week ending October 7, 2005. Three cases were granted transfer this week.

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 07, 2005
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending October 7, 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 7, 2005. There are 20 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 07, 2005
Posted to NFP Lists

Law - Michigan Senate wants to block same-sex benefits

"Michigan Senate wants to block same-sex benefits: Nonbinding resolution sent to state Supreme Court" is the headline to an AP story today in the South Bend Tribune. Some quotes:

LANSING -- The state Senate on Thursday approved resolutions urging the Michigan Supreme Court to block public-sector employers, including state government, from providing health insurance to the partners of gay employees until the court makes a final ruling on the issue.

The Republican-controlled Senate voted 22-16, mostly along party lines, to pass two resolutions to prevent taxpayer dollars from being spent on same-sex benefits until the court reaches a final judgment.

The measures are symbolic and do not have the force of law.

"If we're really concerned about not disrupting people's lives, we ought to keep the status quo until the court makes a decision," said Sen. Alan Cropsey, a DeWitt Republican who sponsored the measures. * * *

An Ingham County judge ruled last month that public universities and governments could provide domestic partner benefits without violating a constitutional amendment approved by voters in November.

Democratic Gov. Jennifer Granholm then said she would ask the state Civil Service Commission to approve domestic partner benefits for state employees. The benefits had been included in new labor contracts, but Granholm put them on hold while waiting for a court ruling. * * *

A measure passed last year made the union between a man and a woman the only agreement recognized as a marriage "or similar union for any purpose." Those six words led to a fight over benefits for gay couples.

Republican Attorney General Mike Cox issued an opinion in March saying the measure bars the city of Kalamazoo from providing domestic partner benefits in future contracts. But 21 gay couples who work for Kalamazoo, universities and the state filed a lawsuit challenging Cox's interpretation.

Cox plans to appeal the Ingham County judge's ruling, prompting Senate Republicans to push the two resolutions asking the state's highest court to "take whatever steps are necessary to maintain the status quo" until it rules.

Sen. Gilda Jacobs, D-Huntington Woods, urged her colleagues Thursday to vote against the measures. "We should be celebrating this great state's diversity, not discriminating against certain people," Jacobs said.

This 4/4/05 ILB entry is a good background piece to this story.

[More] Here is a CNN story from 9/28/05 on the Ingram County Michigan trial judge's opinion. Here is a link to the legal documents in the case, National Pride At Work v. Granholm. However, this does not seem to include the opinion itself.

Here is a scanned version of circuit Judge Joyce Draganchuk's 9/27/05 opinion in the case.

Posted by Marcia Oddi on Friday, October 07, 2005
Posted to General Law Related

Law - NY Times writes about lawyer blogs

Thanks to How Appealing for spotting this NY Times story this morning about lawyer blogs. Some quotes:

Inside every lawyer, it is said, there is a brilliant writer, held back by professional ambition or by fear of failure. Nowhere is that truism more evident than in the explosion of online blogs by, for and about lawyers. * * *

The law has always fascinated lawyers and nonlawyers alike, which may explain some of the sites' popularity.

"Lawyers tend to have something credible to say about an important subject," said Eugene Volokh, a law professor at the University of California, Los Angeles, who nevertheless expressed skepticism about Blogads' survey results. "Lawyers have been educated about the legal system, which people are interested in." * * *

The proliferation of law blogs is helpful, according to Denise M. Howell, who works at Reed Smith in Los Angeles and who claims credit for coining the term "blawg." She said the blogs demystified the law without costing outrageous sums; led to more open, frequent and occasionally informed discussions of politics, law and occasionally morality; and helped forge links between practicing lawyers, law professors, law students and the real world. "Blogs break down the barriers," she added.

Posted by Marcia Oddi on Friday, October 07, 2005
Posted to General Law Related

Environment - National stories on brownfields, bird flu

"New growth sprouts on USA's brownfields" is the headline to this story today in USAToday. The lengthy piece begins:

BALA CYNWYD, Pa. — This suburban enclave of old money and lavish estates along Philadelphia's Main Line hasn't allowed condominiums and apartments in its midst for more than 20 years.

Today, an eight-story luxury condo building is rising on the site of an old Cadillac dealership on Presidential Boulevard — land that once was contaminated enough with pollutants to qualify as what the government and developers call a brownfield.

Buyers are lining up to pay up to $2.2 million to live there. And local officials are greeting the Corinthian condos and developer Brian O'Neill with open arms. Why?

"We're one of the wealthiest communities in Pennsylvania, but we've run out of real estate," says Jim Ettelson, a commissioner in the township that includes Bala Cynwyd. "We have to tear down or use things that don't exist anymore. That means old buildings and old industrial sites."

From the tony suburbs of Philadelphia to middle-class cities and inner-city neighborhoods in New Jersey, Illinois and California, developers are snapping up abandoned mills, factories, landfills, gas stations and quarries and putting up condos, apartments, town houses and single-family homes.

They're willing to clean up industrial and commercial sites contaminated with toxic and hazardous materials to get their hands on land in prime locations. And consumers increasingly are willing to pay top dollar to live on land once not fit for habitation.

The article's statement that "The sudden allure of sites that couldn't be given away a decade ago is driven by:" is followed by sections labeled (1) the housing boom, (2) demographic changes, (3) growth controls, (4) less red tapes, more money, (5) health worries fade, and (6) communities buy in.

The Washington Post has a front-page story today titled "Region's Poultry Farms on High Alert for Virus." It begins:

There were 561 million chickens -- broilers, roasters and Cornish hens -- raised last year on the Delmarva Peninsula, or, looked at another way, 468 chickens for every person on the Eastern Shore. Some of the biggest names in chicken -- Perdue Farms, Tyson Foods -- operate here alongside 5,500 chicken houses in the $1.7 billion industry.

All of which makes the spread of avian flu in Asia more than just some vague fear about what's happening half a world away, and is why Jenny Rhodes won't let you on her farm.

"No admittance. Nobody goes down to the chicken houses unless it's ourselves or our serviceman," said Rhodes, who raises 80,000 chickens on her farm in Queen Anne's County, Md. "For us, biosecurity is something we deal with every day."

In recent years, poultry farmers on the Eastern Shore and in Virginia's Shenandoah Valley have been struck by outbreaks of avian flu -- albeit a less deadly strain than the one that has killed 140 million birds and 60 people in Asia in the past two years -- and industry leaders say they have ramped up security to protect their poultry.

A drive through the fields of Queen Anne's County reveals signs on the low-slung chicken houses calling out the warning: "Restricted. No Admittance. Poultry Biosecurity in Place." Farmers change clothes before moving from their homes to their chicken houses. Their employees walk through disinfectant baths to kill germs on boots heading in and out. Farm supply stores spray the tires of feed trucks with bleach.

Agriculture officials are fitting poultry workers with protective suits and masks in case of an outbreak, and they are running simulations of how to respond if the virus spreads beyond state boundaries and -- the worst fear -- starts infecting people.

"The situation that we're all concerned about is the possibility of a pandemic. There are reasons to be cautious about this and not ignore it," said Maryland state medical epidemiologist David Blythe, stressing that the risk is remote. "I think the Eastern Shore is probably further along than anywhere else in the country for preparation for this type of event . . . but we have to remain vigilant."

Posted by Marcia Oddi on Friday, October 07, 2005
Posted to Environment

Law - More on Dan Coats appointment to shepherd Miers' nomination

"Staunch conservative to serve as Miers' guide" is the headline to this story today in USAToday. Headlined "Staunch conservative to serve as Miers' guide," the story begins:

As Supreme Court nominee Harriet Miers continued to woo senators on the Republican right Thursday, President Bush tapped a staunchly conservative former senator to help shepherd her nomination through the confirmation process.
Dan Coats, an Indiana Republican who was an outspoken opponent of abortion and gays in the military during his 10 years in the Senate, will be escorting Miers to meetings with senators and "serving as a public advocate for her," White House spokesman Scott McClellan said.

Coats, who retired in 1999 and most recently served as Bush's ambassador to Germany, was close to Sen. Trent Lott of Mississippi, one of the conservatives who has raised questions about Miers' qualifications. "He's well-known and well-liked by many members of the Senate," said Sen. Dick Durbin of Illinois, the deputy Democratic leader.

Posted by Marcia Oddi on Friday, October 07, 2005
Posted to General Law Related

Ind. Gov't. - GUEA says it will help state with dissolution

"GUEA says it will help state with dissolution" is the headline to this story today in the Gary Post-Tribune. It begins:

Members of the Gary Urban Enterprise Association board said they will work with state Attorney General Steve Carter to break up the non-profit.

In a lawsuit filed Monday, Carter asked to have state officials oversee the dissolution of GUEA’s $10 million in assets because of an alleged pattern of corruption at the non-profit.

GUEA attorney Karen Freeman-Wilson told board members Thursday the group would work with Carter’s office, and said the lawsuit was based on actions taken under former director Jojuana L. Meeks and a board that has since been replaced.

“(The suit) was premised on a number of things done prior to this board and this administration,” Freeman-Wilson said.

A Marion County judge this week issued a 10-day restraining order that prevents GUEA leaders from selling or transferring any assets. The state Economic Development Commission last month denied GUEA’s request to renew the group’s enterprise zone status, which is set to expire this year. A hearing to decided on a permanent injunction is scheduled for Wednesday.

Freeman-Wilson said the restraining order allows GUEA to continue its day-to-day operations without involving Carter’s office. She said GUEA would be willing to have state oversight, but would like to avoid Carter’s suggestion of assigning a paid receiver to manage the break-up.

For background, see this ILB entry from 10/5/05.

Posted by Marcia Oddi on Friday, October 07, 2005
Posted to Indiana Government

Environment - Indiana wetlands in the news today

The Terre Haute TribuneStar reports:

About $4.1 million in federal and private funds will be dedicated to a project that will restore Wabash River wetlands in six west-central Indiana counties. The wetlands project will restore wildlife habitat and eventually help reduce Wabash River flooding, officials say. It's called the Wabash River Floodplain Corridor Project and involves Warren, Fountain, Parke, Vermillion, Vigo and Sullivan counties.

On Tuesday, during a "signing ceremony" in Vermillion County, officials announced that $1 million in funding will come from the 2005 Wetlands Reserve Enhancement Program.

Only nine programs throughout the country received the federal Wetlands Reserve Enhancement Program funding, with two of those located in Indiana. The Nature Conservancy will provide an additional $330,000.

"Cemetery’s plan to use wetlands draws fire" is the headline to this story today in the Gary Post-Tribune. Some quotes:
HOBART — Land conservationists are urging the federal government to reject a plan that would turn 41 acres of wetlands into a final resting place for the dearly departed.

If the wetlands are filled in, Tom Anderson, executive director of the Save the Dunes Council, said Hobart will experience increased flooding, a degradation of water quality and a loss of wildlife habitats in the Deep River watershed.

The Save the Dunes Council also questions why an official of the federal Natural Resource Conservation Service is apparently serving as an agent for the cemetery that wants to fill in the wetlands.

“We don’t understand how a federal employee charged with protecting natural resources would be part of an effort to destroy important wetlands in the Deep River watershed,” Anderson said. * * *

Lynn Duerod, spokeswoman for the Corps’ Detroit office, said the cemetery’s application to fill in such a large area of wetlands is unusual.

She said the decision whether to grant the permit will be based in part on public comment. The decision will also reflect national concerns for both the protection and use of natural resources. The public comment period on the cemetery’s permit request ends Oct. 29.

“This is a huge area that we’re talking about,” said Anderson, pointing out that wetlands are connected and filling one would adversely affect the Hobart Marsh, an area being protected to mitigate for the Little Calumet flood control project.

The Shirley Heinze Environment Fund owns a 60-acre wetlands preserve adjacent to the cemetery. In the past, the group said the best and highest use of the neighboring wetlands would be achieved by leaving it in its natural state.

Posted by Marcia Oddi on Friday, October 07, 2005
Posted to Environment

Law - Fingerprint matches potentially fallible

Sharon Begley's "Science Journal" column on page B1 of today's Wall Street Journal (paid subscription only) is a very interesting review of the fallibility of fingerprint matches and, in fact, much of forensic science.

Posted by Marcia Oddi on Friday, October 07, 2005
Posted to General Law Related

Ind. Courts - Wal-Mart no longer available, Randolph County Commissioners learn

Updating this ILB entry from Tuesday, quoting from a Muncie StarPress report that Randolph County wasagain looking to buy old Wal-Mart, Joy Leiker of the StarPress reports today that the Commissioners have missed the chance to buy the building:

Two days after the Randolph County Board of Commissioners decided to bid on the 54,962-square-foot building at 970 E. Washington St., Commissioner Drew Wright learned the vacant store was no longer available.

