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Wednesday, November 30, 2005

Ind. Decisions - Federal Court limits prayers in Indiana House [Updated]

Just posted on the Indianapolis Star website a few minutes ago:

A federal court judge today barred the speaker of the House of Representatives from permitting the saying of sectarian prayers at the beginning of session days.

Judge David Hamilton did not ban prayers in the House. But he ordered that any person chosen to give the invocation be informed that it must not advance any one faith or be used to attempt to convert listeners.

Hamilton further said the forum cannot be used to disparage other faiths. The decision stemmed from a lawsuit filed by the Indiana Civil Liberties Union against Speaker Brian Bosma, alleging that the prayers overwhelmingly promoted Christian beliefs to the exclusion of other faiths.

Here is a link to the 60-page ruling in Hinrichs, et al. v. Bosma. Some quotes:
Four Indiana residents and taxpayers have sued the Speaker of the House of Representatives of the Indiana General Assembly. They allege that most of the prayers the Speaker has permitted to open House sessions are sectarian Christian prayers, in violation of the Establishment Clause of the First Amendment to the United States Constitution. Such prayers are deemed government speech for purposes of applying the Establishment Clause. Plaintiffs bring this action under 42 U.S.C. § 1983. * * *

To summarize, the evidence shows that the official prayers offered to open sessions of the Indiana House of Representatives repeatedly and consistently advance the beliefs that define the Christian religion: the resurrection and divinity of Jesus of Nazareth. The Establishment Clause “means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). ‘The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’” County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 605 (1989), quoting Larson v. Valente, 456 U.S. 228, 244 (1982). The sectarian content of the substantial majority of official prayers in the Indiana House therefore takes the prayers outside the safe harbor the Supreme Court recognized for inclusive, non-sectarian legislative prayers in Marsh v. Chambers, 463 U.S. 783 (1983). Plaintiffs have standing as Indiana taxpayers to bring their claims, and they are entitled to declaratory and injunctive relief. This relief will not prohibit the House from opening its session with prayers if it chooses to do so, but will require that any official prayers be inclusive and non-sectarian, and not advance one particular religion. * * *

Conclusion. When the Founders of this Nation set the boundaries on the power of government, the first words they wrote in the Bill of Rights were “Congress shall make no law respecting an establishment of religion . . . .” The Founders recognized that we are a people of many strong and vigorous faiths. They acted to protect the liberty to practice those faiths. The Founders also knew centuries of history in which religious conflicts had caused war and oppression. They recognized that even the best intentions of people of faith can lead to division, exclusion, and worse. And they recognized that a majority who sees its faith as true and benign can be tempted in a democratic republic to try to use the power and prestige of government to advance that faith in ways that would actually divide and exclude.

All of us who have inherited the liberties of the religion clauses of the First Amendment continue to elaborate on their meaning and application one case at a time. In this case, for the reasons set forth above, plaintiffs are entitled to a permanent injunction against the Speaker in his official capacity barring him from permitting sectarian prayer as part of the official proceedings of the Indiana House of Representatives. If the Speaker chooses to continue any form of legislative prayer, he shall advise persons offering such a prayer (a) that it must be nonsectarian and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief, and (b) that they should refrain from using Christ’s name or title or any other denominational appeal. See Simpson v. Chesterfield County, 404 F.3d at 278-79, 284.

The court shall issue a permanent injunction accordingly.

Here is an AP story from the Star website.

For background, see this ILB entry from October 28, 2005.

[Updated] Here is a statement from Speaker Bosma in response to the ruling:

I am shocked and dismayed by the Court’s decision today. I find the Court’s unprecedented decision disturbing in that it directs me, as Speaker, to advise people that they are prohibited from using “Christ’s name or title or any other denominational appeal” when offering the invocation in the Indiana House of Representatives. It is intolerable that a court in this free society would ask a person to censure the prayer they offer in the tradition of their faith. The prayers that have been offered in the Indiana House of Representatives have represented many faiths of both our members and our citizens. The prayers that have been offered have not attempted to proselytize, advance or disparage any faith or belief. In my years of service in the Indiana General Assembly, I have always appreciated the diversity and sincerity with which the invited clerics and members have led us in the invocation. The ruling today forbids invited ministers and members to continue to exercise their right to free speech and pray in the tradition of their faith.

Posted by Marcia Oddi on Wednesday, November 30, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Several 7th Circuit decisions of interest today

The Indiana decision today is a prisoner's appeal, Woods v. McBride (SD Ind., Chief Judge McKinney), where the District Court is affirmed.

Another decision of interest is Benslimane v. Gonzales, appealing an order of the Board of Immigration Appeals. This one is written by Judge Posner, who has written previous opinions containing stinging criticisms of immigration judges. Some quotes from today's 9-page ruling:

In the year ending on the date of the argument, different panels of this court reversed the Board of Immigration Appeals in whole or part in a staggering 40 percent of the 136 petitions to review the Board that were resolved on the merits. The corresponding figure, for the 82 civil cases during this period in which the United States was the appellee, was 18 percent. Our criticisms of the Board and of the immigration judges have frequently been severe. E.g., Dawoud v. Gonzales, 424 F.3d 608, 610 (7th Cir. 2005) (“the [immigration judge’s] opinion is riddled with inappropriate and extraneous comments”) [the citations continue on for a full page] * * *

The Board’s action is intelligible, but not justifiable, only as punishment for a lawyer’s mistaken belief that the filing of the I-485 form (which had already been filed!) would be premature. We are not required to permit Benslimane to be ground to bits in the bureaucratic mill against the will of Congress. And anyway punishment was not the rationale of the Board’s action, which appears to have been completely arbitrary.

Posted by Marcia Oddi on Wednesday, November 30, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Accident punches hole in Indy building - law firm a resident

"Accident punches hole in Indy building" is the headline to a story posted to the Indianapolis Star website late this morning:

A driver was injured in a two-car crash this morning that sent a sport utility vehicle into a Downtown office building.

The Blazer came to rest on the sidewalk with its front end inside a large hole in building’s wall. Bricks and debris littered the vehicle’s roof and nearby sidewalk. * * *

About a half-dozen fire trucks and several Indianapolis police cars closed the intersection of Delaware and Washington streets. Firefighters evacuated the building and are inspecting for structural damage.

The law office of personal injury attorneys Mitchell Hurst Jacobs & Dick are among the occupants.

According to the firm’s Web site, it’s motto is: “Accidents and injuries disrupt lives. We can help restore the balance to yours.”

Posted by Marcia Oddi on Wednesday, November 30, 2005
Posted to Indiana Law

Ind. Decisions - Court of Appeals posts eight decisions today

Court of Appeals posts eight decisions today, here are some descriptions and highlights:

Carey D. Helmuth v. Distance Learning Systems involves a dispute over unpaid commissions and costs sought by a resigned employee. Affirmed in part, reversed in part, and remanded with instructions.

In Cynthia Cox, Administrator of the Estate of William Eric Cox v. Stoughton Trailers, Inc. the issue was "whether the trial court properly concluded that Stoughton owed no duty to William to maintain the safety of a trailer that it had manufactured and that caused William’s death." Judge Barnes concludes: "The trial court correctly entered summary judgment in Stoughton’s favor because there is no designated evidence that would support finding that Stoughton owed a duty to William to maintain the trailer."

In a 27-page opinion by Judge May, Simon Property Group, L.P. v. Michigan Sporting Goods Distributors, Inc., with Chief Judge Kirsch concurring in part and dissenting in part, Judge May writes:

Simon Property Group, L.P., (“Simon”) brings this interlocutory appeal of the trial court’s grant of the motion to correct error filed by Michigan Sporting Goods Distributors, Inc., (“MC Sports”) after the court granted Simon’s motion for summary judgment. Simon raises one issue, which we restate as whether the trial court abused its discretion when it granted MC Sports’ motion to correct error because MC Sports had waived its arguments by failing to raise them prior to the court’s grant of summary judgment. MC Sports cross-appeals, arguing the trial court erroneously granted summary judgment to Simon regarding the availability of additional remedies under the relevant section of the contract. * * *

Because Simon’s brief in opposition to MC Sports’ motion for summary judgment was insufficient to place the issue of breach before the trial court, the trial court did not abuse its discretion when it granted MC Sports’ motion to correct error. Nor did it err when it granted summary judgment to Simon, because reduced rent is the only remedy available for a breach of Section 24.23. Therefore, we affirm and remand for further proceedings consistent with this opinion.

CJ Kirsch: I fully concur with the majority’s holding that the trial court did not err in granting Michigan Sporting Goods’ Motion to Correct Error, but I respectfully dissent from its holding that the remedy set out in Section 24.23 of the lease is the exclusive remedy for breach of that section.

Terry L. Hall v. Jerry J. Terry involves a dispute about a tax sale of real property.

Travelers Casualty, et al. v. Siemens Building Technologies, Inc.
involves a prime-sub contractor dispute.

Sean T. Lachenman v. Mitchell & Josephine Stice
is a 30-page opinion by Judge Sullivan that begins:
Appellant-Plaintiff, Sean T. Lachenman, as the personal representative of the estate of Chere Lachenman (“Lachenman”), challenges the trial court’s grant of partial summary judgment in favor of Appellee-Defendants, Mitchell Stice and Josephine Stice (collectively “the Stices”), and also challenges the trial court’s rulings on the Stices’ motion in limine. Upon appeal, Lachenman claims that summary judgment was improperly granted because there are genuine issues of material fact as to whether Lachenman may recover on her claims of intentional and negligent infliction of emotional distress and that the trial court erred in ruling to exclude evidence regarding the vicious propensity of the Stices’ dogs and the value of Lachenman’s pet dog. We affirm.
In State of Indiana v. Raphael M. Helton, a 4-page opinion, Judge May concludes:
We must decline Raphael’s invitation to adopt reasoning that might allow the dismissal of most cases in which the victim recants his or her testimony. The police officers who would have been called to testify to Barbara’s prior statements and condition at the time she made her initial statement might not have been called to impeach her; it is more likely they would have been called to report what they personally observed. The probable cause affidavit indicates Barbara was “crying,” “fearful” and “afraid” when the police responded to her call. Their testimony would probably have been allowed under the excited utterance exception to the hearsay rule.

A victim’s decision to recant her prior statements or to not testify at all does not necessarily prevent a trial. See, e.g., Fowler v. State, 829 N.E.2d 459, 462 (Ind. 2005) (victim declined to testify after taking the stand, but the defendant was convicted and the conviction was affirmed), reh’g denied.

Raphael’s motion to dismiss should not have been granted. We must accordingly reverse and remand for trial.

Donald W. Snover v. State of Indiana deals with a question of the exclusion of evidence.

Posted by Marcia Oddi on Wednesday, November 30, 2005
Posted to Ind. App.Ct. Decisions

Ind. Courts - Marion County Judge Zore orders Lake County to pay Arthur Andersen $2.4 million

The Gary Post-Tribune reports today, in a story by John Byrne:

Heaping insult upon injury, a judge has ordered Lake County to pay disgraced accounting firm Arthur Andersen millions of dollars for the 2002 countywide property reassessment.

Though Andersen fell apart in 2002 after it was implicated in the Enron scandal, Marion County Judge Gerald Zore ruled the firm is due $2.439 million for work it performed in Lake County prior to the collapse.

Lake County must honor the contract state officials signed with Andersen on the county’s behalf in January 2002, Zore ruled. * * *

Zore noted state officials terminated the agreement in April 2002 after determining Andersen “had lost its reputation for integrity and was no longer capable of delivering the reassessment contemplated by the contract,” but said Lake County is nonetheless responsible for paying four invoices the company turned in before then.

“The contract ... is a valid and enforceable contract,” Zore wrote in a decision handed down last week. * * *

The county already has paid more than $20 million to Ohio consulting firm Cole Layer Trumble for work the company performed on the reassessment after taking over for Andersen.

State officials negotiated contracts with both firms, much to the chagrin of county officials who believed Lake County was being wrongly singled out by Indianapolis. * * *

Councilman Larry Blanchard said he wants to appeal. “Andersen’s billing was totally bogus,” Blanchard said. His contention seems to be borne out at least in part by Zore’s ruling.

The judge ordered more than $3 million deducted from Andersen’s four early 2002 invoices. That money, Zore notes, was to be paid by Andersen to subcontractors, but has already been paid directly to the subcontractors by the county.

Despite their disappointment, officials were relieved Zore did not award Andersen the full $11 million the company asked for in its suit against Lake County and the state Department of Local Government Finance.

The Munster (NW Indiana) Times reports, in a story by Bill Dolan:
CROWN POINT | An Indianapolis judge has ordered Lake County to pay the Chicago accounting firm of Arthur Andersen LLP $2.49 million for its aborted overhaul the county's property assessment system.

"What a slam to taxpayers to have to pay that to a company that did absolutely nothing," County Councilman Larry Blanchard, R-Crown Point, said Tuesday afternoon after making the decision public.

It was a welcome victory for Andersen, the accounting firm that nearly went out of business following allegations its people shredded possibly incriminating documents for Enron, an energy giant that crashed in December 2001 upon revelations it improperly inflated stock prices. * * *

Unless Lake County appeals the decision, it could be the final act in what has become the longest and most expensive property tax reassessment in Lake County history.

Lake County already had paid more than $22 million for the reassessment -- a regular across-the-board review of real estate values to map property values for the purposes of raising taxes to finance local government.

The county's 11 township assessors performed those duties until 2002 when the state Legislature ordered a private contractor do it in response to allegations urban township assessors were systematically undervaluing residential homes.

The state signed a contract with Arthur Andersen in January 2002 to perform field inspections of all 247,000 property parcels in the county.

The state rescinded that contract four months later in the wake of the Enron scandal.

Andersen claimed it didn't violate any Indiana laws and completed millions of dollars of work for the state and county during those four months and it is the victim of a breach of contract. The firm sought as much as $11 million compensation.