Wal-Mart spokesman Dan Fogleman confirmed Thursday that the company has entered into a contract with a developer, and said the nation's largest retailer is "no longer accepting other offers" for the building in Winchester. The deal should be finalized in the next 60-90 days. * * *

The empty Wal-Mart store has been a big part of the ongoing conversation related to the Randolph County Courthouse, especially since the county commission voted in June to tear it down. It's the only building in Winchester big enough to hold every office, file and employee currently in the courthouse, and because it's a one-story structure, outfitting it for even temporary use is believed to be easier, and perhaps less expensive, than any other option - like utilizing several buildings in downtown Winchester.

Posted by Marcia Oddi on Friday, October 07, 2005
Posted to Indiana Courts

Ind. Law - 'Oprah' helps capture Indiana fugitive

Couldn't resist this story. Maureen Hayden of the Evansville Courier& Press reports:

Never underestimate the power of "Oprah." On Tuesday, the talk show host flashed the picture of a Posey County, Ind., fugitive on screen, offered a $100,000 reward for his capture, and 48 hours later, Oprah Winfrey got her man.

An "Oprah" viewer in Fargo, N.D., recognized William Carl Davis, 33, and told a friend, who then tipped off FBI agents in Fargo.

Davis, a convicted child molester wanted in both Vanderburgh and Posey counties, was arrested without incident Thursday afternoon by the Fargo police and lodged in the Cass County, N.D., jail. * * *

FBI spokeswoman Wendy Osborne said Davis had been living in an apartment under the name Mark Davis and had a driver's license in that name.

Osborne, an Indianapolis agent, had worked with Evansville FBI agent Marty Williams to get Davis profiled on "Oprah," along with seven other fugitives. She was impressed with the power of "Oprah." Osborne said she had been working with "America's Most Wanted" for the last two weeks to try to catch another Indiana fugitive, but all the leads generated by that show had turned up empty.

"But we put this guy on 'Oprah' and in less than 48 hours, we got him. It did the trick."

Posted by Marcia Oddi on Friday, October 07, 2005
Posted to Indiana Law

Ind. Courts - Morgan County workers' return to courthouse up in the air

A brief item in today's Indianapolis Star reports:

Martinsville -- It remains unclear when Morgan County Courthouse employees will be able to move out of the county's administration building and back into the courthouse they were forced to vacate more than a year ago. * * * County Commissioner Norman Voyles said Dial One Hoosier, which renovated the air-handling system, is done but has continued to test to make sure equipment is running properly.
The ILB entry dated 11/2/04 quotes from a story reporting "Morgan County workers will stay in temporary quarters inside the administration building for a couple more months as county leaders attempt to clear the air in the courthouse."

Posted by Marcia Oddi on Friday, October 07, 2005
Posted to Indiana Courts

Ind. Law - Commentary on Senator Miller's proposal to limit procreation assistance continues

"Regulate pregnancy? Idea shelved but not dead" is the headline to Matthew Tully's column today in the Indianapolis Star. The piece concludes:

Sen. Vi Simpson, D-Ellettsville, put it well. "This is state-controlled pregnancy," she said. Miller might have a vision of perfect families, Simpson said, but her plan would do nothing to stop the many unfit parents who have children through traditional methods.

Simpson also noted that someone heading to a fertility clinic likely has prepared hard for parenthood -- and doesn't need the state hovering over them. "There's a lot more thought that goes into assisted reproduction procedures than there is to sexual intercourse," she said.

Along with the proposal's effect on single, gay and lesbian Hoosiers, married couples would have to suffer through "an assessment," and obtain a certificate, before gaining access to donor eggs or sperm.

The proposal reads like "1984." The "assessment" covers things like values, religion, income, personality and physical descriptions, and much more.
Within a few hours, Miller gave up. She withdrew her plan because "the issue has become more complex than anticipated."

So why write about it now? Here's why. Miller has not ruled out resurrecting the idea when the General Assembly meets in January.

For background, start with this 10/5/05 ILB entry.

Posted by Marcia Oddi on Friday, October 07, 2005
Posted to Indiana Law

Thursday, October 06, 2005

Tech. & Gov't. - Two stories today about technology impacting small towns

BioTown, USA. Remember little Reynolds, Indiana? Population 500. (See this most recent ILB entry, from 9/14/05 and this one from 9/13/05.) "Questions linger over BioTown project" is the headline to this story today, by Abby Lietz, in the Monticello Herald Journal. Some quotes:

It’s a waiting game right now for residents in the recently-christened BioTown, USA as efforts to transition the town’s energy needs to biorenewable fuels formulate behind the scenes. According to Reynolds Town Council President Charlie VanVoorst, the next two months are likely to see the implementation of phase one of the three-phase plan for BioTown as announced last month by Gov. Mitch Daniels and members of the state department of agriculture. * * *

VanVoorst explained that there is little presently known about how the transition will take place, what it will cost and specific details, but he assured town residents present at Tuesday night’s council meeting that General Motors — who is partnering with the state on the BioTown initiative — is committed to helping Reynolds achieve the goal set before them.

“I believe (GM) are going to make it so Reynolds is able to use this fuel - I really do,” VanVoorst said. “They’re really trying to make this work for us, make it affordable for the people of Reynolds.”

Remote Chinese village loses hyperline to future. This amazing story, written by Ching-Ching Ni, in the LA Times today, comes even closer to having mythic qualities. It begins:
YELLOW SHEEP RIVER, China — This village on the edge of the Gobi desert entered the 21st century much as it had the previous one, with yellow sand blanketing the mountains and poor farmers sharing their mud huts with cows, donkeys and pigs.

No homes had running water. No shops sold clothes, just bundles of fabric to be sewn into shirts and pants. Donkey carts plied the dusty main street, rarely troubled by the rumble of a motor.

No one in this forgotten section of northwestern China seemed to realize that the nation's east coast was booming or that dot-coms were changing the world. But then, out of the blue, came an idea — and a multimillionaire — that promised to bring prosperity here.

High-tech entrepreneur Sayling Wen heard about the village and decided that by harnessing the power of computers, he could beam its 30,000 inhabitants into the Information Age economy.

Never mind that the Taiwanese tycoon had never laid eyes on the place. He would turn Yellow Sheep River into China's first "Internet village."

"The plan seemed unthinkable, like jade falling from the sky," said local Communist Party secretary Zhang Xusheng.

Wen donated 100 new computers and arranged for teachers to be trained. He believed that by teaching computer basics to schoolkids, he could quickly develop a labor force to perform simple tasks for Western high-tech firms looking to outsource work.

Next he began building a $50-million, 140-room hotel and convention center in the village, with high-speed Internet connections, state-of-the-art meeting rooms, swimming pool, sauna and even a stable for horse- and camel-back riding.

Wen planned to have villagers staff the hotel, and would invite tech-savvy workers from China's east to train others. High-tech executives could use it as an exotic conference locale, and meet Yellow Sheep River's labor pool. The project would spawn more development.

Just as things were looking up, Wen dropped dead.

Posted by Marcia Oddi on Thursday, October 06, 2005
Posted to General News | Indiana Government | Indiana economic development

Law - Dan Coats to work as nominee Miers' adviser

An AP story just posted on the Indianapolis Star site reports:

President Bush on Thursday tapped former Indiana Republican Sen. Dan Coats to help shepherd Supreme Court nominee Harriet Miers through the Senate's confirmation process.

Coats, who resigned in February after nearly four years as the U.S. ambassador to Germany, will fill an unpaid role similar to that of former Sen. Fred Thompson during Chief Justice John Roberts' confirmation proceedings. * * *

As a senator, Coats pushed legislation to restrict abortion, tried to eliminate the National Endowment for the Arts because of grants it made to artists he said mocked God, and led the opposition to allowing gays in the military.

Posted by Marcia Oddi on Thursday, October 06, 2005
Posted to General Law Related

Environment - State says dirt from stadium site poses no threat [Updated]

The Indianapolis Star website has a report this afternoon by Michelle McNeil headlined "State says dirt from stadium site poses no threat." It begins:

The Indiana Department of Environmental Management says dirt from the downtown stadium construction site that will be trucked to a Johnson County gravel pit poses no public health threat.
The soil does contain arsenic, which is a naturally occurring compound found in most soil, but not at dangerous levels, according to Bruce Palin, assistant commissioner of IDEM"s Office of Land Quality. Environmental testing of the soil did find some high levels of arsenic, but that will be hauled to a landfill that can safely accommodate contaminants, Palin said today.
[Updated 10/7/05] Here is today's Star's somewhat expanded coverage.

Posted by Marcia Oddi on Thursday, October 06, 2005
Posted to Environment

Law - Mass. SJC hears challenges on same-sex marriage ban for nonresidents [Updated]

The story today, in the Boston Globe, reports that the right of out-of-state residents to marry in Massachusetts will be:

the subject of arguments today in the Supreme Judicial Court, which legalized gay marriage in Massachusetts in a landmark November 2003 ruling.

At issue is a 1913 law that forbade out-of-state couples from marrying if their union would not be legally recognized in their own state.

As same-sex marriage became legal on May 17, 2004, Governor Mitt Romney ordered city and town clerks to enforce the law and wrote to other governors to warn that out-of-state couples would not be allowed to marry in Massachusetts.

The case is SJC-09436 - In re: Sandra Cote-Whitaker & others v. Department of Public Health & others and Clerk of the Town of Provincetown & others v. Attorney General & others. According to the Court's amicus anouncement of 3/28/05:
These consolidated cases present the issues, among others, whether the Commonwealth's application of G. L. c. 207, §§ 11-12, to deny marriage licenses to non-resident same-sex couples violates Massachusetts law and the Privileges and Immunities Clause of the United States Constitution; whether the enforcement scheme is constitutional.
Here is the case docket. Here is the law, c. 207, section 11 and section 12.

[More] Here, thanks to How Appealing, is a new AP story written after the oral arguments. Some quotes:

BOSTON (AP) -- In a case closely watched across the country, the court that made Massachusetts the first state to legalize gay marriage was asked Thursday to decide whether same-sex couples from out-of-state can tie the knot here, too.

At issue before Massachusetts' highest court was a 1913 state law that says that out-of-state couples cannot get married in Massachusetts if their home states do not recognize such unions. Republican Gov. Mitt Romney has invoked the law to prevent out-of-state gay couples from getting married here. * * *

Michele Granda, a gay-rights lawyer for the couples, argued before the high court Thursday that the 1913 law "sat on the shelf" unused for decades until it was "dusted off" by the governor.

Granda said the high court, in its historic ruling legalizing gay marriage, found that under the Massachusetts Constitution, same-sex couples had the same right to marry as heterosexual couples.

"Nothing in (that ruling) says that our officials can discriminate simply because officials in other states discriminate," Granda told the six-judge panel. * * *

After same-sex marriage became legal in May 2004, Romney ordered city and town clerks to enforce the 1913 law and wrote to every other governor in the nation that out-of-state gay couples would not be allowed to marry in Massachusetts. A few communities initially defied the governor but eventually complied.

[Updated 10/7/05] Today's Boston Globe provides an account of yesterday's oral arguments and the possible implications. Some quotes:
In a case that could intensify the fierce debate about same-sex marriage in the United States, the Supreme Judicial Court heard arguments yesterday in a challenge to a 1913 state law that the Commonwealth has used to block out-of-state gay couples from marrying here.

A lawyer for eight lesbian and gay couples from outside Massachusetts told the state's highest court that the Romney administration dusted off a law that had ''sat on the shelf unused for decades" in a blatantly discriminatory and unconstitutional ploy.

"The Commonwealth turned on a dime" only days after gay marriage became legal on May 17, 2004, when it began invoking an obscure 48-word law that says Massachusetts cannot marry an out-of-state couple if their marriage would be void in their home state, said Michele E. Granda, a lawyer for Gay & Lesbian Advocates & Defenders.

Posted by Marcia Oddi on Thursday, October 06, 2005
Posted to General Law Related

Law - Court rules apartments must be fixed to comply with disabilities act

"Court rules apartments must be fixed to comply with disabilities act" was the headline to a story Monday in the Detroit Free Press. Some quotes:

A Farmington Hills apartment developer and several Michigan architectural firms have agreed to retrofit 5,400 ground-floor apartments in 49 complexes in Michigan and six other states to make them handicap accessible.

Edward Rose & Associates of Farmington Hills and several architectural firms agreed to retrofit the apartments under a lawsuit settlement approved Friday by U.S. District Judge Victoria Roberts in Detroit.

Besides agreeing to retrofit the apartments, the companies agreed to build future complexes so they comply with the federal Americans with Disabilities Act, which prohibits discrimination in public accommodations.

The settlement resolves two lawsuits filed in federal courts in Detroit and South Bend, Ind., by the Department of Justice Civil Rights Division. The defendants included Edward Rose and its affiliate companies, which build and operate complexes, and several architectural firms.

The complexes are located in metro Detroit, Grand Rapids, Kalamazoo and Indiana, Illinois, Nebraska, Ohio, Virginia and Wisconsin.

The companies also agreed to set up a $950,000 fund to compensate former and present tenants for discrimination resulting from the design of the apartments and agreed to pay a $110,000 civil penalty.

The South Bend Tribune has a story today about the settlement. Some quotes:
The U.S. Department of Justice reached a settlement with developers and architects in the case, including Edward Rose & Associates, which has offices and affiliate companies in Indiana and Michigan.

Many apartment complexes developed and designed by these companies were built locally, including: Hurwich Farms Apartments in South Bend; Indian Lakes Apartments and Autumn Lakes Apartments in Mishawaka; and Arbor Lakes and North Pointe Apartments in Elkhart.

The Department of Justice's press release about the settlement is quoted here, in the Empire Journal.

Posted by Marcia Oddi on Thursday, October 06, 2005
Posted to General Law Related

Environment - Transfer station proposals in news

The Lafayette Cournal&Courier reports:

The ordinance committee of the area plan commission recommended Wednesday a measure that would tighten the rules governing trash transfer stations.

If adopted by the county area plan commission and the Lafayette City Council, the measure would require there be at least 2,000 feet between the six-foot-high fence required to surround such stations and any residences, schools, churches or other places of assembly in the city.

The addition of this measure could prohibit two companies with proposals already on the table from building trash transfer stations within Lafayette. * * *

Mark Palmer, an attorney for Waste Management, protested against the recommended ordinance at the meeting Wednesday. He charged that the committee members and the staff of the APC were acting out of an irrational revulsion to the idea of a transfer station, rather than according to the facts.

"I haven't seen a shred of empirical evidence to support the staff's recommendation of 2,000 feet," he said, adding that it should be left to the Indiana Department of Environmental Management to regulate trash transfer stations.

The LaPorte Argus-Herald ran a story yesterday headlined "Group says waste transfer station will affect tourism at national lakeshore." A quote:
Great Lakes Transfer LLC has filed an application to build the waste transfer station along County Line Road. The Indiana Department of Environmental Management held a public hearing last week and is expected to make a decision on the application in about two months. The deadline to submit concerns to IDEM is next week. Melessia Downham, with IDEM, said she has received hundreds of comments about the transfer facility.
Another quote:
Residents Against Trash In Our Neighborhoods Alliance — claimed at a public meeting last week that a proposed waste transfer facility at 5535 N. County Line Road would hurt tourism in LaPorte County.

“The fact that you’re going to have trash trucks passing in front of the entrance to Mount Baldy — what will eventually be the east entrance to the park — how many people want to drive behind a trash truck on their vacation? I wouldn’t,” said Ted Cudney, co-founder of RATIONAL. “People don’t want to associate with that.”

Posted by Marcia Oddi on Thursday, October 06, 2005
Posted to Environment | Indiana Government

Ind. Law - Indiana Supreme Court Legal History Series

A new Supreme Court-sponsored lecture series aimed at addressing legal topics of current interest to lawyers, judges, educators, and citizens will kick off on Friday, Oct. 14th at 2 p.m. in the Indiana Supreme Court chambers. Called "Accessing Indian's Legal Past," one hour of free Continuing Legal Education credit has been approved, which also qualifies for credit for newly admitted attorneys. More:

Descendants of Mary Clark, a black woman who played a key role in the Indiana Supreme Court’s 19th century decisions regarding slavery, will tell her dramatic story. * * * Douglas Fivecoat, the editor of a new biography on Isaac Blackford, will provide insights on the longest serving judge of the Indiana Supreme Court and Indiana’s first Speaker of the House. His remarks will cover Blackford both as a jurist and as a prominent participant in Indiana’s formative years. Vicki Casteel, from the Indiana State Archives, will demonstrate a new database that for the first time allows electronic searches for Indiana Supreme Court cases from 1816 to approximately 1862—covering Blackford’s entire career on the Court. The final panelists, Ethel McCane and Eunice Trotter, are direct descendants of Mary Clark. In re Clark is one of the most important pre-Civil War cases heard by the Court. In Clark, the Court struck down indentures binding Mary Clark, a black woman, to a white man.

Posted by Marcia Oddi on Thursday, October 06, 2005
Posted to Indiana Law

Environment - Insurers concerned about climate change

"A New Worry for Insurers: Firms Looking at Whether Climate Change Could Affect Their Bottom Lines" was the headline to a story yesterday in the Washington Post. It begins:

The devastation and cost of Hurricane Katrina provided a new hook for a faction of the insurance industry that is trying to raise public awareness of global warming and push the topic onto the political agenda.

Some of the industry's largest companies have sided with environmental groups in recent years to argue that global warming exists and that man-made causes are adding to the severity and cost of natural catastrophes.

Although no insurer has cited global warming's increased risks as a reason for raising rates, some are funding their own research on the topic and, in the political realm, are supporting measures to reduce emissions.

Posted by Marcia Oddi on Thursday, October 06, 2005
Posted to Environment

Ind. Gov't. - Porter County considers digitizing records

The Gary Post-Tribune reports today:

VALPARAISO — Paperwork and documents are piling up in the Porter County Administration Center, and space for boxes of filings is running out.

Digitizing the records could be the answer, but some county officials are not sure what paperwork can be completely dispensed with after digitization, and what has to be kept. * * *

In a meeting of Porter County commissioners and Porter County council members on Wednesday night, officials discussed solutions.

Earlier in the day, Commissioner President Robert Harper said computerized records are a possibility, as are microfilming documents.

I looked back for other ILB entires and found: "Delaware County records available online" from 8/11/05; and "County finishes first digital step to save records", a story about Allen County from 4/1/05.

Posted by Marcia Oddi on Thursday, October 06, 2005
Posted to Indiana Government

Ind. Law - Federal trial over whether communities have right to restrict new medical centers

"A turf war over medical care: Federal judge to decide whether communities have right to restrict new medical centers" is the headline to a lengthy and informative story today by Josh Duke in the Indianapolis Star. Some quotes:

Whether hospital companies such as St. Francis should be allowed to build ERs to serve patients in Mooresville -- or anywhere else, for that matter -- without government restrictions was the focus of a trial this week in U.S. District Judge David F. Hamilton's courtroom in Indianapolis.

St. Francis went to court after Morgan County imposed a temporary moratorium on the construction of new medical facilities within its borders as a way of ensuring the financial health of its county-run hospital, Morgan Hospital & Medical Center in Martinsville. St. Francis thinks the restriction stifles competition, preventing it from delivering services to patients who should be able to find care close to home.

Hamilton's decision, expected soon, could have statewide, if not national, implications. At least five other Indiana counties have adopted similar restrictions. Lacking any specific state guidelines, these counties have chosen to either prevent construction through their own moratoriums or forced health-care businesses to obtain local approval through a "certificate of need" process before they begin construction. * * *

The moratorium in Morgan County, approved in April, bans construction of any new health-care facilities until Dec. 31. The measure also gave Morgan County Commissioners the power to rule on any future requests for new health-care facilities after the moratorium expires. Under the county ordinance, any business wanting to build a new health-care facility would have to prove the new service is needed within the county and that other health-care providers are not already adequately serving the community's needs. * * *

Morgan County Commissioner Jeff Quyle said he considered the ban a way to gain local control of what he views as an unregulated market. Neighboring states Kentucky and Illinois have certificate-of-need programs on their books. Under pressure from hospitals demanding greater flexibility to compete, Indiana became one of 13 states without such a law when it repealed the legislation in the mid-1980s. Under that law, a certificate of need for construction was awarded only if the overall occupancy rate of existing facilities in a county was greater than 90 percent.

Most states had imposed the restrictions to hold down costs by limiting duplicative services at hospitals in the same area. States required hospitals and other institutions to demonstrate a need in the community before expanding services such as cardiac surgery and organ transplants. * * *

Clark, Floyd and Harrison counties in the southern part of the state, Porter County up north and Hancock County have passed similar ordinances -- and encountered some of the legal battles seen in Morgan County.
A group of Louisville-based doctors from the Kentuckiana Medical Center has filed a lawsuit challenging Clark and Floyd counties' certificate-of-need ordinances . The group wants to build an acute-care hospital with an emergency room in Indiana. * * *

The Kentuckiana Medical Center lawsuit will go before Judge Sarah Evans Barker in federal court in Indianapolis on Nov. 3. Its success could hinge on Hamilton's ruling in the Morgan County dispute because of the cases' similarities.

Posted by Marcia Oddi on Thursday, October 06, 2005
Posted to Indiana Law

Law- "Kelo" eminent domain decision to be tested in Philadelphia case

Law.com reports today:

In a case that promises to test the limits of the U.S. Supreme Court's controversial June decision in Kelo v. City of New London, the city of Philadelphia has been hit with a federal civil rights suit brought by landowners who claim the city illegally used its powers of eminent domain to take about four acres of land just to create a driveway for a new 11-acre FedEx facility.

For the landowners -- the heirs of the late Morris Stein -- the federal suit is just the latest chapter in an ongoing battle that began in 2001 when the city's Redevelopment Authority condemned five parcels of land the family had owned since 1987.

The parcels of land, which are located near 36th Street and Grays Ferry Avenue, are zoned "least restricted." At the time, the Stein family was using the land for several purposes, including storing mountains of rock salt and rental of a billboard. A portion of the land was also leased to Waste Management Inc.

When the RDA took the land, it offered less than $160,000 in compensation. The owners contested the amount and their case was heard by the city's Board of Viewers, a three-member panel that ultimately concluded that the landowners should be paid more than $1 million. Both the city and the landowners appealed that decision, and the dispute about the value of the land is set to go to trial before a jury on Oct. 28 in the Philadelphia Court of Common Pleas. * * *

But the Stein family isn't waiting for the outcome of the Oct. 28 trial. In a tactic that significantly raises the stakes, the family filed a federal civil rights suit last week that accuses the city and the RDA of violating its rights under the U.S. Constitution, alleging the condemnation of the land was illegal. * * *

The suit alleges that the RDA's taking of the land was illegal because it was done "solely to benefit" FedEx. It seeks an order requiring the city to return the land to Down Under.

At first blush, that allegation might seem to be at odds with the U.S. Supreme Court's decision in Kelo, which upheld the use of eminent domain to seize private property for economic development.

But in an interview, French said Kelo actually supports the Stein family's claim because the high court's 5-4 ruling upheld the taking of private property for another private use only when the decision is the result of a carefully developed economic plan.

In the majority opinion in Kelo, Justice John Paul Stevens found that the Fifth Amendment allows government to take private property for "public use," but that it is up to local governments, by and large, to define that term.

Ruling against the landowners, Stevens found that a city's carefully formulated economic development plan is entitled to deference -- even if it mainly benefits private entities.

In the Stein family's case, French said, there was no such plan in place. Instead, she said, the land was taken from them simply to benefit FedEx so that its trucks could enter and exit its new facility directly from Grays Ferry Avenue and not from 36th Street or Wharton Street.

Posted by Marcia Oddi on Thursday, October 06, 2005
Posted to General Law Related

Ind. courts - Translators kept busy in Clark, Floyd courtrooms

"Translators kept busy in Clark, Floyd courtrooms: Hispanic population increases caseload" is the headline to a story by Alex Davis today in the Louisville Courier Journal. Some quotes:

The number of court cases requiring Spanish translators has tripled over the past three years in Clark County, reflecting its growing Hispanic population.

Some judges are thinking about posting courtroom signs in Spanish, and attorneys with bilingual skills are attracting new clients. * * *

The number of Clarksville cases involving Spanish speakers has burgeoned from about 20 per month three years ago to about 75 per month now. * * *

Clarksville town judge Joe Weber said Spanish speakers first started appearing in the mid-1990s and now account for about 5 percent of his entire caseload.

Most are respectful of the law, Weber said, but because some are in the country illegally, they get into trouble because they can't obtain a driver's license.

That's also the case in Clark Superior Court, where Judge Steve Fleece said traffic infractions and suspended-license cases for otherwise law-abiding Hispanic immigrants are costing the court "quite a lot of money," although he said he didn't have figures.

Fleece said the county's judges have tried to group cases that require translation services. Most are handled by Ramona Sharp, a freelance interpreter from Louisville who works about 15 hours a week in Clark's judicial system.

Sharp, who also works in U.S. District Court in New Albany, said her workload in Southern Indiana has tripled over the past three years. Most of the cases involve Hispanic men who are living in Charlestown or Clarksville, she said.

Yesterday the Indiana Supreme Court announced (see entire statement here):
The Indiana Supreme Court has dedicated $25,000 to provide Indiana courts with foreign language interpretation by telephone for less regionally familiar languages, Chief Justice Randall T. Shepard announced today.