Here are links to three earlier entries on the Andersen contract, from 3/9/04, 3/19/04, and 3/29/04 (this entire 3/29 entry is a must read).

The 3/29/04 entry includes this quote from a Times story:

The federal suit challenges the state law that required only Lake County to hire an outside firm to conduct the reassessment. Because Lake County was the only one of Indiana's 92 counties mandated to hire an outside firm to conduct the reassessment, the law amounts to "special legislation," according to the federal lawsuit. The lawsuit also claims the tax-reform state law violates the federal Voting Rights Act because it strips residents of the right to have their property assessed by the officials they voted into office to do just that. If the federal court rules in the county's favor, Andersen's contract would be dissolved and the company could be paid only for work it actually did, [County Council attorney Gerald] Bishop said.
Notes: (1) I don't know whether the federal case is still pending. (2) Although the trial was held before Marion County Superior Court Judge Zore, and involves decisionmaking at the higher levels of state government, there has been no coverage of this dispute, to my knowledge, other than in Lake County. Maybe that is what blogs are for.

Posted by Marcia Oddi on Wednesday, November 30, 2005
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Mushroom dealer gets 10 years in prison

"Mushroom dealer gets 10 years in prison" is the headline to this story in the Munster (NW Indiana) Times.

On Oct. 18th the ILB had another Times story, headlined "Dealing in illegal mushroom may lead to many years behind bars."

Some quotes from today's story:

VALPARAISO | Mark Lynn made a last-minute effort Tuesday to convince Porter Circuit Court Judge Mary Harper to sentence him to home detention rather than prison. * * *

The plea was not enough to persuade Harper.

She sentenced Lynn to 10 years behind bars, suspending four years of the term to be spent on formal probation. Considering he has served just three days behind bars, Lynn will likely spend about three years in prison. * * *

This was the sentence sought by Porter County Deputy Prosecutor Cheryl Polarek, who stressed the seriousness of Lynn's crime.

"I believe he is an honest to goodness dealer," she said.

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. * * *

Lynn had originally struck a deal with prosecutors that would have capped his total sentence at six years. That deal fell through when it was discovered Lynn has a prior felony conviction. The change increased his potential sentenced to 10 years.

Posted by Marcia Oddi on Wednesday, November 30, 2005
Posted to Ind. Trial Ct. Decisions

Law - Ongoing scandals in our sister states of Illinois, Kentucky, and Ohio, and a powerful column from the Washington Times

Some stories about the ongoing scandals in our sister states of Illinois, Kentucky, and Ohio.

"Note-taker settles dispute, repays $12,567" is the headline to this story today in the Chicago Sun-Times. Some quotes:

SPRINGFIELD -- It was a sweet gig while it lasted. Connie Peters was paid more than $2,000 a month by the state simply to watch meetings of the Metropolitan Water Reclamation District of Greater Chicago and report back to the governor.

But after former Gov. George Ryan abolished her position in 2002, the longtime Republican operative continued getting government paychecks for nearly six months, cashing them to the tune of $12,567.

Now, to settle a lawsuit filed against her earlier this year by Attorney General Lisa Madigan, Peters has agreed to return that compensation for a job that no longer existed and perhaps shouldn't have existed in the first place.

"Eight employees join city hiring lawsuit" reports the Sun-Times:
Eight current and former city employees claimed Tuesday there was no way to get a promotion at City Hall without clout, and that sometimes meant a good word from John Daley, the mayor's brother. * * *

The employees described being passed over for promotions and lucrative overtime by less qualified, less experienced employees with clout from their associations with: John Daley's 11th Ward Regular Democratic Organization; Ald. Edward Burke's 14th Ward organization and the Daley-created Hispanic Democratic Organization run by the mayor's former political enforcer Victor Reyes.

"Fletcher's shell game: Another day, another hypocrisy in Frankfort" is the headline to this editorial in the Louisville Courier Journal that concludes:
[U]nless the Governor acts forcefully to restore his credibility, the stark gap between his promises of reform and his spoils-system practices will continue to haunt him and his party throughout the upcoming General Assembly.

Unfortunately, he shows no sign of being prepared to take such action.

Instead, his high-powered lawyers will be arguing today in the Court of Appeals that his blanket pardon in the JOBTROT scandal has the legal effect of handcuffing and gagging the special grand jury from doing anything more, short of indicting him.

Legally, they are likening his cover up of spoils-system grime to some of the great acts of presidential statesmanship, including George Washington's pardon of participants in the Whiskey Rebellion.

But whatever the similarity in legal principles, the case only emphasizes the shameful difference in motive and justification for Gov. Fletcher's assertion of such awesome executive power.

Even a court victory will not forestall legislative hearings or stanch the political bleeding. The Governor who rose by the sword of reform is now -- day by day and hypocrisy by hypocrisy -- dying by it.

"Big names piling up in Ohio Republican scandal" is the headline to this story originally published in the Washington Post. It begins:
COLUMBUS, Ohio - The scandal began as a curiosity. Tom Noe, a gregarious businessman and Republican Party leader in northwest Ohio, had been entrusted with $50 million in state money to invest in rare coins, with the idea of winning fat returns for the workers' compensation fund.

It seemed an oddity at most but, like a loose thread on a jacket, the more investigators pulled it, the more the garment unraveled, revealing members of Ohio's Republican establishment who had been wined, dined and enriched by Noe.

Republican Gov. Bob Taft, heir to the state's most famous political name, pleaded no contest in August to accepting secret freebies from Noe and others and was fined $4,000. Members of his staff admitted borrowing money from Noe or using his Florida Keys vacation home. Millions in state funds are missing from Noe's accounts.

From the Toledo Blade:
Gov. Bob Taft's approval ratings have hit single digits. But Ohio Republicans shouldn't hit the panic button, a new statewide poll suggests.

A Zogby International online survey, conducted a week after the Nov. 8 election and released yesterday, shows just 6.5 percent of Ohio voters view the embattled GOP governor very or somewhat favorably. Barely 3 percent rate his job performance as "good" or "excellent."

"I'm not aware of anyone who's ever sunk lower," pollster John Zogby said. * * *

Ohio's results show voters, despite their anger with Mr. Taft, divided evenly over which political party they trust to run state government, with 38 percent choosing Democrats and 37 percent Republicans.

Finally, from the Washington Times, a column by Bruce Bartlett. Some quotes:
One of the most important political developments in America is the creeping corruption of the Republican Party. Increasingly, there is little meaningful difference between Republicans in Congress and the Democrats they replaced a little more than 10 years ago. Unless they clean up their act fast, Republicans will suffer major losses in next year's congressional elections.

There is no question Democrats became deeply corrupt in the 40 years after 1954 when they controlled the House of Representatives continuously. * * *

One abuse that particularly bothers me is routinely holding open votes far beyond the normal time so Republican leaders can twist arms to force principled conservatives to back big spending measures. The worst was the three-hour vote in 2003 that gave us the Medicare drug monstrosity. Just a few weeks ago it was done again when the leadership held a 5-minute vote open 45 minutes to bludgeon through an energy bill.

Although few Republicans will speak on the record about such abuses for fear of retaliation, it is a growing topic of private conversations. Earlier this year, The Washington Post quoted one leadership aide lamenting, "It took Democrats 40 years to get as arrogant as we have become in 10." * * *

I believe the root of the current Republican scandal wave is that the party's governing element in Washington has completely forgotten why they were elected in the first place. Grass-roots Republicans support the party because it is the party of small government. Those who like big government, who always want Washington to do more, vote Democratic.

When Republicans begin aping the Democrats by proposing endless pork barrel projects and lavish new drug benefits for the elderly, not even pretending any budget deficit concerns, rank-and-file Republicans wonder why they should remain in a party that has little meaningful difference from the Democrats. I predict many will stay home Election Day next year.

When Republicans no longer stand for any sort of principle, it becomes a simple matter to use power just to reward your friends or those with connections. Things like the Abramoff scandal are the logical consequences. A renewed commitment to principle is the best antidote.

In the words of conservative New York Post columnist John Podhoretz: "As is often the case when reformers take the reins of power, they've become mirror images of those they replaced. They've grown especially interested in rewarding their friends, punishing their enemies and using government power for their own narrow partisan ends."

Posted by Marcia Oddi on Wednesday, November 30, 2005
Posted to General Law Related

Tuesday, November 29, 2005

Ind. Decisions - 7th Circuit issues one Indiana decision today, and an opinion re telemarketing chiropractic services in Illinois

Among the 7th Circuit decisions today is one that is Indiana-related, and one involving telemarketing chiropractic services in Illinois.

USA v. Lucas (ND Ind., Judge Lozano)

RIPPLE, Circuit Judge. After her plea of guilty to obstruction of correspondence was rejected by the district court, Rene Lucas was convicted by a jury of conspiracy to commit identity theft and of obstruction of correspondence. The court then sentenced her to concurrent terms of two years’ probation on each charge, six months’ home detention, a special assessment of $200 and restitution in the amount of $3,344.32. Ms. Lucas now submits that the district court abused its discretion in refusing to accept her tendered guilty plea to the obstruction of correspondence charge. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
Goodman v. Illinois Dept. of Regulation
FLAUM, Chief Judge. Jason Goodman is a chiropractor who currently practices in St. Louis, Missouri. He is licensed in Illinois, and states that he plans to open a clinic in Springfield. He wishes to telemarket his services to people in the Springfield area who have recently been in car accidents, but is prevented from doing so by the Illinois Medical Practice Act (“the Act”). The Act prohibits medical professionals from soliciting professional patronage under penalty of professional discipline. Goodman has filed a First Amendment challenge to the law and has requested a preliminary injunction against the Illinois Department of Financial and Professional Regulation (“the Department”) that would prohibit any professional discipline against him for telemarketing.

Posted by Marcia Oddi on Tuesday, November 29, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court issues 4 opinions, dealing with attorney discipline, prescriptive easements, and two criminal law cases

In the Matter of Dorothy J. Thomsen is a 3-page per curiam decision. Some quotes:

The parties in this case have filed a Statement of Circumstances and Conditional Agree-ment for Discipline acknowledging that respondent violated Ind. Professional Conduct Rule 8.4(g), which prohibits a lawyer from engaging in conduct in a professional capacity manifest-ing, by words or conduct, bias or prejudice based upon race. The parties’ agreement calls for a public reprimand, which we approve. Because this case is the first to arise under this section of our Rules of Professional Conduct, we write today for the benefit of the bar and the public. * * *

Because, as stipulated by the parties, respondent neither made nor substantiated any ar-gument to the court that the man’s race was relevant to the dissolution, her comments were un-necessary and inappropriate. Respondent’s comments do not met the standards for good manners and common courtesy, much less the professional behavior we expect from those admitted to the bar. Interjecting race into proceedings where it is not relevant is offensive, unprofessional and tarnishes the image of the profession as a whole.

Legitimate advocacy respecting race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors does not violate Prof.Cond.R. 8.4(g), but our decision here is based upon the parties’ agreement that race was not relevant in this case; there was no legitimate reason underlying the comments made by respondent. Respondent’s misconduct is a significant violation and cannot be taken lightly.

Respondent’s comments only serve to fester wounds caused by past discrimination and encourage future intolerance. Unfortunately, we know that conduct of the type exhibited by respondent here is not an isolated occurrence. Our Commission on Race and Gender Fairness reported in 2002, that a significant minority of those surveyed had “… observed courtroom harassment and disparagement on the basis of gender, ethnicity or race, …” Indiana Supreme Court Commission of Race and Gender Fairness, Executive Report and Recommendations, p.6, (2002). There is no place for such conduct in our courts.

We find that a public reprimand is appropriate under the circumstances presented by the parties. The respondent, Dorothy J. Thomsen, is publicly reprimanded for her misconduct. Costs of this proceeding are assessed against the respondent.

In Paul Wilfong v. Cessna Corporation, a 7-page opinion, Justice Sullivan writes:
Paul Wilfong claims to have a prescriptive easement permitting him to use a private roadway across Cessna Corporation’s property. While there was evidence that previous owners of Wilfong’s property used the roadway, there was also evidence at trial that the prior use had been only with the permission of the owner and not “hostile or under any claim of right.” This latter evidence was sufficient to support the trial court’s rejection of Wilfong’s claim.
In Rodney D. Kling v. State of Indiana, a 9-page opinioon, Justice Sullivan begins:
Our decision last year in Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004), held that an individual who pleads guilty to an offense in an “open plea” and who challenges the sentence imposed must do so on direct appeal and not by means of a petition for post-conviction relief. Collins has given rise to questions concerning the relative roles and responsibilities of county appellate public defenders and the State Public Defender in handling belated appeals of sen-tences imposed following open pleas. We address those questions in this opinion.
In Joseph Kincaid v. State of Indiana the opinion, written by Justice Sullivan, deals with when Blakely claims must be raised.

Posted by Marcia Oddi on Tuesday, November 29, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Courts of Appeals decides two insurance coverage cases today

The two insurance coverage cases decided today are:

Masonic Temple Assn. of Crawfordsville v. Indiana Farmers Mutual Ins. Co. (14 pp., reversed and remanded)

Allstate Insurance Co. v. John Burns, et al
(20 pp., affirmed)

Posted by Marcia Oddi on Tuesday, November 29, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - How in the modern media age can a notorious defendant accused of a heinous crime get a constitutionally fair trial?

"How in the modern media age can a notorious defendant accused of a heinous crime get a constitutionally fair trial?" That is the question posed in this feature story today by Maureen Hayden in the Evansville Courier& Press. Some quotes:

The dilemma? How in the modern media age can a notorious defendant accused of a heinous crime get a constitutionally fair trial? The answer, it turns out, may be rooted in events that occurred in the Evansville area 50 years ago this month, when a confessed serial killer, nicknamed "Mad Dog" by the media, went on trial amid a frenzy of publicity. * * *

For three weeks in November 1955, prosecutors and defense attorneys waded through a jury pool of more than 480 people to come up with 12 jurors to decide the fate of Evansville pipefitter Leslie Irvin.