“The diversity of language in our state's population has created difficult challenges for our courts. Increasingly, Indiana trial judges are faced with needing interpreter services promptly for many foreign languages. Of the thirty-six counties who sought assistance this year under the Court Interpreter Grant Program, fifteen court systems needed interpreter services for languages other than Spanish or sign language. These courts reported interpretation needs for twenty-six other languages ranging from Arabic to Punjabi to Urdu. While much of our current effort focuses on Spanish interpreting, there is obviously need for attention to speakers of other languages,” Chief Justice Shepard said.

Some earlier ILB entries on court interpreters (plus links to others) may be found here: 12/29/04; 3/16/05.

Posted by Marcia Oddi on Thursday, October 06, 2005
Posted to Indiana Courts

Wednesday, October 05, 2005

Ind. Law - Proposal to limit procreation assistance wtihdrawn [Updated]

"Legislator drops controversial plan" is the headline to a story by Mary Beth Schneider posted on the Indianapolis Star website at 5:25 p.m. Some quotes:

A controversial proposed bill to prohibit gays, lesbians and single people from using medical procedures to become pregnant has been dropped by its legislative sponsor.

State Sen. Patricia Miller, R-Indianapolis, issued a one-sentence statement this afternoon saying: “The issue has become more complex than anticipated and will be withdrawn from consideration by the Health Finance Commission.”

Miller had asked that committee -- a panel of lawmakers who meet when the Indiana General Assembly is not in session to discuss possible legislation -- to recommend the bill to the full legislature when it meets in January.

For background, see the ILB entry from earlier today.

[Updated 10/06/05] A number of papers today have essentially the same story as above, via AP. The Fort Wayne Journal Gazette (whose Niki Kelly wrote the initial story on this) also has the AP story, but has added some additional detail.

Posted by Marcia Oddi on Wednesday, October 05, 2005
Posted to Indiana Law

Environment - More on logging in state forests

"Group hopes to ax forest management plan" is the headline to a story by Jonathan Hiskes in the Brown County Democrat. A quote:

Responding to a management plan released last month by the forestry division of the Department of Natural Resources, the Indiana Forest Alliance will try to prevent the logging increase by raising enough public support to convince the state to rethink the plan, or by defeating the state in court. Two weeks ago, the group told DNR Director Kyle Hupfer and State Forester Jack Seifert it intends to sue the state government, accusing them of breaking the law by failing to listen to public input or perform a proper environmental impact study. * * *

The Indiana Chapter of the Nature Conservancy lent conditional support to the DNR’s forest management plan, surprising other conservation groups. Dan Shaver, Director of the Conservancy’s Brown County Hills Project, said his organization supported the plan because the state has said it will use increased timber revenue to further fund forest management. The Brown County Hills Projects seeks to protect 300,000 acres of forest in the area, half of which belong to the public through the state and federal governments.

“It’s a more complicated issue than conservation versus destruction. It’s based on sustaining biodiversity,” Mr. Shaver said.

He also said the Nature Conservancy wants the state to propose a more detailed plan for controlling invasive species and to seek approval from an independent environmental auditor.

Mr. Haberman said the IFA found Nature Conservancy’s support for the plan puzzling. He said he was confident the public would not accept the management plan, citing a poll that found 70 percent of Indiana residents opposed commercial logging on state forests.

“That figure is completely disregarded by the new plan,” Mr. Haberman said. “To not end logging, but increase it five times is an incredible slap in the face to the democratic process."

For earlier ILB entries, type "forest" in the search box.

Posted by Marcia Oddi on Wednesday, October 05, 2005
Posted to Environment | Indiana Government

Ind. Econ. Dev. - "Mittal to put US headquarters in Chicago Loop"

"Mittal to put US headquarters in Chicago Loop" is the headline to a Chesterton Tribune story by Kevin Nevers, dated 10/4/05. Some quotes:

Pot-sweeteners and kind words weren’t enough to persuade Mittal Steel Company (MSC) to locate the headquarters of its U.S. operations in Northwest Indiana.

Instead the company will establish its HQ in an existing building at 1 S. Dearborn St. in Downtown Chicago sometime in the first quarter of 2006, John Mang, executive vice-president of Operations West, told the Chesterton Tribune today.

“They were looking for a site that would portray the largest steel company in the world, the headquarters of its U.S. operations,” Mang said. “And certainly the City of Chicago has an appeal for customers in the U.S. and customers around the world.” * * *

In fact, a Northwest Indiana HQ was probably never in the cards anyway, and not just because Chicago is the financial capital of the Midwest and one of the world’s great cities to boot. It’s also close to O’Hare and Midway airports, and Mang conceded that that proximity “certainly helps” make Chicago a better overall site. “We do a lot of traveling,” he said. “Being a worldwide company, we have people who zip around the world every week. (Downtown Chicago) is a very easy location to get to and from. . . . The further east you go from Chicago the harder it is to get around.”

Posted by Marcia Oddi on Wednesday, October 05, 2005
Posted to Indiana economic development

Law - C-SPAN tries again

My hero, C-SPAN's founder Brian Lamb, has sent a letter to the new Chief Justice. It begins:

Senator Arlen Spector's legislation and the several questions raised by other Senators during your confirmation hearings are indications of the great interest and raised expectations many people have regarding television access to the Court as you begin your tenure.

Knowing that you are well familiar with C-SPAN and our longstanding interest in this topic, I am writing to detail C-SPAN's commitment to coverage of the Court and to offer our technical expertise to you and the Court to help facilitate any exploration you may undertake of televised Court proceedings.

In 1988, C-SPAN committed to Chief Justice Rehnquist that if the Court would allow
camera access, C-SPAN would televise every oral argument in its entirety, without
editing and without commentary. Our commitment still stands.

Indiana's Supreme Court has provided live, and archived on-demand, internet access to its oral arguments since 2001.

Posted by Marcia Oddi on Wednesday, October 05, 2005
Posted to General Law Related

Ind. Gov't. - IU president answers critics

The Indianapolis Star has posted a brief AP story this morning, headlined "IU President Answers Critics." It begins:

BLOOMINGTON, Ind. -- Indiana University's president, who has been criticized by some professors and alumni, defended his performance to the faculty council.

"I pride myself on being an institution builder," Adam Herbert told the 50-member group at a meeting Tuesday. "I understand that the expectations are very great."

For background, start with this 8/29/05 ILB entry titled "IU embarks on image makeover."

Posted by Marcia Oddi on Wednesday, October 05, 2005
Posted to Indiana Government

Ind. Decisions - Supreme Court issues sentencing decision today

Randal Young v. State (10/4/05), a 4-page, 5-0 decision written by Judge Sullivan, was posted today. Some quotes:

As noted, the trial court, acting before Blakely was decided, enhanced the sentences on each of the counts to which Defendant pled guilty. Because this case was on appeal when Blake-ly was decided and Defendant timely appealed his sentence, he is entitled to argue that the trial court violated Blakely in imposing the sentence it did. Smylie, 823 N.E.2d at 690-91.

The Court of Appeals affirmed the sentence imposed by the trial court, finding that the trial court did not violate Blakely when it enhanced the presumptive sentence on each of the counts on grounds that Defendant had “committed multiple violent crimes within a short period of time.” Young v. State, 826 N.E.2d 665, 669 (Ind. Ct. App. 2005). That is, because Defendant had admitted when he pled guilty that he had gone on a “crime spree,” the trial court was entitled to use that admission to enhance his sentence. Id. We granted transfer. Young v. State, No. 49S04-0507-CR-321, 2005 Ind. LEXIS 604 (Ind. July 13, 2005).2

We think the application by the Court of Appeals of the “admitted by the defendant” al-ternative to the Blakely rule was not supported by authority and unnecessary in this instance. This is “because the trial court might have imposed essentially the same [amount] of jail time by ordering other sentences served consecutively, see [Ind. Code] § 35-50-1-2, and a court’s author-ity to order consecutive sentences was not affected by Blakely.” Estes v. State, 827 N.E.2d 27, 29 (Ind. 2005) (citing Smylie, 823 N.E.2d at 686).

We believe this case is most expeditiously resolved by, as we did in the recent case of Williams v. State, 827 N.E.2d 1127, 1128 (Ind. 2005), altering the sentences ourselves within the bounds of Blakely using our constitutional power to review and revise sentences. Ind. Const. art. VII, § 4.

Posted by Marcia Oddi on Wednesday, October 05, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on Carmel annexation ruling

The ILB has obtained a copy of Hamilton County Superior Court #3 Judge William J. Hughes' ruling in the Carmel annexation case, and will be posting it here shortly. (See ILB writeup two entries down.)

Here it is, a scanned copy of Certain Homesplace Annexation Territory Landowners v. City of Carmel (10/4/05).

Posted by Marcia Oddi on Wednesday, October 05, 2005
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - AG suing Gary Urban Enterprise Association to recover assets

"Judge lock's agency's assets, for now" is the headline to this story by Elizabeth Theaken in today's Munster (NW Indiana) Times. Some quotes:

The assets of the Gary Urban Enterprise Association, believed to be worth millions, are protected for the time being with a temporary restraining order granted Tuesday in Marion County Circuit Court.

Indiana Attorney General Steve Carter filed the expedited request for the restraining order Monday after a report released last month by an independent accounting firm revealed alleged financial irregularities at the GUEA.

Carter is suing GUEA to recover assets on behalf of the citizens and taxpayers of Gary.

The attorney general's lawsuit requests a receiver be appointed to maintain the association's assets and recover any that were inappropriately transferred under the watch of former Executive Director Jojuana Meeks. According to court documents GUEA's 2003 IRS filing listed assets worth about $10 million.

The restraining order and preliminary injunction will remain in effect pending a full hearing.

The Gary Urban Enterprise Association first came under fire after an investigation by The Times was published in December 2004 and revealed organizational and financial irregularities at the agency.

The underlines I've supplied are to call attention to the absolutely outstanding archive the Munster (NW Indiana) Times maintains. I typed in "guea" for the dates from Dec. 2004 forward and immediately got back links to a two-page list of stories from that period, rated by relevance. For instance, this story by Meggen Linday from Dec. 5, 2004 begins:
Piece by piece, a nonprofit in Gary methodically built a roughshod empire of abandoned properties and for-profit businesses over the past five years, largely using taxpayers' money.

With a dozen subsidiaries and hundreds of land holdings that extend from the city's eastern tip to Chicago's South Side, the Gary Urban Enterprise Association resembles a corporate conglomerate more than a social services agency.

But all is not rosy for the public charity, entrusted by Indiana to run development projects in the city's economically depressed, state-designated enterprise zone.

Its existence now is in jeopardy: A state board hearing Thursday will decide whether to revoke the enterprise zone designation.

and this story from 6/12/05 by Brendan O'Shaughnessy begins:
INDIANAPOLIS | The new Gary Urban Enterprise Association board and its lawyer have slipped through a crack in open-door laws and are refusing to provide state-requested reports on the embattled nonprofit agency.

The new GUEA board has also not followed the requirements for reapproval laid out by the former oversight agency, the Indiana State Enterprise Zone Board, and has kept the nonprofit's actions and documents shrouded in secrecy.

Despite a 90-day time limit to complete and submit a financial audit, GUEA has not sent a final copy to the Indiana Economic Development Corp., the new oversight agency. The report was due March 10.

This Oct. 4, 2005 story by Elizabeth Theaken begins:
MERRILLVILLE | Citing at least hundreds of thousands of dollars he says was wasted or misappropriated, Indiana's attorney general is suing the Gary Urban Enterprise Association.

On Monday, Attorney General Steve Carter asked the courts to put a hold on GUEA assets and prevent the destruction of the agency's records. Carter also asked the court to appoint a receiver to gather up the GUEA's remaining assets and go after wasted or misspent money. * * *

GUEA's 2003 IRS filing showed the association's assets were worth more than $10 million, according to Crowe Chizek Co., the firm retained to conduct an independent audit.

Crowe Chizek's final report was released in September. Carter's complaint alleges the new management of GUEA delayed the release of the report by refusing to pay for it.

The Crowe Chizek report indicates a "blatant misuse of public funds," the attorney general said in a news release.

Posted by Marcia Oddi on Wednesday, October 05, 2005
Posted to Indiana Government

Ind. Decisions - More on "Trial court rules against Carmel annexation of Home Place"

The Indianapolis Star today has expanded coverage of its web story yesterday (see ILB entry here) on the trial court ruling against Carmel's annexation of Homeplace. Some quotes from the story by Bill Ruthhart:

Two miles north of Home Place, in his office overlooking the fountains of Carmel's Civic Square, Mayor Jim Brainard and his allies weren't conceding defeat -- only shock at Tuesday morning's ruling by Judge William Hughes and a promise to appeal.

They dismissed the contention at the heart of Hughes' decision -- that Carmel, one of Indiana's most affluent cities, had failed to demonstrate that it could afford to provide services in the 1.6 square miles of Home Place. * * *

If the decision is not overturned on appeal, state law requires Carmel to wait four years before trying to annex Home Place again.