Irvin, a suspect in a string in deaths that terrorized the Tri-State, was on trial for the Dec. 23, 1954, killing of an Evansville gas station attendant, 29-year-old Whitney Wesley Kerr. Most of the jury, under questioning by lawyers, confessed their belief in Irvin's guilt before opening arguments even began. Their guilty verdict, which led to a death sentence for Irvin, would be overturned six years later by the U.S. Supreme Court.

That ruling, cited by the Indiana Supreme Court last year in its decision to overturn the Spencer County murder conviction and death sentence of Roy Lee Ward, was precedent-setting.

The nation's top justices - after scouring stories published in The Evansville Courier and other area newspapers - overturned Irvin's conviction. In doing so, they came up with a "fair trial" standard that remains the law of the land today. The justices found that the jurors' minds "were saturated" by media coverage, orchestrated in part by police and prosecutors to convince the community of Irvin's guilt.

It was the first time a murder conviction was overturned by the U.S. Supreme Court because of pretrial publicity. But it wasn't the last. * * *

Irvin's court-appointed lawyers - Evansville attorneys Ted Lockyear Jr. and James Lopp Sr. - succeeded in getting Irvin's trial moved out of Evansville. But the trial only went as far as Gibson County - not far enough from the media saturation of the case, the U.S. Supreme Court later ruled.

It was during the closing arguments that Gibson County prosecutor Loren McGregor branded Irvin a "Mad Dog Killer." The media quickly picked up the label and it stuck. Irvin's infamy grew even larger after his first conviction, when, in January 1956, he broke out of the Gibson County jail and disappeared into a snowstorm. The "Mad Dog" killer, facing the electric chair, became the object of a nationwide manhunt for 22 days, until he was tracked down by the FBI in a San Francisco pawnshop. Irvin later told Courier reporter Joe Aaron he broke out by fashioning jail-door keys from paperback novel covers, tin foil and glue.

Don't miss this, it is a great read.

Posted by Marcia Oddi on Tuesday, November 29, 2005
Posted to Indiana Law

Ind. Decisions - Temporary order OKs in-state shipping

"Temporary order OKs in-state shipping" is the headline to this story today in the Indianapolis Star business section, by Dana Knight. Some quotes:

Indiana's 31 wineries won a temporary victory in their fight to ship products directly to consumers' homes when Marion Superior Court Judge Thomas Carroll signed a preliminary injunction last week that allows in-state shipments through March.

The ruling is the result of a lawsuit filed this month by nine state wineries against the Indiana Alcohol & Tobacco Commission. The lawsuit challenges a May letter sent to the state's wineries by Dave Heath, chairman of the commission, warning them it is against state law to ship wine in state.

Robert Epstein, an Indianapolis lawyer for the wineries, said the temporary injunction will help retailers serve customers through the holidays. After that, he hopes lawmakers will address the issue. If not, the wineries will seek a permanent injunction.

Winery owners were ecstatic Monday after hearing news of the victory. They say they started losing money as soon as they stopped shipments to comply with Heath's order. "We've been shipping since 1979, and it was presumed we could ship, so (the letter) was a big shock," said Jim Butler, owner of Butler Winery with two locations in Bloomington. * * *

Wineries in Indiana had been doing that for nearly 30 years until a Supreme Court ruling in May shook things up. In a 5-4 decision, the nation's highest court said it is unconstitutional for a state to allow local wineries to ship to in-state customers while banning out-of-state wineries from doing so.

When asked to clarify what that ruling meant for Indiana wineries, Heath said it had no effect because Indiana wineries weren't allowed to ship in-state. More than 10 wineries contacted by The Indianapolis Star in May said they had been shipping wine for years.

Heath immediately put a notice on the commission's Web site saying state law prohibits shipments. A few days later, he mailed letters to all wineries, reiterating the point.

Now that Heath's interpretation of the law has been overruled, at least temporarily, Heath said he is planning his next step. "We're going to have to see what to do next," he said, adding he stands by his May statement. "I don't see anywhere in the state law where it allows the shipment of wine, and I don't think anybody else can find it, either." * * *

Epstein also said he thinks Heath violated administrative procedures by imposing a law that doesn't exist.

Heath said he simply was pointing to a law that says those holding a farm winery permit can manufacture and bottle their wine, serve complimentary samples and sell wine by the bottle or glass on the licensed premises. They also can sell wine to a wholesaler or retailer. Heath interprets the law to mean that only those with a valid wholesaler's permit are allowed to ship.

State Rep. Cindy Noe, R- Indianapolis, said Monday the law is unclear. She is drafting legislation for consideration next year that would allow small wineries to ship in-state and out-of-state. Noe said she hasn't decided what would constitute a "small" winery. "(Until) now, you had to be standing across a counter to buy wine," she said. "I want to open things up for small vintners and grow these businesses."

For background, see this ILB entry from 11/17/05.

This 12/22/04 entry reports that "David Heath, 57, of Lafayette, a former two-term mayor of Lafayette and former two-term sheriff of Tippecanoe County, was named director of the State Alcohol and Tobacco Commission." This is the text of the letter sent out by Heath, dated May 17, 2005:

Supreme Court Ruling Clarification for Indiana Residents
May 17, 2005

The U.S. Supreme Court ruled yesterday that Michigan and New York must allow out-of-state wineries to ship wine directly to consumers in those states, since both states permit in-state wineries to do so. The basis of the Court's reasoning was that by permitting only in-state wineries to ship directly to consumers, these states were harming interstate commerce by discriminating against out-of-state wineries.

This ruling will not allow out-of-state wineries to ship wine to Indiana residents, because Indiana law does not permit Indiana wineries to ship wine directly to consumers. However, in light of the recent decision, the Alcohol and Tobacco Commission is undergoing a thorough review of Indiana's regulatory scheme to ensure that it does not improperly favor Indiana producers of alcoholic beverages.

Dave Heath
Chairman
Indiana Alcohol & Tobacco Commission

It is currently still posted on the Alcohol and Beverage Commission website.

I'd like to post Marion Superior Court Judge Thomas Carroll's injunction which, according to the story this morning, was issued last week, as well as the plaintiffs' filings, if anyone can send them to me.

[More] The Fort Wayne Journal Gazette also has a story today, by Dan and Krista Stockman. Some quotes from the end of their story:

While winemakers are rejoicing, state officials likely aren’t exactly pleased with the decision. Officials reached declined to comment on the decision, but the state’s argument against the injunction, filed by Attorney General Steven Carter on behalf of Gov. Mitch Daniels and David Heath, executive director of the Alcohol and Tobacco Commission, contends state law does prohibit in-state shipping despite what the wineries say.

“Furthermore, they have not shown that the economic harm alleged in their claim outweighs the interest of the state in enforcing its alcoholic beverage laws,” the response said.

The judge obviously disagreed, and that’s good news for now. But this doesn’t mean the battle between the two sides is over yet. Expect more action when legislators return in January. The only way for the issue to truly be settled is for legislators to clear up the law and explicitly allow wineries to ship to their customers wherever they live.

Posted by Marcia Oddi on Tuesday, November 29, 2005
Posted to Ind. Trial Ct. Decisions

Monday, November 28, 2005

Ind. Decisions - School fees case still awaiting Supreme Court ruling

The Nagy v. Evansville-Vanderburgh School Corp case is still awaiting a state Supreme Court decision. The case was argued before the Supreme Court on Nov. 23rd, 2004. See this ILB entry from Dec. 11, 2004 and this one from 8/22/05 for background and links.

Posted by Marcia Oddi on Monday, November 28, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "The Indiana Supreme Court has ducked a couple of tough calls."

"The Indiana Supreme Court has ducked a couple of tough calls" is the headline to an editorial today in the Fort Wayne News-Sentinel. Some quotes:

In a 4-1 ruling, it skirted the question of whether the state’s law or constitution recognizes same-sex parenting agreements and sent back to trial court a custody battle between two women who had lived together, raising a child one of them conceived through artificial insemination. The non-biological parent sought custody, but the trial court said she had no legal standing. The Indiana Court of Appeals disagreed, saying the woman was a “legal parent.” The Supreme Court upheld the appeals court, but not its legal-parent reasoning. It merely ruled that the trial court erred, because Indiana courts have the authority to consider the best interests of the child, which might involve placing the child with someone other than the natural parents. Justice Brent Dickson, the dissenter, also raised the point that the majority opinion “may open a veritable Pandora’s Box of troublesome questions” about parental rights. “Will this remedy thus be available, for example, to grandparents, siblings, aunts, uncles, in-laws, foster parents and former or current spouses or domestic companions, etc.? If so, today’s opinion may create an enormous opportunity for future litigation disruptive to the stability and security of children.”

In an abortion case, also decided 4-1, the court upheld Indiana’s waiting-period law, which requires a woman seeking an abortion to receive in-person counseling about medical risks and alternatives at least 18 hours before the procedure. Opponents who sued to have the law overturned argued that privacy is a core right under the state constitution that extends to women who want to end their pregnancies. The court didn’t want to go there, so it upheld the waiting period by reviewing decisions of the U.S. Supreme Court and other courts and concluding that the law does not impose a “substantial obstacle to a woman’s ability to terminate her pregnancy.”

The custody case is Dawn King v. S.B. (In re Parentage of A.B.) (11/23/05) - see ILB entry here.

The abortion case is Clinic for Women v. Carl Brizzi (11/23/05) - see most recent ILB entry at 11/26/05.

Posted by Marcia Oddi on Monday, November 28, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Econ. Dev. - "Indiana looks to grow life sciences "

"Indiana looks to grow life sciences: Biotechnology may help boost economy" is the headline to an AP story today by Rick Callahan, published in the Louisville Courier Journal. It begins:

BLOOMINGTON, Ind. -- A huge factory on the south side of Bloomington was once the world's top producer of color televisions, churning out up to 9,000 a day until 1998, when Thomson Consumer Electronics shifted the work, and the jobs, to Mexico.

Now a biotechnology center occupies much of the old building, where next year Cook Pharmica Inc. workers will begin growing batches of genetically modified mammalian cells used to make drugs and vaccines.

"It's a remarkable transition of the building -- from TVs to cell fermentation," said Jerry Arthur, president of Cook Pharmica, which expects to employ more than 220 people within five years.

The $70 million high-tech operation, one of a handful of its kind in the Midwest, is the stuff of dreams for state and industry officials hoping to turn Indiana into one of the nation's leaders in life sciences and biotechnology.

Indiana already ranks second in the nation, behind New Jersey, in its concentration of biopharmaceutical companies. David Johnson, chief executive of BioCrossroads, and others said the state has the ingredients to become a national leader in other life-science niches.

Posted by Marcia Oddi on Monday, November 28, 2005
Posted to Indiana economic development

Ind. Decisions - Court of Appeals rules in law firm malpractice case

In Legacy Healthcare v. Barnes & Thornburg, a 45-page decision issued today, Judge Sullivan writes:

Appellant-Defendant/Counter-Plaintiff, Legacy Healthcare, Inc. (“Legacy”), filed a counter-claim against Appellee-Plaintiff/Counter-Defendant, Barnes & Thornburg (“B&T”), alleging malpractice in B&T’s representation of Legacy concerning Legacy’s participation in the Medicaid program. Specifically, Legacy alleged that B&T negligently failed to perfect appeals of certain administrative determinations adverse to Legacy. The trial court granted B&T’s motion for summary judgment. Legacy now appeals * * *

Conclusion. Legacy has failed to demonstrate upon appeal that the trial court erred in granting summary judgment upon its claims of malpractice against B&T in that there is no genuine issue of material fact as to whether B&T’s alleged negligence caused Legacy harm. The judgment of the trial court is affirmed.

Posted by Marcia Oddi on Monday, November 28, 2005
Posted to Ind. App.Ct. Decisions

Environment - National Environmental Policy Act under siege

In a Christian Science Monitor long article today headlined "A tough look at a key environmental law: A congressional group finishes public hearings on law that assesses impacts of federal projects," the paper begins its report:

The National Environmental Policy Act - known as the Magna Carta of US environmental laws - is under intense political scrutiny.

For 35 years, NEPA has required that everything built or operated on federal land that "significantly affects the quality of the human environment" be scrutinized for its impact. Thousands of construction projects and other ventures - from highways, dams, and water projects to military bases and oil drilling - have been adjusted and in some cases scrapped because of the law.

The requirements of this Nixon-era act have done much for environmental protection, its supporters say. NEPA also has acted as a "sunshine law," opening the political process involving such decisions to all Americans through "environmental impact statements" allowing for public comment.

But the law has also been the basis for hundreds of lawsuits, in effect becoming a tool for activists to slow or kill many projects. NEPA also has greatly added to the cost of public works, energy development, and other beneficial projects, critics say. Most recently, it has been charged, environmental lawsuits under NEPA stymied US Army Corps of Engineers plans that might have lessened the impact of hurricane Katrina along the Gulf Coast.

A congressional task has just ended a series of public hearings in five states and Washington, D.C. Lawmakers heard from a range of interests - the New Mexico Cattle Growers' Association, the Women's Mining Coalition, the Zuni Tribe, the Sierra Club, energy lobbyists, and local officials. A report and recommendations from the task force are expected shortly. It's unclear whether these will produce major changes to NEPA, as some environmental activists fear, or merely tweaks in the law.

Posted by Marcia Oddi on Monday, November 28, 2005
Posted to Environment

Law - "The Billable Hour: Are Its Days Numbered?"

"The Billable Hour: Are Its Days Numbered? Almost everyone agrees that the billable hour is the scourge of the legal profession. So why is it still around?" That is the headline to this article from The American Lawyer, posted via law.com this morning. It begins:

For about 50 years now the billable hour has been the dominant feature of the legal profession. And for just as long lawyers have been trying to kill it. A group of litigators who usually couldn't agree that the sky was blue without several footnotes qualifying the shade will gladly sing in harmony about the evils of the billable hour and its partner in crime, the daily time sheet. Yet generations of lawyers have accounted for their work lives in six-minute increments. Both reviled and ubiquitous, the billable hour is the cockroach of the legal world.

Posted by Marcia Oddi on Monday, November 28, 2005
Posted to General Law Related

Sunday, November 27, 2005

Ind. Gov't. - More on the Indiana General Assembly's use of the internet

The Indianapolis Star has a story today on the State of Indiana website. Most interesting to me was this section near the end of the story:

Given the amount of information that flows through the Indiana General Assembly each day in the form of bills, budgets and meetings, the legislature's Web site has served as a petri dish, of sorts, for experimenting with the capabilities of the Internet.

Several years ago, the General Assembly began posting live audio of House and Senate sessions. Users also can download bills and monitor the status of legislation with special "bill tracking" software.

Last year came streaming video of full House and Senate sessions, a feature so popular it twice forced the state to upgrade its computer servers this year.

For the session that begins in January, the legislature plans to post live video of every meeting of the pivotal House Ways and Means Committee, as well as other key committee hearings.

The site also will include a virtual real-time "voting board" that mimics the electronic voting displays in the House and Senate chambers.

"Much like C-SPAN, people will be able to follow what's going on either on television or on the Internet," House Speaker Brian Bosma, R-Indianapolis, said. "That's the long-term goal here."

For more, see this ILB entry from last Monday, 11/21/05, titled "House to put Ways & Means Committee on Internet; implications."

My thoughts. I use the General Assembly website daily and couldn't operate without it; particularly as the General Assembly no longer prints the Indiana Code, the Indiana Administrative Code, the Acts of Indiana, etc. To my mind, this makes it imperative that the General Assembly take precautions to insure that our history is preserved. Most in danger is our recent history. I'll be writing more about this, perhaps in my end-of-the-year wrap-up or "wish-list."

Posted by Marcia Oddi on Sunday, November 27, 2005
Posted to Indiana Government

Ind. Law - Eminent domain on legislative agenda again this year

"Lawmakers may curb eminent domain use: Taking of property for profit at issue" is the headline to an extended story today in the Louisville Courier Journal by Lesley Stedman Weidenbenerand Ben Zion Hershberg. Some quotes:

INDIANAPOLIS -- State legislators are poised to pursue changes to the Indiana law governing eminent domain in the wake of a controversial U.S. Supreme Court decision earlier this year that expands its use.

But it's not clear whether they will succeed in their quest to restrict eminent domain -- the government seizure of private property -- to government projects, including roads, airports and stadiums.

"I would love to see that," said one of the General Assembly's most ardent property-rights advocates, Rep. David Wolkins, R-Winona Lake. "But I don't think we can do it. So my approach is going to be more expensive, significantly more expensive … for private developers." * * *

Wolkins plans to introduce legislation that would put other requirements on private-to-private land transactions through eminent domain. Property owners would receive at least 150 percent of the fair market value of their owner-occupied homes, plus compensation for their relocation costs and attorney fees for fighting the seizure under his proposal. "We're going to work to make sure people get something out of this," he said.

Wolkins also wants a law that prohibits eminent domain for private development unless the next-best alternative would increase the project's cost by 10 percent or more.

Posted by Marcia Oddi on Sunday, November 27, 2005
Posted to Indiana Law

Ind. Courts - Feature on Yorktown Town Court, Patricia Zeabart

The Muncie Star-Press has a feature story today on Yorktown Town Court, Patricia Zeabart, headlined "Judge handles violations with authority, patience." Some quotes:

Zeabart presides over Yorktown Town Court in hearings every Tuesday afternoon. Dozens of people cited into court for speeding, curfew violations and breaking conservation laws appear before her. Many plead guilty and pay a fine. Others plead not guilty and have a brief trial. On any given Tuesday, as many as 40 cases are heard. * * *

Zeabart oversees a small staff in a court building near the Yorktown Town Office. In a typical year, the court will process 8,000 tickets. Of the $160 in court costs assessed, the court gets to keep only $27. The rest goes to the state.

Posted by Marcia Oddi on Sunday, November 27, 2005
Posted to Indiana Courts

Environment - Kentucky gas/oil boom; Pines transfer station appeal

Kentucky oil and gas boom. "State's oil, gas boom spurring concerns: Critics push for tougher rules to protect people, environment" is the headline to an extended story today by James Bruggers in the Louisville Courier Journal. From a section of the article:

State and federal regulations are too lax, some say, to adequately address the environmental destruction caused by well drilling and construction of roads to the wells, including the pollution of waterways from erosion and contamination of water wells.

There are fears that the growing web of gas and oil lines, with their potential to leak, catch fire or explode, could threaten the safety of people nearby.

When conflicts involving damages arise between landowners and the companies that own rights to tap the gas or oil underground, some say the compensation offered by the industry is usually inadequate.

"All of us had to sit back and watch the coal companies destroy our land," said Hager Trent, who has owned Trent's Grocery outside Whitesburg in Letcher County for 35 years. "Now we got the gas companies."

But more wells means more tax revenue for Kentucky.

Revenue from the severance tax this year is on pace to be the highest in more than a decade — an anticipated $27million from natural gas extractions and $5million from oil.

The growth in Kentucky also comes at a time when demand — especially for natural gas — is outpacing supply, industry officials said.

"If we are not out there drilling these gas wells ... we are not going to keep up with supply and demand," said John Gabbard, executive director of the Kentucky Oil and Gas Association. "People have to understand why we are doing this."

The story points up with examples "the growing conflict between those who own the land and those who own the rights to mine for what's underneath it." And much more; don't miss the side-bar.

Pine transfer station challenge. More stories about the Pines transfer station challenge this weekend. The Gary Post-Tribune had a story yesterday [no longer online] headed "Trash station opponents will realign." Some quotes:

MICHIGAN CITY — Two grassroots groups have pulled out of a plan to file a formal appeal against a trash transfer station on County Line Road in LaPorte County. But the move doesn’t mean they’re backing down.

The Save the Dunes Conservation Fund and Residents Against Trash In Our Neighborhoods Alliance (RATIONAL) announced Wednesday that they would not appeal the Indiana Department of Environmental Management’s issuance of a permit to Great Lakes Transfer to construct a trash transfer station at 5535 N. County Line Road.

The groups still plan to oppose the proposed trash transfer station, though, organization officials say.

According to RATIONAL spokesman Larry Silvestri, the groups had spoken with their lawyers within the past week, who advised them not to file appeals separate from those filed by the towns of Beverly Shores and Pines.

“They told us it would be better if all the effort went behind the town of Pines and the Porter County commissioners,” Silvestri said.

Also from the story: "Silvestri thinks opponents of the transfer station have a good chance at convincing IDEM officials to change their minds about the station they approved Nov. 9." Apparently he means a settlement, as the appeal is not before IDEM, but rather before the separate administrative court - the Office of Enviromental Adjudication. The Michigan City News Dispatch* has a similar story online today.
________
*Intrusive subscription and log-in required to read stories, including home phone, date of birth, etc.

Posted by Marcia Oddi on Sunday, November 27, 2005
Posted to Environment

Ind. Courts - Indy Star editorializes for a new courts center

The Indianapolis Star editorial starts with a video titled "Marion County Court Facility: Undignified, Unsafe, Unjust" produced by the Indianapolis Bar Association / Marion County Bar Association / Justice Center Task Force. It is very compelling. Some quotes from the start of the editorial itself:

Our position: Plan to build criminal justice center should move forward along with a broader discussion of how to fix broken public safety system.

John Maley calls 200 E. Washington St. the most dangerous block in the city.
"The reality is someone is going to die in the building,'' says Maley. The former president of the Indianapolis Bar Association and partner in the Barnes & Thornburg law firm is talking about Indianapolis' City-County Building, home to not only criminal courts but also government offices that handle everything from handing out marriage licenses to collecting tax payments.

About 700 emergencies are reported each year in the building. More than 500 people are arrested. Chain gangs of jail inmates shuffle past jurors, witnesses and the general public in the building's hallways. Inmates even pass by a child-care center on their way to court.

Maley and current Bar President John Kautzman argue that the building's inadequacies pose an even broader risk to public safety, contributing to the early release of thousands of jail inmates because the court system lacks enough space and judicial officers to efficiently handle the caseload.
Inmates released early, at least in part because of a federal court order to reduce jail overcrowding, have been accused of six murders in the past four years. Prosecutors and police also attribute the county's increase in violent and property crimes this year to the early release of prisoners.

On Monday, a Bar Association task force will ask the Marion County Criminal Justice Planning Council, a group that includes most of the key players in public safety, to support a resolution that would begin movement toward a new criminal courts building. If approved, the resolution would ask the City-County Council to charge a committee with planning for the design, location and financing of a new criminal justice center.

Posted by Marcia Oddi on Sunday, November 27, 2005
Posted to Indiana Courts

Courts - Kentucky website on courts criticized, compared

Two entries down, the ILB writes about the federal PACER system and compares it to the Indiana effort, that has yet to get off the ground.

But then there is Kentucky. According to an informative report today in the Louisville Courier Journal, by Andrew Wolfson:

Kentucky has put court records online for the public, but the state's new Web site provides virtually no useful information, some users say.

The Administrative Office of the Courts' "Kentucky Court Records Online," launched this month, provides the name of defendants and case numbers -- and, in some instances, the next court date -- but no information about charges, dispositions, filings or previous hearings.

Businesses and nonprofit groups who use court records say the Kentucky site provides little meaningful information, especially compared with other sites, some of which offer the complete text of every pleading.

Frieda Cox, the state chairwoman for Mothers Against Drunk Driving, said that when she looked up defendants, she couldn't tell whether they had "a DUI or a 'cold check' case."

John Nelson, the managing editor of the Advocate-Messenger in Danville and immediate past president of the Kentucky Press Association, called the site "completely useless."

Here is a link to the Kentucky site.

The story reports that there is a rationale behind the limited information on the Kentucky site:

Ed Crockett, the court agency's manager of pretrial services, said the site's purpose is to let people check for their next court date -- not to provide an online record of what has happened in court.

He said state court officials continue to oppose placing substantive information online because of concerns about invasion of privacy and identify theft.

"People come to court to resolve issues," he said, "not to have information about their case published over the World Wide Web."

The agency does offer detailed case information online to lawyers and police, but Crockett said they are "business customers" of the court. The same records could be provided online to the public, he said, "but the fact you can do it doesn't mean you should."

The report continues:
Court records long have been publicly available at the courthouse, but until the emergence of the Internet, they were protected by what is known as "practical obscurity" -- the time and energy it takes to look them up.

The ability to provide remote access to sometimes intensely personal information has prompted a nationwide debate, but some states and counties have placed court information online on the theory that if the records are public, they should be as public as possible. * * *

In Iowa, a free statewide court site that offers a wide array of information about pending and resolved cases gets 350,000 visits a day, said Rebecca Colton, executive assistant to the chief justice

The site provides information withheld from Kentucky's Web page, including ages and criminal charges, but Colton said it has produced no known instances of identity theft. She said that while some people would prefer that their record not be listed, the system has produced fewer complaints than expected.

The Iowa site allows residents to follow developments in high-profile cases, such as the sexual abuse and murder of a 10-year-old girl in Cedar Rapids last March that has prompted calls for the reinstatement of the state's death penalty. * * *

In a study published in 2003 based on interviews with 4,000 people, the Federal Trade Commission concluded that public records of all forms -- including those offered online -- played an insignificant role in causing identity theft.

Shannon Ragland, who publishes civil jury verdict reports in Kentucky and three other states, contrasted Kentucky's site with those in other jurisdictions, such as the federal courts, which provide access to every pleading. The federal system, known as PACER, requires lawyers to remove Social Security numbers and other personal information before filing documents.

Ragland said Kentucky's performance is noteworthy because the state was once at the forefront of court technology.

A side-bar provides an online comparison between the Kentucky and Iowa sites.

Posted by Marcia Oddi on Sunday, November 27, 2005
Posted to Indiana Courts

Ind. Gov't. - A new look at Wayne County agricultural zoning

The Richmond Palladium-Item has a column today by Steve Higinbotham of Hagerstown, Wayne County Director of Development. He writes:

Agriculture in Wayne County has changed significantly in the past several decades. The agriculture, farms and farming -- all important economic, social and environmental resources -- have been altered to meet the ever-changing desire or need of the land seller and potential buyer.

We have all heard the buzz words concerning farmland preservation. "Smart growth," "urban sprawl" and "prime farmland" are just a few. As Wayne County's plan administrator, I have heard compelling arguments on both sides of the preservation issue, but in the final analysis, to preserve our farm ground the economic playing field must be leveled. That is, the farmer needs to be able to compete, if he or she chooses.

Government plays a role in this but that role should not inhibit the competitive enterprise system in which property is privately owned, privately managed and legally operated for a profit.

My area of responsibility with Wayne County government has placed me in a position to have some impact. We must update and revise our zoning codes so as to make it more conducive for farmers to make a living.

During this past year, I have met with my zoning counterparts in Hagerstown, Cambridge City, Centerville and Richmond, all of which have zoning control in the unincorporated area within two miles of their community's boundaries. This was important so that as those communities' zoning codes are updated, they would be written to encourage residential development in those areas.

As we update the zoning code in Wayne County government's jurisdiction, it is important to understand the changing description of the "farm." Large farms are becoming larger, the small hobby farm is becoming more prevalent and the medium-sized farm needs the ability for diversification to make an income.