Carmel's City Council triggered the fight last November by approving Brainard's plan to annex Home Place, an unincorporated community of tract homes and small businesses centered at 106th Street and College Avenue. * * *

Both Brainard and Sharp disputed the reasoning behind Judge Hughes' decision, which said the city didn't provide enough evidence on how it would pay for new services in Home Place. According to Carmel's annexation plan and court documents, the city would lose more than $3.4 million in the first three years after annexing Home Place. Court documents indicate the city planned to cover the annexation shortfalls with "other available net revenues."

That apparently wasn't specific enough for Hughes, who wrote in his ruling that the court did not have "complete information about Carmel's plans for annexing Home Place." In his written decision, the Hamilton County judge said Carmel did not call the city's clerk-treasurer or any other city officials to testify and did not provide a copy of the city's financial records -- instead leaving the court to rely only on the word of Curtis Coonrod, the city's hired accountant.

Brainard countered that state law only requires Carmel to provide an annexation fiscal report in court. That report documents how much the annexation will cost and what the city plans to spend. "Our position on appeal is that we met the requirements of the law," Brainard said.

Posted by Marcia Oddi on Wednesday, October 05, 2005
Posted to Ind. Trial Ct. Decisions

Ind. Law - More on proposal to limit procreation assistance

Following on its Niki Kelly story yesterday headlined "State bill would limit procreation assistance: Process would rule out homosexuals, singles" (see ILB entry here), the Fort Wayne Journal Gazette has a strong editorial today titled "Parents and privacy." Some quotes:

Emboldened by the progress they’ve made in banning gay marriage, the Indiana General Assembly’s social engineers are seeking to make it harder for gay men, lesbians and single Hoosiers to become parents. With an ill-considered bill, they would also throw roadblocks before infertile married couples seeking medical assistance in starting a family.

The Health Finance Commission will vote on the proposed legislation Oct. 20. While the panel’s “yes” vote won’t ensure its passage in the 2006 session, the bill will undoubtedly send a message that Indiana is an intolerant state. It should be soundly rejected.

Sen. Patricia Miller, R-Indianapolis, proposed the legislation as part of an effort to strengthen state law on surrogacy and adoptions. She told The Journal Gazette’s Niki Kelly that the bill wasn’t intended to prevent people from having children, but just to “find some guidelines.” * * *

But ensuring the safety of children placed through adoption and surrogacy is a far cry from the intrusive role Miller is attempting to take.

Check here for a list of the members of the legislative Health Finance Commission.

The Indianapolis Star has an abbreviated AP version of the story today. The Star's headline: "Assisted-reproduction bill would bar singles, gays."

Posted by Marcia Oddi on Wednesday, October 05, 2005
Posted to Indiana Law

Tuesday, October 04, 2005

Courts - Use of religion in hiring decision OK

So ruled Judge Sidney H. Stein of the Southern District of New York in a 48-page opinion dated Sept. 30th. I just heard about it in this NPR All Things Considered story (listen here) by Barbara Bradley Hagerty. The description:

A federal court in New York has ruled that the Salvation Army may hire and fire employees according to their religious beliefs -- even though it receives most of its money for social services from the government. The ruling earlier this week is considered a major court victory for the Bush administration.
The case is Anne Lown et al. v. The Salvation Army, et al. (I've uploaded it temporarily to my site.)

Posted by Marcia Oddi on Tuesday, October 04, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - U.S. Supreme Court refuses to hear Ward case [Updated]

A brief story on the 14 WFIE (Evansville) site this morning:

The US Supreme Court refuses to hear the case of Roy Lee Ward. This means Ward will receive a new trial in the death of Dale, Indiana teen, Stacy Payne.

The Indiana Supreme Court overturned Ward's conviction and death sentence earlier this year, because of alleged jury bias. Prosecutors then asked for the US Supreme Court to hear the matter.

Ward's accused of the 2001 rape and murder of Stacey Payne. There's no word yet on when Ward will be retried. But prosecutors say it will likely happen early next year.

Here is the ILB case summary from 6/30/04 (second case). Here is press coverage of the decision, from 7/2/04.

[Updated 10/5/05] Today's Louisville Courier Journal has a longer story about the cert denial by the U.S. Supreme Court.

Posted by Marcia Oddi on Tuesday, October 04, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Trial court rules against Carmel annexation of Home Place

The Indianapolis Star is reporting this afternoon:

After a year of debate and a lengthy court battle, a Hamilton County judge has ruled Carmel cannot annex Home Place, a small community completely surrounded by the city's boundaries. Judge William J. Hughes announced his decision this morning, putting an end to the annexation battle -- at least for now. * * *

Carmel's City Council unanimously voted last November to annex the 1.6-square-mile hamlet bound by I-465 to the south, Westfield Boulevard to the east, 111th Street to the north and U.S. 31 to the west.

In February, Home Place filed a court remonstrance with signatures from more than 65 percent of landowners in the area opposing annexation. After two days of court arguments in July, Hughes released his decision today.

It's unclear how the Home Place decision will affect Carmel's ongoing efforts to annex southwestern Clay Township. Carmel voted to annex that 8.3-square-mile area last November. No Ordinance for Annexation, or NOAX, is the community group in that area. The city and NOAX announced a deal last month that would delay annexation for three years and give property owners a three-year tax break package. Property owners have until Dec. 1 in southwestern Clay to vote by mail ballot on that deal.

Posted by Marcia Oddi on Tuesday, October 04, 2005
Posted to Ind. Trial Ct. Decisions

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

A second case involving retaliatory discharge within a week. (See the 9/28/05 ILB entry.) Today is a ruling by Senior Judge Ratliff in the case of Russell Purdy v. Wright Tree Service, Inc. that concludes:

Purdy failed to show that his filing for and receipt of worker’s compensation benefits was the sole reason he was discharged, as required in a Frampton claim.

Posted by Marcia Oddi on Tuesday, October 04, 2005
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on Pfaff resignation [Updated]

The South Bend Tribune reports today:

Elkhart Superior Court 1 Judge Benjamin Pfaff resigned from the bench in a Sept. 28 letter addressed to Indiana Supreme Court Chief Justice Randall Shepard.

In December 2003, Pfaff was accused of entering the Simonton Lake home of an 18-year-old man, holding him at gunpoint and interrogating him about the location of Pfaff's daughter.

Pfaff had been on a paid suspension from his practice since Sept. 11 after a Supreme Court-appointed panel of judges recommended removing him from office on charges of judicial misconduct.

The suspension would have lasted until the high court acted on the recommendation to remove Pfaff. * * *

Arrangements had already been made to cover Pfaff's court in his absence during his suspension.

"Either the present situation will continue until a replacement is found," said David Remondini, counsel to Chief Justice Randall Shepard Monday, "or some workable situation will be implemented."

Mitch Daniels spokeswoman Jane Jankowski said Monday that a process for finding a replacement for Pfaff will be initiated and the General Counsel will oversee selecting applications as well as receiving nominations.

Elkhart Superior Court 1 employees said they were not aware of Pfaff's resignation when they were contacted Monday afternoon.

[Updated] In a story headlined "Judge Pfaff resigns: Apology offered; governor seeking replacement," Justin Leighty of the Elkhart Truth reports:
The resignation actually caused a hitch in the process, since Pfaff sent it to the wrong place.

"Typically when people resign or retire they notify the governor, since when they resign, the governor appoints a replacement judge," said David Remondini, counsel to Chief Justice Randall Shepard.

Jane Jankowski, spokeswoman for Gov. Mitch Daniels, said Shepard's office forwarded Pfaff's request to Daniels late Monday afternoon, and the process has begun to pick a replacement.

Pfaff's resignation won't end the disciplinary case against him.

Remondini couldn't talk about Pfaff's case, but said that when an attorney or judge is in the midst of disciplinary procedures and resigns, that isn't the end, as far as the Supreme Court is concerned.

"The court will finish its matters when it has all the information and decides," Remondini said.

Though the resignation rendered moot the request and the recommendation that Pfaff be removed from the bench, the justices could still suspend Pfaff's law license and order that he never again be eligible to be a judge.

The Indiana Commission for Judicial Qualifications sought Pfaff's removal from the bench after he was accused of pulling a gun on a man and then lying to investigators about the incident. Pfaff was suspended last month, pending the outcome of the disciplinary case.

Posted by Marcia Oddi on Tuesday, October 04, 2005
Posted to Indiana Courts

Environment - Indianapolis water and sewer in headlines again today; more on state forests

As was the case yesterday (see this ILB entry), today's Indianapolis Star has front-page stories today on Indianapolis' water and swer systems.

"Water system under state, federal scrutiny: It's unclear whether the investigations are connected; results of water sample tests are expected this week," is the headline to this story.

"Sewer rate proposal response is mixed: Mayor says plan will improve public health" is the headline to this story.

The Fort Wayne Journal Gazette has an editorial today titled "Indiana’s tree tradeoffs." Some quotes:

Gov. Mitch Daniels’ plan to increase tree harvesting in Indiana’s public forests by five times the current rate has some environmental benefits, as well as some pretty attractive economic benefits. It is even getting surprising support from environmental interests. But there are concerns about the plan that the Department of Natural Resources needs to address.

Some trees – oak, hickory, cherry, walnut – need a lot of sunlight to grow. When tree canopies become too congested, those types of trees are not able to thrive. Meanwhile, other tree species, like maple and beech, proliferate. DNR officials are increasing the harvesting to balance the old and new growth in Indiana’s forests. If the diversity in trees is limited, so is the habitat for wildlife. * * *

The Nature Conservancy supports the efforts to balance timber production with biodiversity protection. The increased harvesting could reduce spread of tree diseases and insect infestation, but only if the harvesting is done right. The group also has concerns about preventing invasive species – like the emerald ash borer – and urban forestry issues. They want the DNR to seek dual certification of its harvesting plan by a third party. That is, they want the Forest Stewardship Council and the Sustainable Forestry Initiative to have a look at the plans before the trees get chopped.

“So many of the details are still unknown. It’s difficult to see what this would look like over the long term,” Shuey said.

[Dan Ernst, assistant state forester,] says the DNR is still researching the issue of seeking certification of tree-harvesting plans by a third party. “What’s important is biodiversity across the landscape and biodiversity over time,” Ernst says.

As with almost all environmental issues, appropriate forest management is a delicate balance. And whether that delicate balance will be achieved remains uncertain. State forestry leaders are wise to consider the suggestions from conservation groups about the harvesting plan.

Posted by Marcia Oddi on Tuesday, October 04, 2005
Posted to Environment

Ind. Courts - Marion County requests 8 more judges

The Indianapolis Star reports today, in a story by Kevin Corcoran, that beins:

Marion County residents who go to court have a less than 50 percent chance of a trial judge hearing their case.

Appointed officials preside over felony trials, hear traffic cases and decide paternity, as residents' state taxes are used to pay elected judges in far-flung areas of Indiana.

Marion County judicial leaders went to the Statehouse on Monday to ask for more judges as part of an effort to increase the odds of appearing before a judge in the courtroom.

Cale Bradford, presiding judge of the Marion Superior Court, asked Indiana's Commission on Courts to recommend beefing up the court system that serves as the state's judicial workhorse. Local officials want funding for four judges and four magistrates over the next three years, he said.

The Marion Circuit and Superior courts received 15.6 percent of the 1.25 million cases filed in Indiana last year -- almost as much as Allen, St. Joseph and Lake counties combined -- and raised 14.4 percent of the $64 million in court fees collected statewide.

But Marion County's courts have just 10 percent of the state's judges and magistrates, even though the county generates at least $2.5 million more in legal fees annually than the state returns in judicial pay and benefits. * * *

State taxes pay for only 43, or about 60 percent, of Marion County's court officers, compared with about 80 percent in Lake County and all of the court officers in Allen and St. Joseph counties. Marion County has not received additional court officers from the state since the mid-1990s.

Posted by Marcia Oddi on Tuesday, October 04, 2005
Posted to Indiana Courts

Ind. Law - Proposed bill would govern "causing pregnancy by means other than sexual intercourse"

"State bill would limit procreation assistance: Process would rule out homosexuals, singles" is the headline to a story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

Sen. Pat Miller, R-Indianapolis, said Indiana law currently has no regulations regarding assisted reproduction and should have similar requirements to adoption in Indiana. “Needless to say it’s going to be enormously controversial and difficult,” she said. “Our statutes are nearly silent on all this. You can think of guidelines, but when you put it on paper it becomes different.”

Miller chairs the Health Finance Commission – a panel of lawmakers that will vote Oct. 20 on whether to recommend the legislation to the full General Assembly. A “no” vote doesn’t preclude it from being offered in the 2006 legislative short session, which starts in January. A “yes” vote does not ensure its passage.