When our current zoning code was written in 1968, it recognized agriculture as what you might expect. It permitted crop farming, livestock, dairies and other narrowly defined operations, for the purpose of producing a commodity for wholesale. But now in the 21st century it is vital that government recognize farming as something more and design zoning codes to recognize that fact.

The term "value-added agriculture" is the underlying theme for any potential zoning changes in our agricultural districts. Value-added agriculture is a concept of increasing the economic value and consumer appeal of an agricultural commodity.

We in the government need to be in a position to permit the farmer to have allowances to do more with the product they produce on their own property. We need to recognize that the landowner needs the flexibility to go beyond the traditional farming activities, for example, agritourism. We need to broaden our vision about agriculture and eliminate the barriers that prohibit the establishment of agricultural enterprises using tools such as agribusiness incubators and agritechnology parks.

Posted by Marcia Oddi on Sunday, November 27, 2005
Posted to Environment | Indiana Government | Indiana economic development

Courts - Electronic case filing at the federal level marks 10 year anniversary

My November 2005 Res Gestae article, "Indiana appellate court records – how accessible?", after describing the current microfilming system used by the appellate courts, and the use of the internet for posting current opinions, has a section on the future:

What is next? The federal courts have gone to electronic filing of documents. This means that the party’s documents are already in digital form when the federal courts receive them. Transcripts are created digitally. The courts’ orders and opinions are also. The records in a case may be accessed online through the federal PACER (Public Access to Court Electronic Records) system. A “Chronology of the Federal Judiciary’s Electronic Public Access (EPA) Program” is available online.

The Indiana Supreme Court has adopted a new access rule for court records, Administrative Rule 9, which went into operation January 1, 2005. Among other things, the rule clarified what personal information is to be excluded from electronic records.

The next step, if the State is to follow the course of the federal courts, would be the proposal by the Court of rules for electronic filing, and the institution of a training and phase-in program. No such rule changes are pending currently.

I thought of that when I read this posting last week on the U.S. Courts website, celebrating 10 years of electronic filing on the federal level. There is no electronic fililng at the Indiana appellate level, hence the need for all the microfilming and photocopying, the unavailability of the parties' briefs online, etc. And at the trial level, the Indiana Supreme Court Judicial Technology and Automation Committee (JTAC) came to a standstill a few months back, after four years of work, and essentially announced it was planning to begin anew. For more, see this 10/26/05 ILB entry and related links.

Here are some quotes from the federal courts' announcement:

The world's most comprehensive court electronic case filing system turns 10 years old this month, after processing more than 24 million federal court cases and serving hundreds of thousands of attorneys and litigants.

The federal courts' Case Management/Electronic Case Filing system allows most U.S. district and bankruptcy courts to accept case filings over the Internet, and gives the public instant access to docket sheets and filed case documents.

There are no added fees for filing court documents over the Internet. For a modest fee, electronic access to the documents is available through the Public Access to Court Electronic Records (PACER) program. Litigants receive one free copy of documents filed electronically in their case, which they can save or print. Others may view or download documents for eight cents a page, with a maximum cost per document of $2.40.

Currently, 85 district courts, 91 bankruptcy courts, the Court of International Trade, and the Court of Federal Claims use the CM/ECF system. Implementation takes about 10 months in each court. It is expected the system will be operating fully in virtually all courts, including the U.S. courts of appeals, by late 2006. * * *

"This is a win-win undertaking" said Leonidas Ralph Mecham, Director of the Administrative Office of the U.S. Courts, which partnered with federal courts to develop the system. "It provides lawyers, the media, and any interested party with access to important case documents from anywhere at anytime. It also is a cost-efficient and effective way for the courts to approach what previously had been a labor- and paper-intensive responsibility." * * *

"There are not many projects that warrant such praise," Mecham said, "but CM/ECF has forever changed the way federal courts conduct business and the way the public accesses court records. It will go down in history as one of the most significant milestones in federal court operations."

Posted by Marcia Oddi on Sunday, November 27, 2005
Posted to Indiana Courts

Courts - Senate Judiciary hearing on cameras in the courtroom

Last evening, th4e regular C-SPAN series, America and the Courts, showed portions of the Senate Judiciary Committee hearing from earlier this month:

Cameras in the Courtroom. The Senate Judiciary Committee holds a hearing on televising the Supreme Court and other federal court proceedings. Panelists included the President of the Radio & Television News Directors Association & the CEO of Court TV. Currently only the 2nd and 9th Circuit Appeals Courts allow cameras in the courtroom. This is a portion of the hearing.
More about the hearing is available from this 11/10/05 ILB entry. See also this entry from 11/19/05 and this update from 11/20/05 about the prohibition against cameras in Indiana trial courtrooms.

Posted by Marcia Oddi on Sunday, November 27, 2005
Posted to General Law Related | Indiana Courts

Saturday, November 26, 2005

Law - Louisville Courier Journal editorial honors the Warren Court

On Thanksgiving the Louisville Courier Journal ran an editorial headed "The Blessings of Liberty." Here are some quotes:

Hardly any aspect of American political life was left untouched by [the Warren] Court's determination to put modern bite into the Constitution's bark, and the forces of reaction and displaced power have been howling ever since.

Yet few today would actually want to surrender what the Warren Court secured through its now maligned "activism" and its supposedly abhorrent assault on "federalism" and "original intent."

Here's a reminder of the state of liberty before and after the Warren Court.

Racial segregation: Prior to the Warren Court, racist state legislators could and did segregate black and white children into separate and unequal schools. It was the activist Warren Court that intruded on this states'-rights status quo to declare that practice unconstitutional in its stirring Brown v. Board of Education decision.

Similarly, prior to the Warren Court, businesses such as hotels and restaurants freely, openly and often proudly refused to serve blacks. The Warren Court changed that, too, by upholding the 1964 Civil Rights Act by which Congress presumed the power to ban such bias nationwide.

One person, one vote:
Prior to the Warren Court, legislative districts were routinely drawn to contain radically different numbers of people in order to cheat unpopular groups, such as city residents and blacks, out of their fair share of representation. The Warren Court declared that unconstitutional, making good on the historic American principle of no taxation without representation and establishing the one-person, one-vote doctrine we take for granted today.

Privacy: Prior to the Warren Court, not even married couples had a right to sexual privacy, and moralistic legislators could, and did, make their use of contraception a crime. The Warren Court declared that a right to privacy does exist, disarming the contraception police and laying the groundwork for the sexual freedoms we enjoy today.

Fair trials: Prior to the Warren Court, Americans could be and were convicted and imprisoned without ever having a lawyer to defend them in court. Further, police were free to interrogate and/or coerce confessions from suspects without allowing them access to lawyers or notifying them of their constitutional rights.

The Warren Court disallowed all of that in a series of anti-authoritarian rulings, which, despite constant conservative wailing, did nothing to prevent today's record-setting levels of imprisonment.

Political speech:
Prior to the Warren Court, citizen critics of politicians could be intimidated into silence by the threat of being sued for libel if they advertently said something false. The Warren Court freed their tongues, ruling that "debate on public issues should be uninhibited, robust and wide-open" to the point of tolerating erroneous statements about public figures that weren't made with knowing falsity or reckless disregard for the truth. No Warren Court, no Rush Limbaugh.

Religious liberty:
Prior to the Warren Court, government officials penned prayers that were required to be said and selected Bible verses that were required to be read in public school classrooms. The Warren Court put an end to such orthodoxy, assuring that the religious beliefs held by political minorities would not be subordinated by governmental authorities to the tyranny of political majorities.

In short, if you're a libertarian of either the right or the left -- if you believe in the spirit of liberty and equality expressed in the Declaration of Independence and Bill of Rights as well as in the Constitution's enumerations of powers, if you don't want Frankfort to run your bedroom, Pat Robertson's minions to write your children's prayers or police to railroad defenseless people into jail -- take an extra moment to give thanks for the Warren Court today.

And tomorrow, be wary of those who are eager to erase its legacy.

[Thanks to the Kentucky Law Blog for the link.]

Posted by Marcia Oddi on Saturday, November 26, 2005
Posted to General Law Related

Ind. Courts - Tippecanoe deputy prosecutor honored

The Governor's Council on Impaired and Dangerous Driving has honored aTippecanoe deputy prosecutos, according to this story in the Lafayette Journal&Courier. Some quotes:

Greg Loyd is one of two deputy prosecutors who handle more than 1,000 misdemeanor and Class D felony drunken driving cases annually in Tippecanoe Superior Court 6.

Despite the heavy caseload, Loyd has taken extra time in the past two years to make sure the interests of drunken-driving victims are heard in court, found new ways to prosecute drunken-driving suspects who refuse to give breath samples and adeptly handled several high-profile cases. * * *

When Loyd noticed that there was no restitution payment plan in place for several offenders who had pleaded guilty and agreed to make restitution to their victims, Garten said, he looked up numerous past cases and scheduled hearings to establish payment schedules.

Loyd, who is fluent in Spanish, said that skill has come in handy numerous times while he worked with victims and offenders alike in court.

Garten said Loyd makes himself available to police officers at all hours to answer legal questions they encounter while investigating drunken driving cases and provides advice when police conduct sobriety checkpoints. * * *

Recently, Loyd helped the prosecutor's office obtain a $15,000 grant from the Indiana Criminal Justice Institute to pay for court-ordered blood tests for OWI suspects who refuse to give breath tests. * * *

Loyd said he and police will have to work closely with the county's judges to obtain search warrants ordering timely blood tests when there is probable cause. But he hopes it will reverse a trend of about 150 drivers annually refusing breath tests despite state laws requiring them to submit.

Dan Towery, of Mothers Against Drunk Driving-West Central Indiana, said that effort will be critical in the local fight against impaired driving. "Defense attorneys have coached their clients to refuse the breath test so that a BAC (blood-alcohol content) cannot be entered into the court record, and this weakens the case," Towery said.

Posted by Marcia Oddi on Saturday, November 26, 2005
Posted to Indiana Courts

Ind. Courts - A "ruling against women"

A "Ruling against women" is how the Fort Wayne Journal Gazette describes the Indiana Supreme Court's decision last week in the case of Clinic for Women v. Carl Brizzi (11/23/05) - see earlier ILB entries at 11/23/05 and 11/24/05. Some quotes from today's editorial:

The Indiana Supreme Court’s disappointing decision to uphold the state’s abortion waiting period appears to end the challenges to a law that unfairly restricts a woman’s right to privacy. Hoosiers should be worried about how state legislators might next impose themselves in private medical decisions.

The all-male state court voted 4-1 to uphold the waiting period, which requires women to receive counseling from a medical professional – in person – and then wait 18 hours before undergoing an abortion. Other states have waiting periods but allow women to receive counseling by phone. * * *

Only five of Indiana’s 92 counties have abortion clinics. Only one of those clinics – in Bloomington – is south of U.S. 40.

The law places a burden on women seeking abortions that it places on no one else. The state doesn’t ask men seeking vasectomies to undergo counseling and wait 18 hours before having the procedure. It doesn’t ask anyone seeking plastic surgery to travel to a clinic, to be advised that they are about to alter what God provided and then wait 18 hours before surgery.

Justice Theodore Boehm, in his dissenting opinion, correctly frames the issue: “I believe the Court of Appeals correctly held that the inalienable right to liberty enshrined in Article I, Section 1 of the Indiana Bill of Rights includes the right of a woman to choose for herself whether to terminate her pregnancy, at least where there is no viable fetus or her health is at issue,” he wrote. “I also believe the plaintiffs have alleged facts which, if they can be established, show that the statute in question imposes a material burden on the exercise of that right.”

Posted by Marcia Oddi on Saturday, November 26, 2005
Posted to Ind. Sup.Ct. Decisions

Friday, November 25, 2005

Ind. Courts - Res Gestae article on accessing Indiana appellate court records

Here is my third monthly column in Res Gestae, the monthly journal of the Indiana State Bar Association. Titled "Indiana appellate court records – how accessible?" it appears on pages 35-38 of the November 2005 issue.

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

Also in this month's Res Gestae, IU Law-Indianapolis professor emeritus William Hodes has written a "viewpoint" piece titled "Making retention elections meaningful: It all depends on the meaning of 'meaningful."

My impression is that Prof. Hodes was not actually responding to my column, but using it as a jumping off place to make his own points about another issue. When invited by Res Gestae, I wrote a response. You may read both the "Viewpoint" and the response at pages 41-42 of the November issue. Some quotes from my response:

While anticipating an upcoming major battle, sports teams are always warned: “Don’t look beyond today’s game!” . . .

Today’s game, to my mind, involves addressing issues raised by efforts such as SJR 1, which seek to change Indiana’s process for selecting appellate judges and justices back to one where these judicial positions are elective, or subject to confirmation by the Indiana Senate.

Professor Hodes’ comments, however, address instead upcoming legal issues related to the application of Republican Party v. White (US SCt 2002) to Indiana judicial elections. Cases are pending in federal courts in a number of jurisdictions, including Indiana, challenging judicial conduct rules as unconstitutionally infringing on the free-speech rights of incumbents and applicants running for judgeships.

The pending Indiana challenge is Indiana Right to Life v. Shepard (4:04-cv-71), filed 9/29/04 in the ND Indiana, Lafayette, before Judge Sharp. . . .

We do not yet know whether this challenge to the Indiana Canons will be successful. If it does succeed, we do not know whether or how the ruling would be applicable to ballot questions on retention, as opposed to judicial elections. These will be part of upcoming encounters, the ones that Professor Hodes is anticipating, rather than today’s efforts to rewrite the Judicial Article of Indiana’s Constitution, the efforts that I addressed in my column last month.

[More] See also this 11/9/05 ILB entry; particularly the final paragraph.

Posted by Marcia Oddi on Friday, November 25, 2005
Posted to Indiana Courts

Ind. Courts - Former Elkhart County Judge Pfaff files for bankruptcy

The South Bend Tribune reports today:

A former Elkhart judge who resigned after a state disciplinary proceeding has filed for personal bankruptcy in U.S. Bankruptcy Court in South Bend.

In papers filed with the court, L. Benjamin Pfaff listed assets of $221,304 and creditors' claims of $454,878.

Claims include $52,000 in state and federal taxes, both personal and corporate, and $35,000 owed to lawyers who handled his disciplinary defense.

The listed claims do not include $12,107 assessed by the Indiana Supreme Court to pay for his disciplinary investigation and hearing. Pfaff filed for bankruptcy Oct. 14 and the Supreme Court issued its payment order only last Monday.* * *

Pfaff, who tendered his resignation Sept. 30, said in bankruptcy court that he now works as a laborer at the Elkhart Elks Club, earning gross monthly wages of $1,300.

According to bankruptcy court records, Pfaff earned $84,914 as a judge in 2004 and this year had earned $61,502 by the time of his bankruptcy filing.

Posted by Marcia Oddi on Friday, November 25, 2005
Posted to Indiana Courts

Courts - Unfinished Transcripts May Nullify Convictions in Colorado

"Unfinished Transcripts May Nullify Convictions: An ex-court reporter in Colorado is ordered to finish the task for eight cases on appeal. Her refusal may send her to jail and trigger retrials." That is the headline to a lengthy story today in the LA Times. Some quotes:

CENTENNIAL, Colo. — Valerie Barnes left her job 3 1/2 years ago, but her refusal to complete some final tasks could land her in jail and spring several felons from prison.

Barnes used to be a court reporter in the Arapahoe County courthouse. For three years, she has been unable — or unwilling — to finish transcripts of trials that are awaiting appeals in Colorado's higher courts. Without the full trial records, the criminal convictions in the eight cases may be voided, which could free the defendants convicted of charges including child molestation and manslaughter. * * *

The case illustrates an Achilles' heel of the criminal justice system — its reliance on fallible humans to create a permanent record of legal proceedings.

Most court reporters type notes using a shorthand system, then convert them into a full transcript of proceedings when requested. An appeals court hearing the case of a defendant convicted of a crime needs a full transcript of the trial.

But court reporters occasionally make errors or lose notes that prevent them from completing transcripts.

In Florida in 2003, a woman convicted of drug possession won a retrial because the transcribing machine used by the court reporter in her case broke down, which garbled the notes. That same year in Charlotte, N.C., a court reporter's notes were stolen from a courthouse, leading to a new trial for a man convicted of first-degree murder. And in 1998, another court reporter in Arapahoe County failed to finish a transcript of a case that was appealed. The district attorney's office filed felony charges against the reporter, but the reporter moved to Virginia and was never prosecuted.

Many states have moved to replace court reporters with recording devices, arguing that machines are more reliable, and cheaper. But even digital recorders can cause problems. Last year, prosecutors found that a digital recorder omitted an hour of testimony in a murder case in Multnomah County, Ore., and several cases in Naples, Fla., had to be retried because recorders failed there.

Posted by Marcia Oddi on Friday, November 25, 2005
Posted to General Law Related | Indiana Courts

Environment - INDOT settles claims with U.S. EPA for illegally filling a wetland near Indianapolis International Airport

On 2/6/05 the ILB posted an entry citing an Indianapolis Star story by Tammy Webber. Some quotes from that story:

The Indiana Department of Transportation and two businesses should pay a $157,500 fine for illegally filling a wetland near Indianapolis International Airport, the U.S. Environmental Protection Agency said this week.

An INDOT contractor, Atlas Excavating, dumped construction debris in a two-acre wetland along the east fork of White Lick Creek during a 1999 reconstruction project on U.S. 40, EPA enforcement officer Greg Carlson said.

The debris destroyed wildlife habitat and is polluting the east fork of White Lick Creek, as well as reducing its ability to retain and filter rainwater, Carlson said. He said Atlas made a deal with Larry Fitzgerald of Shrum Manufactured Housing to dump the material on about 11 acres that Fitzgerald owns near U.S. 40 and Raceway Road. Instead, most of the debris was dumped across the property line in the wetland. Carlson said the EPA proposed a penalty after failed attempts to reach an agreement to restore the site. * * *

INDOT spokesman Tony Felts said the agency has hired a consultant to design a restoration plan. Carlson said INDOT indicated it would remove all fill and restore the site, but a plan has not yet been approved.

The state might appeal the fine, which could be reduced if the site is restored, Carlson said.

Just this week U.S. EPA announced:
On October 19, 2005, U.S. EPA filed a Consent Agreement and Final Order (“CAFO”) CAFO with the Regional Hearing Clerk settling potential claims against Indiana Department of Transportation, Atlas Excavating, Inc. and Mr. Larry Fitzgerald d/b/a Shrum Manufactured Housing (Respondents) for violations of Section 301 of the Clean Water Act, 33 U.S.C. § 1311. Under this settlement, Respondents will pay a civil penalty of $50,000 and restore affected wetlands. In a complaint filed against Respondents on January 21, 2005, U.S. EPA alleged that Respondents filled approximately 2 acres of wetlands without first obtaining a permit to do so. Such activities require a permit issued under Section 404 of the Clean Water Act, 33 U.S.C. § 1344. The violations occurred in Indianapolis, Indiana. Docket No. CWA-05-2005-0002. (Contact Richard M. Murawski, primary contact, 312-886-6721; Greg Carlson, additional contact, 312-886-0124)

Posted by Marcia Oddi on Friday, November 25, 2005
Posted to Environment | Indiana Government

Ind. Courts - More on posting Indiana briefs online

On Nov. 19 the ILB posted this entry headed "A great Kentucky resource: why don't we have the same in Indiana?" remarking on the fact that a law school in Kentucky provides an online, up-to-date repository of appellate briefs. I asked: "Why don't we have this in Indiana? More specifically, why can't we have access to Indiana appellate briefs via the Courts' website?"

The next day, Nov. 20, the SW Virginia Law Blog posted this entry:

How West Virginia and Kentucky put Virginia to shame

State appeals court briefs are available online in West Virginia and in Kentucky but not in Virginia.

This fact ought to be a source of embarrassment to some people in Richmond and elsewhere in the Commonwealth.

Last weekend wasn't the first time the ILB has remarked on this issue. Here is the section on "Appellate Briefs" from my 4/30/05 entry titled "Blog Disappointments, Part II."
Appellate Briefs.

Recall that in a posting Friday, available here, I quoted from the Dec. 31, 2003 New Year's Eve ILB wishlist. Among the items described as those which "could readily be accomplished by our elected/appointed officials, and would make a difference" was:

#2. Copies of briefs for cases before the Indiana Supreme Court [and Court of Appeals] made available online. When? At the same time they are filed with the Clerk of the Court.
Many other states make the briefs available online to the public. Indiana does not.

On April 14th David C. Lewis, Clerk of the Supreme and Appeals Courts, issued a press release announcing "Indiana Appellate Briefs Now Available Online through Westlaw." Some quotes:

Westlaw subscribers have several options for adding this service to their current subscriptions. Individuals who are not Westlaw subscribers may access the service with a credit card, paying on a per-use basis. * * *

"West's online briefs project takes us another step closer to providing the public with greater access to court records," said Clerk David Lewis. "We applaud West's commitment to this project. Not only does it provide Indiana's attorneys with a significant new tool, but it promotes our office's goal of openness and accountability in the judicial system." [emphasis added]

I'm not out to burn any bridges here, but I just don't think so. I think promoting West's project to sell the briefs makes it unlikely that they will ever be available online to the public at no cost.

Who, other than the parties in the case (who already are on the distribution list) might be interested in reading Indiana appellate briefs, if they were freely available?

  • People (scholars, students, attorneys interested in keeping up in an area, the interested public) who watch the oral arguments online would benefit greatly from being able first to review the briefs, and the lower court's opinion.

  • People who are interested in a contentious case, such as the recent same-sex marriage case before the Court of Appeals, and the post-Blakely/Booker cases before the the Court of Appeals and Supreme Courts, who need ready access to ALL the documents -- here we are talking about dozens of briefs.

  • People who read a decision and want to read the parties' arguments, and people who want to see a cross-section of arguments made, and cases cited, about a particular issue.
In short, the same people who read the courts' opinions and listen to oral arguments on the Court's public website should be able to access the briefs there. Is is disappointing that they can't.

Posted by Marcia Oddi on Friday, November 25, 2005
Posted to Indiana Courts

Environment - Illegal dumping in Lake County, Brownfeilds cleanup in Richmond

"IDEM finds violations at Hobart auto shop: IDEM says business owner is cooperating in cleanup" is the headline to a story today in the Munster (NW Indiana) Times. A quote:

IDEM representatives reported finding a variety of violations at I-65 Auto, 4720 W. 61st Ave, during a Nov. 14 inspection, IDEM spokeswoman Amy Hartsock said.

The inspector observed bulky waste, construction debris and dumping within 100 feet of Turkey Creek, she said. IDEM also found piping, drywall, plastic buckets and an underground storage tank, she said. * * *

State officials now are investigating potential wetland and floodway impact due to the facility's proximity to Turkey Creek.

Hartsock said IDEM would be contacting the Army Corps of Engineers to determine whether the area was a wetland and the Department of Natural Resources to see if there was any impact on the floodway.

The agency also will contact Indiana State Police and the Bureau of Motor Vehicles about the lack of salvage yard permit.

"City faces property decision" is the headline to this story in the Richmond Palladum-Item that reports:
Richmond city officials are still pondering the future of the old Indiana Gas Building and property, located just west of the new Wayne County Jail on East Main Street.

But no mater what they finally decide to do with the building and property, they first have to clean it up.

Therefore, city officials are applying for a $200,000 grant through the U.S. Environmental Protection Agency's Brownfield Cleanup program and are sponsoring three public meetings next week to get local opinion on cleaning up the property.

"The site is one of the remaining key components to the development of that corridor," Tony Foster, city director of metropolitan development. "Currently, there are no plans for the building but we have to clean that site up. And it would be good to take advantage of these grant funds when they are available."

Foster said the property contains an underground tar well that was a collection point for the residue in the natural gas making process. That tar well must be removed.

Posted by Marcia Oddi on Friday, November 25, 2005
Posted to Environment

Thursday, November 24, 2005

Law - 4th Circuit reinstates quick permits for mountaintop mining

"Court Backs Quick Permits for Mountain Coal Mines" is the headline to an AP story today in the NY Times. Some quotes:

A federal appeals court on Wednesday reinstated a streamlined permit process for mountaintop-removal coal mines in West Virginia.

The decision overturned a ruling last year by Judge Joseph R. Goodwin of Federal District Court in Charleston, W.Va. Judge Goodwin had revoked 11 permits issued by the Army Corps of Engineers under the Nationwide Permit 21 process, which is intended for activities that cause no more than minimal environmental damage.

A three-judge panel of the United States Court of Appeals for the Fourth Circuit unanimously vacated his decision, ruling that the corps had complied with the Clean Water Act. * * *

Coal officials in West Virginia and Kentucky hailed the appellate ruling as good for the industry.

"The coal industry prevailed in an extremely important court case today which upheld the ability of the Corps of Engineers to issue general permits for valley fills," said Bill Caylor of the Kentucky Coal Association, which intervened in the case with the West Virginia Coal Association and others.

The ruling should "bear heavily" on a similar case pending in federal court in Kentucky, Mr. Caylor said.

In mountaintop mining, hilltops are blasted away to uncover coal seams, and the leftover rock and dirt is dumped into valleys, burying streams. About 1,200 miles of streams were buried from 1992 to 2002.

Judge Goodwin ruled that the permit process improperly "defines a procedure instead of permitting a category of activities," that it makes no provision for a public hearing and that the corps never concluded that the valley fills had only a minor environmental impact.

The appeals court disagreed on each point.

"The corps identified a category of activities, it determined that those activities would have a minimal environmental impact both separately and cumulatively, and it provided notice and opportunity for public hearing before issuing the permit," Judge J. Michael Luttig wrote, joined by Judge Paul V. Niemeyer and visiting Judge Robert J. Conrad Jr. of Federal District Court in North Carolina.

Here is the decision, Ohio Valley Environmental Coalition v. Bulen (11/23/05).

The opinion was written by Judge Michael J. Luttig, who was reportedly on the President's "short list" for the Supreme Court.

The ILB has had a number of entries on "mountaintop mining," most recently this one from 11/8/05.

For more on Judge Goodwin's district court opinion, see these ILB entries: 7/10/04 and 8/9/04.

Posted by Marcia Oddi on Thursday, November 24, 2005
Posted to General Law Related

Ind. Decisions - Supreme Court sends lesbian lawsuit back to Monroe County judge

AP reporter Rick Callahan, in a story published today in the Fort Wayne Journal Gazette and headed "Woman seeking rights to ex-partner’s child," writes:

INDIANAPOLIS – The Indiana Supreme Court ruled Wednesday that a Bloomington woman can sue for parental rights to a child her former lesbian partner conceived through artificial insemination.

The court’s 4-1 ruling sends Dawn King’s lawsuit back to a Monroe County judge, who ruled in March 2004 that King had no legal standing with the child because she was not the girl’s biological parent.

The Indiana Court of Appeals reversed the lower court’s ruling in November 2004 and ordered a trial, finding that King, 36, was a “legal parent” of the child. Her former partner, Stephanie Benham, appealed that ruling.

In Wednesday’s decision, the Supreme Court also ordered the case to trial, although it cited different legal precedent than the appellate ruling as the basis for its decision.

“Whether any element of King’s claims will be legally sustainable remains an open question for resolution after a hearing on the merits,” wrote Chief Justice Randall Shepard. * * *

The Supreme Court’s ruling cited its 2002 decision upholding a trial court’s decision to grant permanent guardianship of two children to their stepfather, rejecting their biological father’s claims. The appellate ruling cited a 1994 decision that ordered a man to pay child support for a non-biological child his former wife gave birth to following artificial insemination.