There are two parts to the draft legislation – the first dealing with some irregularities in central Indiana regarding surrogacy and adoptions. But the part of the bill raising eyebrows involves assisted reproduction.

It defines assisted reproduction as causing pregnancy by means other than sexual intercourse, including intrauterine insemination, donation of an egg, donation of an embryo, in vitro fertilization and transfer of an embryo, and sperm injection. The bill then requires “intended parents” to be married to each other and specifically says an unmarried person may not be an intended parent.

A doctor can’t begin an assisted reproduction technology procedure that may result in a child’s being born until the intended parents of the child have received a certificate of satisfactory completion of an assessment required under the bill.

The assessment is very similar to what is required for infant adoption and would be conducted by a licensed child placing agency in Indiana. Some of the required information includes the fertility history of the parents, education and employment information, hobbies, personality descriptions, verification of marital status, child care plans, letter of reference and criminal history checks.

A description of the family lifestyle of the intended parents is also required, including individual participation in faith-based or church activities.

The legislation appears to affect some married couples, although the rough draft is unclear at times. Miller said the draft will be cleaned up before a vote.

The bill does not apply to assisted reproduction in which the child is the genetic child of both of the intended parents – i.e., the sperm is from the father and the egg is from the mother. But married couples that need one or the other would still have to go through an assessment process and establish parentage in a court.

A judge couldn’t establish parentage of a child born through assisted reproduction without the assessment certificate and a separate certificate from the physician involved. A court would also be prohibited from granting a petition to establish parentage if the parents have been convicted of several specific crimes listed, such as murder, reckless homicide and neglect of a dependent. Others include felony battery, arson and any felony drug conviction, although if the offense were committed more than five years before the petition, the judge could choose to grant the petition. The bill would also establish criminal penalties for those participating in artificial reproductive procedures without following the process. The maximum charge is a misdemeanor.

Indiana Civil Liberties Union Attorney Ken Falk said his office began hearing about the bill Friday – one day after the rough draft was discussed by the Health Finance Commission. He has not read it fully but said it sets up a clear discrimination that would be difficult to uphold. He considers the bill to be unique nationally.

“My question is ‘What is the danger that we are legislating against?’ Are we saying that only married persons should be able to be parents, which is certainly a slap in the face to many same-sex couples but also to many who don’t have a partner but have undertaken being a parent,” he said.

Here is the website of the General Assembly's Health Finance Commission. Notice that a number of well-known legislators are members of the Commission.. Here is link to the draft bill language.

Posted by Marcia Oddi on Tuesday, October 04, 2005
Posted to Indiana Law

Ind. Courts - More on Randolph County Courthouse

"Randolph County again looking to buy old Wal-Mart" is the headline to this story by Joy Leiker in the Muncie StarPress. Some quotes:

WINCHESTER - Two weeks after the Randolph County Board of Commissioners crossed the old Wal-Mart store off its list of courthouse possibilities, the former retail space is back on the bargaining table.

Monday the commissioners voted to bid on the 54,962-square-foot building on Winchester's east side.

If it sounds like a broken record, that's because the commissioners made that same decision a month ago. Then they redirected their attention two weeks later because they thought the Wal-Mart store had been sold to someone else.

Turns out, they were wrong. The building, believed to be the only space in Winchester large enough to hold every courthouse office, employee and paper required, is still listed for sale - or lease - on the company's Web site.

Now, the county isn't sure if the building is still for sale or not. Councilman Bill Terrell told commissioners and residents Monday that there's only one way to find out - submit a bid. "We'll never know," Terrell said, if the county doesn't try to purchase the property. "What are we waiting on?"

Meanwhile, as also reported in the story two entries down,"officials learned more about the condition of the existing courthouse."
Last week a structural engineer examined parts of the building during a tour led by Jack Daniels and Skip Hanchar, representatives of the architectural and construction companies hired by the county. For that tour, the men removed sheets of plywood visible in the ceiling of courthouse offices to study the bricks and mortar above. The plywood was installed a few years ago to prevent bricks and chunks of mortar from falling to the floor.

Daniels said there was evidence of water in several spots - which wasn't a surprise - but the water has left gaps in the mortar and brick, which are wet to the touch. Generally, there's more moisture in the bricks closest to the courthouse's exterior, he said.

"We're not here to say it can't be done," Hanchar said, a phrase he's repeated countless times during the county's courthouse discussions. "If you don't do this thing right, you're not going to buy any time."

Daniels and Hanchar said doing it right will require tuckpointing - replacing the mortar between every brick. "Everything we've seen is fixable," Daniels said, though he can't qualify how bad the damage is or how much repairs would cost.

Posted by Marcia Oddi on Tuesday, October 04, 2005
Posted to Indiana Courts

Monday, October 03, 2005

Ind. Courts - Embattled Elkhart Judge Resigns

"Embattled Elkhart Judge Resigns" is the headline to this story this evening from WSBT South Bend. A quote:

(WSBT) An Elkhart judge accused of pointing a gun at an 18-year-old boy is resigning.

Our partners at the South Bend Tribune report Judge L. Benjamin Pfaff has called it quits. In a written statement, he says his decision is completely voluntary and effective immediately.

Pfaff allegedly pointed a gun at the teenager in 2003 while he was searching for his daughter. In his statement, he says he is sorry for what happened.

Last Saturday, Oct. 1, the ILB posted an entry on a Elkart Truth story reporting that "Judge Benjamin Pfaff has responded to a judicial commission's recommendation to the Indiana Supreme Court that he be removed from office, his attorney said Friday." However, the reponse (or possibly resignation) was not on file with the commission as of late afternoon Friday.

Posted by Marcia Oddi on Monday, October 03, 2005
Posted to Indiana Courts

Ind. Courts - Bad news for courthouse preservationists

Newslink Indiana is reporting this evening, in a story by Brandt Showalter headlined "Courthouse inspection validates concern," and datelined Winchester, Indiana, that:

Inspection results from McClain Enterprises, Fort Wayne, showed the Randolph County Courthouse is in need of major structural repairs and has several leaks in the roof. The structural engineering group performed an inspection of the building last week.

The group was brought in to determine if the building could be remodeled or if it should be completely torn down - a subject of local debate. * * *

The county commission said it will contact Wal-Mart to make a bid on the old store as a temporary home for the courthouse offices. If the store cannot be attained, the commission said it has alternative plans including some buildings downtown.

I'm not clear whether this means that the decision to demolish the building, made by the county commissioners several months ago, was done without the benefit of an inspection. It is also not clear what these inspection results mean - repair or raze? The most recent earlier ILB entry on the courthouse controversy is from 9/20/05. See also 8/30/05 and 8/6/05 (titled "Courthouse Girls calendar hits the streets").

[More] Paige Wiser, a possibly heartless, and young, person at the Chicago Sun-Times has written a column titled "I pose this to calendar ladies: Please stop." The piece begins:

There were two particularly heartwarming items in the news the past couple of weeks.

In Waupaca, Wis., an enterprising group of middle-aged women posed nude (with some strategically placed books) for a calendar called "Desperate Librarians," to raise money for their local libraries.

And in Sao Paulo, Brazil, a dozen adventurous ladies, mostly over 50, posed nude (with some strategically placed props) for a calendar to benefit a children's hospital.

So sweet! So whimsical! So ripe for the human-interest segment of the evening news!

So . . . over.

Posted by Marcia Oddi on Monday, October 03, 2005
Posted to Indiana Courts

Ind. Gov't. - More on "IDEM claim of quickly cleared cases is challenged"

Updating the ILB entry from Saturday titled "IDEM claim of quickly cleared cases is challenged," which concluded:

(5.) I also hope to obtain a copy of the list mentioned in Kelly's story: "Shortly after that opinion was issued Sept. 22, IDEM created a list of the cases in question and gave it to Neltner and The Journal Gazette."
Matt Klien, Director of IDEM's Office of Enforcement and Compliance, has forwarded the list of resolved cases to the ILB. Access it here.

Posted by Marcia Oddi on Monday, October 03, 2005
Posted to Indiana Government

Ind. Courts - Posey Courthouse repairs start at $1.12 million; Judicial mandate

The Evansville Courier & Press reports today that:

The Posey County Commissioners have received bids from four construction firms for the renovation of the courthouse, and the cheapest bid is $1.12 million. * * * The base bid covers all general, mechanical and electrical work proposed for the project.

Should the overall project exceed a $1.4 million cap, Commissioner Scott Moye said the board came up with 13 alternate projects. Those projects include new courtroom seating, new courtroom bench alterations, enclosing ductwork at the first floor ceilings and building a dehumidification system in the attic. One alternate project also would propose allowing the courthouse staff to remain in the building during construction. * * *

In February, the Posey County Commissioners and County Council and Circuit Judge James Redwine agreed to cap courthouse renovations at $1.4 million.

In June 2004, Redwine used his judicial powers to order renovations because the 128-year-old courthouse lacks modern security features, sufficient space for records and no accessibility for the disabled. The commissioners, however, balked, saying the county didn't have the money. [emphasis added]

The judge asked the Indiana Supreme Court to help decide the issue. The high court appointed a special judge, and the special judge appointed a mediator who helped the two parties reach the compromise.

Here is the Supreme Court's 9/3/04 order appointing a special judge "In the matter of order of mandate of funds in Posey Circuit Court."

For more on judicial mandates, see my article ("Separation of Powers in the County Courthouse", available here) published in the September 2005 issue of Res Gestae.

Posted by Marcia Oddi on Monday, October 03, 2005
Posted to Indiana Courts

Law - Kentucky General Assembly roll calls to be available online

The Cincinnati Enquirer reports today:

The roll call votes of Kentucky state lawmakers appear to be finally headed to the Internet.

The General Assembly's top legislative leaders are scheduled to vote Wednesday to allow the Legislative Research Commission to post the votes on its Web site beginning in January. * * *

The commission's Web site contains information about the legislature, including the full text of all bills proposed and passed. But roll call votes have only been available on paper through the commission's Frankfort office.

If citizens wanted a roll call vote, it had to be mailed, faxed or picked up at the Frankfort office. * * *

"This is a big victory for citizen activists and the voters of Kentucky," said Caleb Brown, director of KentuckyVotes.org. * * *

"If this were 1993, when the Internet was totally new, is one thing.

"But this type of battle shouldn't have been fought in 2005, when you can go to a Web site and dig up baseball scores from 45 years ago or go online ... and follow a baseball game pitch by pitch."

The Indiana General Assembly's roll call votes have been available online for some time. In recent years the handwritten tally-sheets of House and Senate committee votes have been added.

Posted by Marcia Oddi on Monday, October 03, 2005
Posted to General Law Related

Environment - Indianapolis sewers rates and water quality in the headlines

"Sewer rate may nearly double: Mayor to propose $435 million fix for system" is the headline to a front-page story by Brendan O'Shaughnessy in today's Indianapolis Star. Some quotes:

Sewer and storm water rates would nearly double over the next three years under a proposal to be unveiled today by Mayor Bart Peterson to overhaul a system that dumps raw sewage into city waterways.

For decades, city leaders have done little to address the health and environmental problems that result from the release each year of about 7.8 billion gallons of contaminated water from more than 130 locations in the city's aging system of combined sewers. * * *

Peterson will propose $435 million in upgrades as part of his plan to clean up the mess. His strategy represents the second phase of what will become a 20-year plan to reduce raw sewage overflows to fewer than 10 per year. At present, between 45 and 80 overflows occur annually.

The new rates would bump up sewer costs on monthly water bills for the average homeowner in Marion County to $17.96 by 2008 from $9.59 today. Storm water fees would increase $1 to $2.25 per month on next spring's property tax bills. Also, a sewer connection fee of $2,500 would be imposed for the first time on all new home construction.

At the same time, the city would end its much-reviled Barrett Law, which allows the city to force homes on septic systems to pay for sewer connections under the threat of seizing the property. The city would cover any outstanding Barrett Law debts. It also would assume the cost of constructing the sewer main, leaving homeowners responsible for the much smaller cost of connecting their private property to the sewer.

Indianapolis' privatized water system is also in the news. The front page of the city-state section cotains a story by Rebecca Neal headlined "Water test results probed: 4 utility workers subpoenaed in possible falsification." Some quotes:
Four Veolia Water Indianapolis employees have been subpoenaed to testify in a federal investigation into possible falsification of water quality documents.

Water company officials would provide no details Sunday about the investigation or what positions the four employees hold in the company. The employees received the court order Friday from the U.S. Attorney's Office. * * *

A longtime critic of Veolia, City-County Councilman Jim Bradford said he learned about the investigation Sunday morning and was told the four employees will go before a federal grand jury Tuesday as part of a criminal investigation.

Bradford said the Indiana Department of Environmental Management and other agencies are involved in the investigation.