See yesterday's ILB entry on the ruling here.

Posted by Marcia Oddi on Thursday, November 24, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Former Superior Court Judge Alan Kissinger dead at 62"

"Former Superior Court Judge Alan Kissinger dead at 62" is the headline to this story today in the Evansville Courier& Press that begins:

Alan Kissinger, who served as a Vanderburgh County Superior Court judge for six years and had a long career as a private attorney, died Tuesday at his home. Kissinger, 62, committed suicide, Vanderburgh County Chief Deputy Coroner Annie Groves said. Kissinger had serious health problems and had been under a doctor's care for the last few months, she said. Kissinger is survived by his wife and two children.

Posted by Marcia Oddi on Thursday, November 24, 2005
Posted to Indiana Courts

Ind. Decisions - Several stories on yesterday's Supreme Court abortion ruling

"Indiana law on abortion upheld: Suit challenged wait, in-person counseling" is the headline to this Lesley Stedman Weidenbenerstory today in the Louisville Courier Journal. Some quotes:

INDIANAPOLIS -- The Indiana Supreme Court yesterday upheld a law that requires in-person counseling 18 hours before an abortion, saying it does not impose a substantial burden on women who seek the procedure. Abortion opponents hailed the 4-1 ruling as "a common-sense victory" for women in Indiana. * * *

Betty Cockrum, president of Planned Parenthood of Indiana, said "it's a disappointing day for women," many of whom will now have to travel twice, miss two days of work or find two days of child care to obtain a legal medical procedure.

"We have only five counties out of 92 in Indiana where there are abortion facilities, and it's a pretty big state," she said.

Twenty-three states require women to wait a specified amount of time after counseling before obtaining an abortion, Cockrum said. Kentucky is one of them.

But only six require that the pre-abortion counseling be done in person, she said. In Kentucky, the counseling can be done by phone.

In Indiana the counseling can be done by a woman's physician rather than by the abortion clinic. But Planned Parenthood has argued that not all doctors provide the service.

Yesterday's ruling is the latest -- and perhaps the last -- in a long battle over the constitutionality of the 1995 law.

Nearly three years ago, the U.S. Supreme Court chose not to hear a similar challenge in federal court to the Indiana law, leaving it intact. It has been enforced since then.

But the Indiana Civil Liberties Union -- representing a Planned Parenthood clinic in Indianapolis -- filed suit in state court. It claimed that the counseling and waiting period violated a woman's right to privacy. * * *

But yesterday the high court largely sidestepped the privacy issue. In the majority opinion, Justice Robert Rucker wrote that "we find it unnecessary to determine whether there is any right to privacy or abortion provided or protected by Indiana's Constitution."

Instead, the court said that the ICLU and Planned Parenthood failed to show that the statute is unconstitutional under all circumstances. That's a test that must be met before the court considers whether a law violates the constitution. * * *

Justice Brent Dickson concurred with the result but wrote a separate opinion in which he said the court should have "explicitly declare(d) that the Indiana Constitution does not protect any alleged right to abortion." * * *

In the only dissenting opinion, Justice Theodore Boehm wrote that the state constitution's Bill of Rights "includes the right of a woman to choose for herself whether to terminate her pregnancy, at least where there is no viable fetus or her health is at issue."

He also said that the ICLU and Planned Parenthood had "alleged facts which, if they can be established, show that the statute in question imposes a material burden on the exercise of that right."

Jennifer Whitson of the Evansville Courier& Press writes:
The 18-hour wait, which the Legislature passed in 1995, includes an exception in the case of a medical emergency. Otherwise a woman who wants an abortion must see a physician or nurse in person to receive information, such as alternatives to abortion and the availability of fetal sketches, ultrasounds or heartbeat monitoring.

Then the woman must wait 18 hours before being eligible to return to get an abortion. * * *

The Marion County Superior Court dismissed the case and the plaintiffs appealed. The Indiana Court of Appeals found that though the Indiana Constitution does not specifically list a right to privacy, it is included under its broader guarantees. And they found that the right of privacy includes the right to decide to terminate a pregnancy.

The state appealed and Wednesday's 4-1 ruling found that the groups opposed to the waiting period didn't prove that the wait was a "material burden."

But the court also declined, in a decision written by Justice Robert D. Rucker, to tackle the larger issue of privacy.

"We find it unnecessary to determine whether there is any right to privacy or abortion provided or protected by Indiana's Constitution ...," Rucker wrote.

See yesterday's ILB entry on the ruling here.

Posted by Marcia Oddi on Thursday, November 24, 2005
Posted to Ind. Sup.Ct. Decisions

Wednesday, November 23, 2005

Ind. Decisions - Transfer list for week ending November 25, 2005

Here is the Indiana Supreme Court's transfer list for the week ending November 25, 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 Wednesday, November 23, 2005
Posted to Indiana Transfer Lists

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

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending November 23, 2005. There are 21 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 Wednesday, November 23, 2005
Posted to NFP Lists

Environment - Beverly Shores/Town of Pines hire Ice Miller for appeal of IDEM transfer station permit

The Michigan City News-Dispatch reports today:

BEVERLY SHORES - The town of Beverly Shores agreed Monday night to join the town of Pines in securing an Indianapolis law firm to oppose a waste-transfer station on the far west side of LaPorte County near County Line Road.

Town Council member Grant Ireland motioned to join Pines as a full financial partner in filing a petition for an appeal of IDEM's decision to grant Sean Blieden of Great Lakes Transfer a permit to locate a waste-transfer station near County Line Road. * * *

Although Indiana Department of Environmental Management just last week approved Blieden's permit, Porter County officials say they will not permit Blieden to build a driveway from County Line Road to the facility. Officials also say they will not change the 10-ton weight limit for County Line Road.

Although the facility is to be located in LaPorte County, Porter County is responsible for County Line Road separating the two counties.

Cathi Murray, Pines Town Council president, told the Beverly Shores board an attorney from Ice Miller has said the cost for filing the petition for an appeal likely will be $5,000. The cost from there would increase according to the number of hours the attorney spends working on the case at the rate f $275 per hour, Murray reported.

Ice Miller is a large firm of more than 250 lawyers with offices in Indianapolis, Chicago and Washington, D.C.

Although the firm is experienced in a variety of legal issues, it is widely recognized for its work as bond counsel for large public-works building projects. * * *

Beverly Shores has little cash to spare for legal expenses, but Ireland favored seeking private donations.

At a recent meeting of the Association of Beverly Shores Residents, Ireland said residents seemed ready to put their money on the line to fight the location of the transfer station.

He said he would personally guarantee the initial $2,500 as Beverly Shores' share of the fees for filing the petition with IDEM. * * *

The Pines Town Council likely will approve hiring Ice Miller at its meeting tonight, Murray said.

Posted by Marcia Oddi on Wednesday, November 23, 2005
Posted to Environment

Ind. Courts - Supreme Court library to be closed for construction

The Supreme Court Law Library will be closed to the public from December 5th 2005 to January 11th 2006.

The major renovation project to replace electrical lighting and wiring in the Law Library is scheduled to begin Monday, December 5th 2005.

Posted by Marcia Oddi on Wednesday, November 23, 2005
Posted to Indiana Courts

Ind. Decisions - Two from Court of Appeals today, one involving allegations of abuse by priest, the other a probate matter

In Debra Tucker v. Indiana Roman Catholic Diocese of Lafayette, et al, Chief Judge Kirsch affirms the trial court's dismissal of Tucker's amended complaint for failure to state a claim pursuant to Indiana Trial Rule 12(B)(6), concluding:

Tucker claims that Metzger molested her as a child. The abuse Tucker suffered at the hands of Metzger, if as alleged, was extreme and outrageous. However, Tucker’s claims against the Diocese allege, without more, that the Diocese’s intentional actions constituted extreme and outrageous conduct. Tucker fails to allege, however, that it was the Diocese’s intent to emotionally harm Tucker. Tucker has again failed to state a claim upon which relief can be granted.
In Terry Baker v. Bert Baker, Pers. Rep. of Estate of James E. Baker, deceased, involving an interlocutory appeal from the probate court’s order denying Terry Baker's motion to dismiss for lack of personal jurisdiction, Judge Sharpnack affirms the lower court.

Posted by Marcia Oddi on Wednesday, November 23, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two other Supreme Court decisions today, one dealing with same-sex parents [Updated]

Krste Prentoski v. Five Star Painting, Inc. is a workers compensation appeal, affirms that "Indiana Code Section 22-3-3-27(c) and similarly worded predecessor statutes ... mean that the limitations period begins running on the last date “for which” compensation was paid rather than on some other date."

Dawn King v. S.B. (In re Parentage of A.B.) First for some background to today's decision. In this 11/27/04 ILB entry, I quote from an Indianapolis Star story about the Court of Appeals opinion in this same case, In Re: A.B. v. S.B. (11/24/04):

The appeals court overturned the ruling of Monroe Circuit Judge Kenneth G. Todd, who found Dawn King had no legal standing with the girl born to her former partner, Stephanie Benham, because King was not a biological parent. The child is 5 years old. * * *

King and Benham shared their home, lives and finances for nine years. Benham was impregnated with semen donated by King's brother, and King was present at the child's birth.

The little girl recognized both women as her mothers, calling King "Mama." And after the pair split in January 2002, King paid child support and had regular visits with the child until July 2003, when Benham stopped accepting the support and denied King visitation.

"I just want what any other parents wants -- a relationship with my child," said King, 35, Bloomington. She said she already has missed the child's first day of school and other milestone events. The child and Benham also live in Monroe County. * * *

The decision is likely to have an impact on future custody and child support cases, and issues such as access to health insurance and inheritance through the nonbiological parent, said [Courtney Joslin, an attorney with the National Center for Lesbian Rights in San Francisco] and [Fran Quigley, executive director of the Indiana Civil Liberties Union].

Previously in Indiana, the only way for same-sex partners to each attain legal parent status was through a "second-parent adoption," a costly undertaking that grants parental rights to a nonbiological parent. However, some judges in Indiana have refused to allow the second-parent adoptions for same-sex partners.

Fishers attorney Sean C. Lemieux, who represented King, said the case is about the rights of parents and children and was based on a state Supreme Court ruling involving a married heterosexual couple who had a child through artificial insemination. * * *

Lemieux said the court stopped short of setting a standard for what constitutes a nontraditional parenting partnership, something that will need to be resolved in the future.

"The decision sends the message that if you plan on bringing a child into this world through artificial insemination, there are certain rights and responsibilities not tied to marriage," he said. "What's going to be important for people in the future is to set out, ahead of time, what their intentions are, for everyone's protection."

Today the Indiana Supreme Court vacates that Court of Appeals decision in a 4-page opinion written by Justice Sullivan:
Dawn King seeks a judicial declaration that she is entitled to parenting time rights, child support obligations, and certain other parental rights and responsibilities with respect to a now six-year-old child, A.B. The trial court dismissed the lawsuit under the authority of Indiana Trial Rule 12(B)(6) for “failure to state a claim upon which relief may be granted.” The Court of Appeals reversed, holding that by virtue of her agreement with A.B.’s mother, King is a “legal parent.” In re Parentage of A.B., 818 N.E.2d 126, 132 (Ind. Ct. App. 2004). We grant transfer and thereby vacate the opinion of the Court of Appeals. Ind. Appellate Rule 58(A). * * *

As previously mentioned, we grant transfer, vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A). We also reverse the trial court’s dismissal of King’s complaint and remand this case to the trial court for further proceedings.

Boehm and Rucker, JJ., concur. Shepard, C.J., concurs with separate opinion. Dickson, J., dissents with separate opinion.

In short, the majority sends this case back to the beginning, citing procedural grounds, meaning in practical terms that years of litigation will be necessary before the case reaches this point again, if it in fact ever does. But it has not dismissed the action entirely.

Here is the whole of Chief Justice Shepard's concurring opinion:

I write separately only to highlight what the majority has already said about the limited nature of today’s ruling, which I see as far more modest than my friend Justice Dickson suggests. Whether any element of King’s claims will be legally sustainable re-mains an open question for resolution after a hearing on the merits.
And here is the beginning of Justice Dickson's 8-page dissent, objecting to the fact that the majority did not dismiss the case entirely:
The majority opinion today permits a declaratory judgment action to be pursued by a woman seeking to establish her “co-parentage” of a minor child conceived by artificial insemination and born to another woman during the two women’s relationship as domestic partners. I dissent, believing that the plaintiff’s action fails to state any claim upon which relief can be granted. Indiana Trial Rule 12(B)(6). I reach this conclusion for several reasons, chiefly the following: (1) permitting this proceeding to continue disregards Indiana’s adoption laws, particularly the statutory requirement for the mother’s consent to an adoption; (2) reinstating this declaratory judgment action raises grave questions regarding whether such device may be used by various other people, who are not natural parents of a child, to bypass our adoption laws and to intrude upon the lawful parental rights of others; and (3) advancing special policy interests that have not become well-established changes in society exceeds an appropriate exercise of common law jurisprudence.
He concludes:
Because I believe that the plaintiff’s action is precluded by existing statutes governing adoption, and that the judiciary serves best when it refrains from intruding into the legislature’s prerogative to determine public policy on social issues, I respectfully dissent.
[Updated] WISH-TV 8, Indianapolis, has this report, headed "Lesbian Parent Case to Go to Trial":
The Indiana Supreme Court has ruled that a Bloomington woman suing for parental rights to a child her former lesbian partner conceived through artificial insemination is entitled to take her case to trial.

Wednesday's 4-1 ruling by the court sends Dawn King's lawsuit back to a Monroe circuit court judge who ruled in March 2004 that she had no legal standing with the girl born to her former partner because King was not the child's biological parent.