Posted by Marcia Oddi on Monday, October 03, 2005
Posted to Environmental Issues | Indiana Government

Law - Bush to nominate his White House counsel to Court

In just a few minutes President Bush reportedly will nominate his White House counsel and former personal attorney, Texan Harriet Miers, to the Supreme Court. Ms. Miers has no prior judicial experience, but has served as head of the Texas Bar Association.

[Update 7:40 AM] Here is an early story from the Washington Post. Here is the early NY Times coverage. For continuing news, keep an eye on SCOTUSblog.com.

Posted by Marcia Oddi on Monday, October 03, 2005
Posted to General Law Related

Sunday, October 02, 2005

Law - Making electronic voting tamper-proof and reliable

James Fallows' Techno Files column in today's NY Times business section ends with this:

Last month, [Jimmy Carter] and James A. Baker III, the former secretary of state, released a report on how to make the electoral system more trustworthy. Mr. Baker has his own kind of expertise, having directed the Bush team in the 2000 Florida recount. Most discussion of the report has centered on its recommendation for a national ID card. Barely noticed have been its proposals for making electronic voting tamper-proof and reliable, as discussed here last fall - especially by requiring paper receipts, like those issued by A.T.M.'s, to create a verifiable audit trail. The report is available on the American University Web site. It deserves close attention.
Here is the page for the COMMISSION ON FEDERAL ELECTION REFORM's Final Commission Report: Building Confidence in U.S. Elections.

See particularly Section 3 -- Voting Technology. It has discussions of, and recommendations on, voting machines, audits, and security for voting machines. It discusses Internet voting, but concludes "that the time for Internet voting has not yet arrived."

The ILB has had a number of entries about electronic voting, mostly before last year's election, including this one from Oct. 25, 2004.

Posted by Marcia Oddi on Sunday, October 02, 2005
Posted to General Law Related

Ind. Decisions - Indiana "Case Clips"

I've added "Case Clips" to the right-hand column of this page, in the Indiana Legal Resources section.

What is "Case Clips"? It is "an archive, going back to January of 2001, of selected decisions of the Indiana appellate courts, abstracted for judges by the Indiana Judicial Center." It comes out nearly every week, although the dates of the cases are a little mystifying. The current issue, dated Sept. 22, 2005, includes cases from 9/13/05 through 9/22/05, plus on outlier from 8/31/05.

At the beginning of each issue are one to two sentence summaries of the selected opinions' holdings. These are linked to longer "summaries" (edited opinions, in much the same style the ILB used to do).

Oddly, the summaries do not appear to be linked to the opinions themselves, although the actual opinions are easy enough to locate. [Or maybe not so oddly, as all the internal links in the summaries are to Lexis (subscribers only), rather than to the opinions on the Court's own website and the statutes on the General Assembly's website.]

One thing that would make these summaries even more useful would be to add a subject categorization to each (eg. "Family Law", "Real Estate") and then put the summaries into a database, sortable and searchable. I made a start on that project last spring, then put it on the back-burner. Time maybe to revive it.

Posted by Marcia Oddi on Sunday, October 02, 2005
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

Law - Cases pending before U.S. Supreme Court; Life terms

Legal reporter David Savage's article in the LA Times today is headlined "Roberts May Face Early Tests as Court Convenes: A 'right-to-die' case is among the first of a series of divisive issues awaiting the Supreme Court after the new chief justice is sworn in." It begins:

The Supreme Court opens its term this week with a new chief justice, and facing a series of major cases on the "right to die," abortion, free speech and the death penalty.
Adam Liptak of the NY Times has a long article today titled "To More Inmates, Life Term Means Dying Behind Bars." Some quotes:
Just a few decades ago, a life sentence was often a misnomer, a way to suggest harsh punishment but deliver only 10 to 20 years.

But now, driven by tougher laws and political pressure on governors and parole boards, thousands of lifers are going into prisons each year, and in many states only a few are ever coming out, even in cases where judges and prosecutors did not intend to put them away forever.

Indeed, in just the last 30 years, the United States has created something never before seen in its history and unheard of around the globe: a booming population of prisoners whose only way out of prison is likely to be inside a coffin. * * *

The phenomenon is in some ways an artifact of the death penalty. Opponents of capital punishment have promoted life sentences as an alternative to execution. And as the nation's enthusiasm for the death penalty wanes amid restrictive Supreme Court rulings and a spate of death row exonerations, more states are turning to life sentences.

Defendants facing a potential death sentence often plead to life; those who go to trial and are convicted are sentenced to life about half the time by juries that are sometimes swayed by the lingering possibility of innocence.

As a result the United States is now housing a large and permanent population of prisoners who will die of old age behind bars. At the Louisiana State Penitentiary in Angola, for instance, more than 3,000 of the 5,100 prisoners are serving life without parole, and most of the rest are serving sentences so long that they cannot be completed in a typical lifetime.

Posted by Marcia Oddi on Sunday, October 02, 2005
Posted to General Law Related

Law - Still more on running for judge in Kentucky

A 2/5/05 ILB entry, titled "More on running for judge in Kentucky," begins: "Last fall we had a number of stories on conservative groups' national attack against limits (generally via court rules) on judicial candidates stating their positions on topics that might come before them on the bench."

Today the Louisville Courier Journal has a lengthy story headlined: "Judge candidates can state views: New rule may be challenged as vague." Some quotes:

With all but two of Kentucky's 265 judgeships up for election next year, the state Supreme Court has enacted a new rule giving judicial candidates more leeway to announce their views on controversial issues like gay marriage and abortion rights.

But the lawyer for a conservative group that won a federal court ruling throwing out the old rule as unconstitutional says the new one is too vague and might be struck down.

"The question is, will there be compliance or defiance?" asked James Bopp Jr., the attorney for the Family Foundation of Kentucky, which successfully argued that the old rule violated the First Amendment right to free speech.

Bopp told about 100 lawyers and judges in Louisville last week during a judicial forum that voters have a right to know if a judge shares their values. "The personal views of judges are important," he said.

Defenders of restrictions on judicial speech say that they are essential to preserve the impartiality of the courts. Without them, they say, judicial races will turn into gutter campaigns. * * *

The old rule barred judicial candidates from making statements that "commit or appear to commit" to positions on cases they likely would hear. The new rule says judicial candidates must not "intentionally or recklessly" make a statement that could be perceived "by a reasonable person" as committing them to rule a certain way on an issue they could hear.

Lawson said the new rule gives judicial candidates more flexibility because it requires proof that violations are intentional or reckless, and because it eliminated the language that allowed candidates to be sanctioned if they only "appeared" to commit themselves on an issue.

Restrictions on judicial candidates have come under attack in dozens of states since the U.S. Supreme Court decided in a 2002 Minnesota case that judicial candidates have a free-speech right to announce their views as long as they don't pledge to vote a certain way on a particular case. Bopp won that case.

The debate recently reverberated in the U.S. Senate hearings for chief justice nominee John Roberts, who was attacked by liberals for failing to disclose his views on abortion and other issues; Roberts said he didn't want to be seen as prejudging cases. (He was confirmed last week and joined the court.)

But conservatives have pushed for rules that ease restrictions on judicial candidates so that voters will know more about their views. In a Louisville Bar Association forum last week, Bopp said that will help voters remove "liberal" judges who "make law," rather than interpret the constitution.

Posted by Marcia Oddi on Sunday, October 02, 2005
Posted to General Law Related | Indiana Courts

Environment - Air Pollution: Hazardous haze worse this year

The Sunday Indianapolis Star's front-page, above-the-fold story today, by Tammy Webber, is headlined "Hazardous haze worse this year: Spike in summer pollution alerts spurs calls for faster action to cut smog." Some quotes from the beginnng of this long piece:

Air quality in Central Indiana took a turn for the worse this summer, underscoring concerns that more must be done to make the air safe for all to breathe.

In all, 17 alerts about unsafe air -- 11 related to ozone levels and six stemming from soot, or fine particles -- were issued in the region. Last year, there was none. * * *

The spike in alerts -- partly the result of warmer temperatures necessary for harmful ground-level ozone to form and partly a reflection of new reporting practices about particles -- prompted renewed calls for greater attention to the problem. * * *

The stakes are high: Smog and fine particles, or soot, are linked to asthma and other respiratory conditions and heart problems. New research indicates that soot can cause health problems at levels lower than currently allowed. * * *

Poor air quality has economic consequences, too.
Regions that fail to comply with federal air-pollution standards must find ways to reduce emissions before allowing construction or expansion of industrial plants. Failure to comply also can result in the loss of federal dollars for roads.

On the other hand, policymakers are worried that too many regulations will strangle economic growth. Jobs, in other words, are directly related to smoggy skies.

The upshot, experts say, is that everyone, from the biggest companies to individuals, needs to help find ways to improve air quality. Doing so may prove unpopular, not just with businesses but with motorists who may be asked to make sacrifices common in smog-choked cities but unusual in Central Indiana.

Posted by Marcia Oddi on Sunday, October 02, 2005
Posted to Environment | Indiana economic development

Saturday, October 01, 2005

Law- Homeowner's insurance: "Use it and lose it."

"The Peace of Mind of Home Insurance, Unless You Use It" is the headline to a story on the front-page of today's NY Times business section. Some quotes:

THERE is a saying among consumer advocates regarding homeowner's insurance: "Use it and lose it."

It is not a phrase that insurance companies are particularly fond of. But it sums up how all too many people feel about their homeowner's insurance: if you decide to make a claim, you are in danger of being dropped. * * *

A number of factors have combined to create the current atmosphere. * * *

Then there was the mold panic, which was a turning point in the insurance industry. It made headlines in 2001 when a jury awarded $32 million (later reduced to $4 million on appeal) to a Texas family - aptly from Dripping Springs - that sued its insurance company. The family asserted that the insurance company delayed making payments to repair a plumbing leak, which led to mold infestation. That, in turn, caused respiratory and neurological damage, they said, and made their 22-room house uninhabitable.

Mold claims started pouring in - one New Yorker sued for $400 million - shaking up the insurance industry and, although the Baigels could not have known this, making insurers particularly leery of water damage claims. * * *

Consumer advocates say that another factor that led to the "use it and lose it" mentality is the greater use of databases that, much like a credit report, list a customer's claims history and how many claims have been made for a property.

These databases are known as CLUE (Comprehensive Loss Underwriting Exchange) and A-PLUS (Automated Property Loss Underwriting System). Insurance companies use the databases all the time; consumer advocates say homeowners can - and should - obtain their reports to make sure their claims record is accurate.

Simply inquiring about filing a claim can be noted on your record. The Insurance Information Institute notes that "generally questions about coverage are not recorded in the database" but that if a policyholder reports damage, even if no payment is made - for whatever reason - it will show up in the file.

Posted by Marcia Oddi on Saturday, October 01, 2005
Posted to General Law Related

Ind. Courts - Pfaff responds to judicial commission

The Elkhart Truth reports today:

Judge Benjamin Pfaff has responded to a judicial commission's recommendation to the Indiana Supreme Court that he be removed from office, his attorney said Friday.

Pfaff's Elkhart attorney, Steve Bowers, said the written response had been sent by certified mail, meeting the deadline for the filing.

Bowers declined to comment on the judge's response to the Indiana Commission on Judicial Qualifications' recommendation that Pfaff be removed from the Superior Court 1 bench because of his part in a gun-toting incident nearly two years ago. * * *

Meg Babcock of the commission that made the recommendation to the High Court said Pfaff's response wasn't on file as of late afternoon Friday.

The commission could take up to 20 days to address Pfaff's response.

By late October, all of the information will be in the hands of the court, which can take as long as it likes to make a final ruling on the case.

See also the 9/10/05 ILB entry, re Pfaff's suspension with pay.

Posted by Marcia Oddi on Saturday, October 01, 2005
Posted to Indiana Courts

Ind. Courts - Estate of former Johnson County juvenile court magistrate sued

The Shelbyville News is reporting today:

The estate of Craig Lawson, a 1986 graduate of Shelbyville High School and former Johnson County juvenile court magistrate, has been named in a lawsuit filed by Robert and Darlene Garvey of Greenwood in Johnson County Superior Court.

Lawson, 36, died of an apparent suicide on Jan. 27 with a gunshot wound to the head, and the Garveys have filed a claim against his estate.

The suit, filed on Sept. 16, alleges that Lawson was representing the Garveys in a lawsuit against Terrell Presley as the result of an automobile wreck in October 1997. When Lawson accepted his juvenile court judge position in the fall of 1999, he was barred from practicing law, but he did not inform the Garveys.

Instead, Lawson is accused of entering into an agreement with Johnson County attorney J. Andrew Woods in which Woods was to act as the Garveys’ attorney and remit the proceeds of any settlement of the claim to Lawson for disposition. Robert Garvey, however, says that he was never informed of the agreement and was told by Lawson that he would continue to represent him.

In December 1999, attorney Woods accepted a settlement of the Garveys’ injury claim from Presley’s insurance company, which agreed to pay $50,000. The check was sent to Woods along with a release to be signed by Robert Garvey.

The lawsuit claims that Woods endorsed the back of the settlement check himself and gave the check to Lawson. Lawson is then said to have forged Robert Garvey’s signature on the check and deposited it into his own checking account. Lawson then allegedly sent a release to Presley’s insurance company and his lawyer with a forged signature.

From the fall of 1999 to the end of 2004, the lawsuit claims that Lawson concealed the wrongdoing by continuing to advise the Garveys verbally and in writing that he was still their lawyer, that the case was still pending in court and he was close to negotiating a settlement of the claim.

The Garveys didn’t learn until March 2005 that their lawsuit in the automobile accident had been settled.

Posted by Marcia Oddi on Saturday, October 01, 2005
Posted to Indiana Courts

Ind. Gov't. - "IDEM claim of quickly cleared cases is challenged [Updated]

"IDEM claim of quickly cleared cases is challenged" is the headline to this story, by Niki Kelly, in today's Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – A recent public records dispute casts doubt on the Indiana Department of Environmental Management’s claim to have cleared a backlog of old enforcement cases.

The timeline of the issue goes like this:

• In June, the agency put out a statement with this opening paragraph – “The Indiana Department of Environmental Management has unclogged a bottleneck of enforcement cases that have been unresolved for two or more years. Many of the previously unresolved cases inherited by the new Daniels Administration were settled with an amicable agreement between IDEM and the responsible parties.” Later in the statement, 90 resolved cases were mentioned.

• The next day, an Associated Press story in the Huntington Herald-Press quoted IDEM’s assistant commissioner as saying the agency had resolved about 90 enforcement cases dating back at least two years.

• In July, The Journal Gazette quoted IDEM Commissioner Thomas Easterly also saying 90 cases more than two years old had been cleared.

• Also in July, Easterly gave a PowerPoint presentation to lawmakers on the Environmental Quality Service Council that included an edict to resolve “old” cases. The next point in the slide said 90 had been resolved with 20 more settlements pending.

The problem is that a list provided by IDEM of the cases shows that most of the ones resolved through agreement or dismissal were from this year or 2004 – not even close to two years old.

“That’s not a backlog,” said Thomas Neltner, the citizen who originally sought the records from IDEM on behalf of the Hoosier chapter of the Sierra Club.

The initial request to see the settlements was made June 13. The Sierra Club specifically wanted to see which companies were allowed to pay lower fines than originally anticipated for environmental violations.

Neltner’s battle with IDEM went on for months until he filed a formal complaint with the Indiana Office of the Public Access Counselor for the remaining documents in August. One item he still specifically needed was a list of all the companies involved.

Public Access Counselor Karen Davis notes that Neltner was unsure whether such a list even existed but IDEM had not responded either way.

“To my knowledge, there would be no exemption that would apply to such a list; if IDEM has compiled a list of the 90 settled cases, it should produce it,” Davis wrote.

With respect to remaining documents Neltner had requested, she expressed “doubt that the agency has met its burden to show that it has produced the records within a reasonable time. * * *

Shortly after that opinion was issued Sept. 22, IDEM created a list of the cases in question and gave it to Neltner and The Journal Gazette.

The list shows 80 cases settled, 18 dismissed and 10 in which [commissioner's] orders were issued because no resolution could be found.

Of the 98 resolved either through settlement or dismissal, 50 are from 2005 and 2004. Forty-eight were from 2003 or before – and even some of those could technically fall within the two years depending on what month they were filed.

IDEM spokeswoman Amy Hartsock said there was never any intention to mislead the public. She said the agency had embarked on two simultaneous paths – identifying old, problem cases to resolve while also reacting more quickly to new cases – that got muddled together.

I've assembled most of the documents referenced in the story:

(1.) The IDEM press release from June 6, 2005.

(2.) An AP writeup headlined "State unclogging environmental enforcement logjam", by Rick Callan, that appeared in the June 7, 2005 Louisville Courier Journal. Some quotes:

Indiana has made quick progress tackling a years-old logjam of enforcement cases against companies accused of violating air, water and solid waste regulations, a state environmental official said yesterday.

Since March, the Indiana Department of Environmental Management has resolved about 90 enforcement cases dating back at least two years, said Matthew T. Klein, assistant commissioner of the department's Office of Compliance and Enforcement.

And last week the agency warned 10 other companies to correct problems or face possible fines.

Klein said the successes show that the agency's aggressive new approach to handling cases is working.

Gov. Mitch Daniels and IDEM Commissioner Thomas Easterly have vowed to eliminate the backlog of more than 220 environmental enforcement cases that had been unresolved for at least a year and a half when Daniels took office.

"We all need to move on and get these things resolved. Not only do the companies want things resolved, IDEM does, too," Klein said. "I'm starting with the oldest cases, and I'm working my way forward."

In March, Klein's office wrote companies, warning them that if their cases were not resolved by June 1 they could face a Commissioner's Order. Unless corrective action is taken, those companies will go before an administrative law judge who could fine them.

Klein said about 90 of those cases -- all of them at least two years old -- have been resolved, with companies either agreeing to pay penalties, change their industrial operations or take other steps to comply. The department is close to settling with about 20 other companies. * * *

Among the 90 cases resolved this spring is a long-running enforcement action against Indiana Corrugated Inc., a maker of cardboard boxes in the Huntington County town of Warren, in northwestern Indiana.

Donn Wray, an Indianapolis attorney who represents Indiana Corrugated, said company officials were frustrated by their dealings with IDEM since the agency investigated a spill of a soy-based, biodegradable ink at the plant in May 2002.

Earlier this spring, IDEM and the company signed off on an agreement under which the company would pay a $28,000 fine and the agency would drop its previous concerns about solid-waste violations that the company maintained were baseless.

"We proposed a possible settlement to the previous administration, and we heard nothing from them for months. The new administration comes in and we resolved this in about three weeks," Wray said.

(3.) The agreed order in the Indiana Corrugated case. Notably, the notice of violation (NOV) in this case was dated 9/15/03. The settlement agreement is dated 5/17/05. According to para. 6 of the AO:
On April 10, 1999, the Huntington County Geographic Information Service (“GIS”) obtained aerial photographs of the Site, which showed the ink leaving the south side of the building, pooling and migrating to a ditch, which runs to a swale, and is then carried off-site to a wooded area at the northwest corner of the property, which runs to an unnamed ditch to Salamonie River, waters of the state. On May 7, 2002, representatives of IDEM conducted a spill investigation of a discharge of ink-laden wastewater from the Site to the same wooded area noted by Huntington County GIS on April 10, 1999, near the Site and into an unnamed ditch, which runs into Salamonie River, without a valid NPDES permit. Also during a follow-up inspection by representatives of IDEM on December 4, 2002, it was observed that an area of approximately four feet by six feet of pooled black water and ink-laden soil ran downstream of the pooled water on the south side of the building at the Site. The Respondent failed to obtain a valid NPDES permit prior to discharging into the waters of the state, in violation of 327 IAC 5-2-2.
Note that although the initial inspection was 5/7/02, as mentioned in both Mr. Wray's statement and the IDEM AO, the NOV in this case was not issued until 9/15/03.

(4.) The Public Access Counselor's opinion, dated Sept. 22, 2005. A quote:

The APRA does not prescribe any time in which an agency must produce its records. This office has stated that an agency must produce responsive records within a reasonable time, under all the facts and circumstances. From the gist of your complaint, and from your letters to IDEM dated September 12 and September 13, I conclude that you believe that IDEM is withholding a list of the 90 settled cases referred to in IDEM’s press release. Not only do those letters specifically request the list or state that the list is still outstanding, but the statement in your complaint that IDEM has not provided “any documents related to the list of 90 resolved cases...” seems fair only when interpreted as a request for a list, since you admit throughout your timeline that you have received many pages of records relating to the settled cases.

Hence, the central issue is whether IDEM has been forthcoming with the list of 90 cases, as well as some of the draft and final agreed orders relating to those cases and yet to be produced. Your request for the list no doubt would help you to resolve the question of how IDEM arrived at the figure of 90 resolved cases, since the records you have received thus far, in your estimation, do not reveal 90 resolved cases.

(5.) I also hope to obtain a copy of the list mentioned in Kelly's story: "Shortly after that opinion was issued Sept. 22, IDEM created a list of the cases in question and gave it to Neltner and The Journal Gazette."

[Updated 10/2/05]
The Indianapolis Star today carries an AP version of the same story. As does the South Bend Tribune, in a very abbreviated report.

Posted by Marcia Oddi on Saturday, October 01, 2005
Posted to Environment | Indiana Government

Ind. Courts - "Federal court clerk bid fond farewell"

"Federal court clerk bid fond farewell" is the headline to a story by Maureen Hayden in today's Evansville Courier& Press. It begins:

Not many people get to enjoy a retirement party with a guest list that includes burly drug agents, federal judges, a 2-month-old baby and a 94-year-old great-great grandmother. But given the cast of characters that Frances Gates Deason encountered in her 17 years as a federal courtroom deputy clerk and court clerk, it seemed entirely fitting.

In her years in the U.S. District Court in Evansville, Deason gained a reputation for a kind of blind-justice approach to those she encountered, from judges to lawyers to criminal defendants to just plain folk off the street in search of a legal remedy to their woes. They were all treated equally under her law of respect, even when they didn't quite deserve it, said co-workers who gathered Friday at the Winfield K. Denton Federal Building to say farewell. "Lawyers and litigants are always nice to judges," said U.S. Magistrate William Hussmann. "They're afraid to vent their frustrations to us, so they vent instead at the clerks. But Frances could handle any of it."

Posted by Marcia Oddi on Saturday, October 01, 2005
Posted to Indiana Courts

Environment - Some stories today

Brownfields. "Wabash gets grant to clean brownfield" is the headline to this story today in the Fort Wayne Journal Gazette. A quote:

Mayor Robert Vanlandingham announced Friday the city will receive up to $250,000 to remediate the Swinger Shell gas station site.

The Swinger site was one of four sites selected statewide by the Indiana Finance Authority’s Petroleum Reserve Grant Initiative, according to a written statement from the city of Wabash.

Wild animals. "Breeder gives away most animals: 2 tigers, mountain lion allowed on property" is the headline to this AP story. A quote:
As part of the new agreement with the state, Hill withdrew his court challenge to the removal of the animals and will give away most of them, the DNR said Friday.
Unfortunately, this may not bode that well for the animals. I happened to ask a game warden in upstate NY last week whether they had deer farms like we have in Indiana. Not only that, he said, they also had "hunting" resorts stocked with former (old or ill) zoo and circus animals.

Forests. Marty Lucas, lawyer and conservationist from North Judson, had a thoughtful piece on Indiana's state forest and wildlife policies in his blog, BigEastern, yesterday (9/30). I recommend it - access Marty's blog here.

Posted by Marcia Oddi on Saturday, October 01, 2005
Posted to Environment

Law - Some "Saturday-type" stories

Not quite in the league of a story I passed on several weeks ago titled "Town gives hydrants new coat of paint," but here are some "Saturday-type" stories from today's papers:

"Home's new driveway in danger" is the title of this story today in the Evansville Courier& Press where a homeowner was:

notified by the city engineer's office that the sidewalk crossing his driveway was too steep to meet the federal Americans With Disabilities Act.

"What really fries my cookies," said Schultze, of 521 Colonial Ave., is that he went to various agencies including Area Plan and Building commissions offices and was careful to ask along the way if there were other permits he needed before work began. No one told him he needed a driveway permit - seeking one, presumably, would have pointed up the slope regulations.

[After an inspection] the issue will be taken up at next Thursday's meeting. No one denied the requirement wasn't pointed out to Schultze, but President Jack McNeely, member Anthony Brooks and Winternheimer said Schultze's concrete contractor should have known about it. Winternheimer also promised to suggest improvements in communication to make sure future applicants are informed of all permit requirements.

"Stadium pat-downs nixed" is the headline to this story in the Cincinnati Enquirer. Some quotes:
Fans entering Paul Brown Stadium on Sunday will not be subject to hand searches, after another dust-up between the Cincinnati Bengals and Hamilton County officials.

Hamilton County Prosecutor Joe Deters said the activity - which was to be conducted by a private security firm but paid for with county money - amounted to illegal search and seizure. "It could potentially be construed as state action because there is no reasonable cause," he said. "We had the duty to protect the county." * * *

Deters planned to ask a judge Friday to halt the pat-downs until the issue could be resolved, but before that could happen, Bengals attorneys agreed no searches would be done this week.

NFL spokesman Greg Aiello says that, as far as he knows, Cincinnati will be the only team this weekend not following the new rule. The Bengals are one of 14 teams hosting a game this weekend.

Posted by Marcia Oddi on Saturday, October 01, 2005
Posted to General Law Related