The Indiana Court of Appeals reversed the trial court's ruling in November 2004 and ordered a trial after finding that King was a "legal parent" of the child. King's former partner, Stephanie Benham, appealed that ruling.

In Wednesday's decision, the state Supreme Court agreed with the appellate court in ordering the case to trial, although it cited a different legal precedent in its decision.

Indianapolis attorney Gary Welsh of Advance Indiana has posted this thoughtful analysis of the two rulings and their implications this afternoon. I would add the Court's action this week in Jane Doe, et al v. J. David Donahue (see ILB entry here) to his list.

Posted by Marcia Oddi on Wednesday, November 23, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Yet another story about Judge Pfaff's replacement in Elkhart Superior Court 1

Yes another story, but this one has a great photo of the new Judge Roberts -- perhaps taken at the BMV?

Posted by Marcia Oddi on Wednesday, November 23, 2005
Posted to

Ind. Decisions - Supreme Court upholds abortion waiting period

Clinic for Women v. Carl Brizzi (11/23/05)*

The majority opinion is written by Justice Rucker, with Shepard and Sullivan concurring. Justice Dickson concurs in the result with a separate opinion. Justice Boehm dissents with a separate opnion. Confusingly, each opinion is numbered separately - the majority opinion is 21 pages; the concurring opinion starts again at p. 1 and is 9 pages, and the dissent is 18 pages. The opinion totals 48 pages.

Justice Rucker writes:

The Indiana Legislature has passed a law that requires a woman seeking an abortion to give her informed consent prior to the procedure and, except in the case of a medical emergency, specifies that a physician (or other medical personnel) must “orally” and in her presence provide her with certain information at least 18 hours before the abortion is performed. The plaintiffs in this case contend that this law on its face violates the right to “liberty” set forth in Article I, Section 1, of the Indiana Constitution. We hold that this law is not unconstitutional because the plaintiffs cannot demonstrate that there are no set of circumstances under which the statute can be constitutionally applied. We further hold that even if the law were challenged as unconstitutional as applied in a particular case, the challenge would fail because the law does not impose a material burden on any right to privacy or abortion that may be provided or protected by Article I, Section 1.
Justice Dickson's opinion begins:
I would affirm the trial court's dismissal of the complaint, thus reaching the same out-come as the majority opinion, but for different reasons. The majority leaves open the question of whether Article 1, Section 1, of the Indiana Constitution should be interpreted to provide protec-tion for a right to abortion. I prefer this Court to address that question and to explicitly declare that the Indiana Constitution does not protect any alleged right to abortion. In addition, because the challenged statutory pre-abortion requirements not only discourage harm to fetal life, but also protect the health of pregnant women, particularly in light of the risks to women from post-abortion psychological harm, I am convinced that these requirements not only are a proper exer-cise of legislative power but also are in direct harmony with and furtherance of core values of Article 1, Section 1, of the Indiana Constitution, which declares the inalienable right of "life" and the institution of government for the "peace, safety, and well-being" of the people.
Justice Boehm's dissent begins:
For the reasons given below, I respectfully dissent. I believe the Court of Appeals correctly held that the inalienable right to liberty enshrined in Article I, Section 1 of the Indiana Bill of Rights includes the right of a woman to choose for herself whether to terminate her pregnancy, at least where there is no viable fetus or her health is at issue. I also believe the plaintiffs have alleged facts which, if they can be established, show that the statute in question imposes a material burden on the exercise of that right. Accordingly, I agree with the Court of Appeals that the trial court’s dismissal of the complaint in this case should be reversed and this case should be remanded for a trial on the merits of the plaintiffs’ claims.
Michele McNeil writes in a brief article for the Indianapolis Star website:
The Indiana Supreme Court today upheld a state law requiring women to wait 18 hours before having an abortion.

In a 4-1 decision released this morning, the justices said the law doesn't impose a "material burden" on any right to privacy or abortion. * * *

Supreme Court Justice Brent Dickson thought the court should go even further. "I prefer this Court . . . to explicitly declare that the Indiana Constitution does not protect any alleged right to abortion."

Justice Theodore Boehm was the lone vote to strike down the law. "Forcing someone to incur a substantial financial burden or forego altogether (the) exercise of the person's right to choose is surely a material burden," he wrote.

The Washington Post has an AP story by Deanna Martin. A quote:
"We're disappointed," said Fran Quigley, executive director of Indiana Civil Liberties Union. He said the law poses a financial burden for some women because it forces them to make two trips to a clinic that in many cases is not in their home county.

Quigley said his group would discuss with the abortion providers who filed the lawsuit whether to seek another hearing before the state Supreme Court, which has the final say in the matter because it concerns the state constitution.

Federal courts have upheld the 1995 law, which didn't go into effect until 2003 because of court challenges.

The state lawsuit, filed by abortion providers, was dismissed by a Marion County judge, but the Court of Appeals had ruled that they could continue their challenge.

Abortion counseling is required in 31 states, and 23 states also require a subsequent waiting period _ usually 24 hours, according to the Guttmacher Institute, a nonprofit group that researches reproductive health issues. Indiana is one of only six states that requires the counseling sessions to be conducted in person.

______________
*A copy of the opinion has now been posted at the usual opinions location. So now there are two, one on the main page of the Courts site -- that is the one cited at the beginning of this entry. The other on the Supreme Court opinions page. To add to the confusion, the version just posted on the opinions page is 49 pages, rather than the 48 pages of the earlier posted version.

Posted by Marcia Oddi on Wednesday, November 23, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Heirs argue that deed required land to be used for a public purpose

"New Albany, residents battle in court over land" is the heading to a story today by Ben Zion Hershberg in the Louisville Courier Journal. Some quotes:

Land given to New Albany 70 years ago for use as a public park or golf course should be returned to the donor's heirs because the deed requires it, a lawyer contended yesterday.

The nonprofit Community Housing Development Organization, in cooperation with the city, has proposed using the site for an affordable-housing subdivision.

The city hopes to use the value of the homes there to leverage federal funding for low-income housing.

But neighbors of the property, and the heirs of the donor, are challenging the plan in court.

"We have a gift from a citizen saying we have property to be used for a public purpose," lawyer David Lewis argued yesterday in Floyd Circuit Court before Special Judge Cecile Blau. "Now the city of New Albany wants to convert that to a private purpose" -- a subdivision.

Lewis said it's clear that in such a case the land "automatically reverts back" to the property owner or her heirs. * * *

Arguing for New Albany yesterday, City Attorney Shane Gibson contended that the language in Fawcett's deed is no longer in effect.

State government bought the land from the city in 1961 for construction of nearby Interstate 64, Gibson said. Such government action ends any claim that Fawcett's heirs could have to get the property back, he said.

The state gave the land back to the city when plans for the subdivision were being made.

The heirs might have a claim to some payment for the land, Gibson said, as they would if it were taken by government through eminent-domain powers.

But they haven't asked for any payment, he said. And based on several precedent-setting state and federal legal decisions, they can't get the property back, he said.

The dispute over the subdivision erupted more than a year ago.

Resident Rebecca Gardenour testified yesterday that it began after she read a news account saying the houses were being relocated from land in the path of the Floyd Memorial Hospital expansion to McLean Field, a public baseball field and park behind her house.

Here are two earlier ILB entries about this dispute, from 7/14/04 ("Question in New Albany about a 1935 deed") and from 4/29/05 ("Fate of subdivision turns on 1935 deed").

Posted by Marcia Oddi on Wednesday, November 23, 2005
Posted to Indiana Law

Environment - Oil firm loses pollution suit; Green gunk at NW Ind. Superfund site

"Oil firm loses pollution suit: Jury awards $120 million to Blue Island residents" is the headline to this story today in the Chicago Tribune. Some quotes:

A Cook County jury has awarded $120.1 million to Blue Island residents and former high school students on whose behalf a lawsuit was filed 10 years ago against the Clark Oil refinery, claiming its pollutants created a nuisance and health problems.

The verdict, handed down Monday, awards compensatory and punitive damages to some 6,000 residents who lived near the refinery from 1993 until it closed in January 2001.

The jury also awarded $100,000 to about 1,200 former students and staff from nearby Eisenhower High School affected by pollutants discharged from the plant in 1994. The discharge caused four dozen students to go to the hospital complaining of dizziness and breathing discomfort. * * *

Mary Ann Pohl, the plaintiffs' lead attorney, said the verdict was one of the largest involving a nuisance lawsuit against a refinery and called it a victory for all small communities across the country whose residents are "the victims of oil refineries that pollute." * * *

She said she had not heard from Premcor's attorneys on whether the verdict would be appealed and that it would be up to the courts to decide how the award is distributed. Since there are approximately 6,000 households splitting $120 million, an average of about $20,000--minus attorney fees and other costs to be determined by the court--could be handed out, she said. * * *

Monday's verdict stemmed from the suit filed initially by attorneys for Priscilla Rosolowski, an Eisenhower student, and more than two dozen other students and nearby residents. They claimed the release in October 1994 of nearly 10 tons of airborne grit after a power failure at the refinery temporarily affected their health.

The lawsuit evolved into a class-action suit involving three classes of plaintiffs: the Eisenhower students and faculty; parents of students affected by the 1994 incident; and the 6,000 households in an area between Kedzie and Hoyne Avenues from 119th to 135th Street. The latter contended the plant interfered with their rights to use and enjoy their property from October 1993 until it closed.

In the case of the parents, who were suing to recover costs they claimed to have incurred for their children's medical care, the jury ruled in favor of Premcor, Pohl said. Premcor argued it had adequately reimbursed the parents at the time of the incident.

The refinery had a long history of environmental troubles. Illinois Atty. Gen. Lisa Madigan sued Premcor last year seeking to force it to clean up soil and groundwater contaminants remaining on the site. That suit listed 64 incidents between 1992 and 2001 in which the refinery leaked gasoline, oil or dye into the ground.

"EPA tests mysterious green gunk: Substances unearthed during cleanup of Superfund site" is the headline to this story today by Steve Zabroski in the Munster (NW Indiana) Times. Some quotes:
HAMMOND | Cleanup workers have uncovered a mysterious fluorescent green liquid under several feet of soil at a north-side toxic site just south of Wolf Lake.

U.S. Environmental Protection Agency excavation crews began removing 20,000 cubic yards of polluted soil from the former Calumet Container Corp. property last month as part of a $1.7 million federal Superfund project.

But while digging up the southern end of the 11-acre site on 136th Street at the Indiana-Illinois border, workers discovered a large amount of brightly-colored fluid that shouldn't have been there. * * *

What is all that green liquid that seems to glow in the sunlight?

"That's what we'd like to know," Verneta Simon, EPA on-scene coordinator, said Tuesday.

Samples of the mystery fluid are being tested by the EPA to determine just what it is, so that the agency can decide what to do with it, Simon said.

"You don't see this every day," said Ronald Novak, executive director of the Hammond Department of Environmental Management, which has been working with EPA and IDEM on cleanup plans for the property.

Posted by Marcia Oddi on Wednesday, November 23, 2005
Posted to Environment

Ind. Gov't. - Implications of a 10-year, $1 billion, out-of-state contract

Last Friday the ILB posted an entry titled "Welfare contract may cost state $1 billion," that was based on an AP story by Ken Kusmer.

This morning the Fort Wayne Journal Gazette has an editorial on Gov. Daniels' "extreme makeover" for state government, including some remarks on the proposed new mega-contract:

The contract, expected to be the largest in the state’s history, will almost certainly go to an out-of-state company because no Hoosier corporation is in the position to handle such a massive project, according to the Associated Press. Texas recently awarded a five-year, $899 million contract to Bermuda-based Accenture LLP, which will operate call centers in place of state-operated eligibility offices. Cutting the number of county offices that now handle applications is one of Roob’s objectives – meaning a job loss for some of the 2,500 state workers who now hold those positions.

Vendors have been advised that the contract could be worth at least $1 billion, and Roob indicated it could be awarded for a 10-year term. That’s an alarmingly long term for a public works contract – it would overlap with the next two gubernatorial terms. Accountability for what could turn out to be a poor decision should be tied to the administration responsible for it. For all the finger-pointing Daniels and his top appointees have made at their Democratic predecessors in the past 11 months, that point should be obvious. [my emphasis]

Although I certainly quibble with terming this a "public works" contract, which it is not, rather than a contract for services and supplies, which it is, I do think that the editorial makes a very good point and in fact may supply the rationale for the state law that limits "contract for supplies" to no more than a four year period. Also notable is another, later, section of the same law that indicates that the General Assembly intended the term "supplies" in section 3 to encompass programs such as the electronic benefits transfer program, unless there was a specific exception (such as that set forth in section 8):
IC 5-22-17. Purchasing - Contracts.

IC 5-22-17-3. Contracts for supplies; time periods
[Note - recall that these headings are computer generated and are not part of the law itself]

Sec. 3. (a) This section does not apply to a discounted contractual arrangement for services or supplies funded through a designated leasing entity.
(b) Subject to subsections (c) through (e) and section 5 of this chapter, a contract for supplies may be entered into for a period not to exceed four (4) years.
(c) County and municipal hospitals may contract for the purchase of supplies for more than one (1) year but not more than five (5) years if the supplies are purchased under IC 5-22-7.
(d) The contract must specify that payment and performance obligations are subject to the appropriation and availability of funds.
(e) A political subdivision must have available a sufficient appropriation balance or an approved additional appropriation before a purchasing agent may award a contract.
As added by P.L.49-1997, SEC.1.

IC 5-22-17-8. Contract for supplies and services to implement EBT program [Note - ditto]

Sec. 8. (a) As used in this section, "division" refers to the division of family and children established by IC 12-13-1-1.
(b) As used in this section, "EBT program" refers to an electronic benefits transfer program.
(c) Notwithstanding section 3 of this chapter, the division may enter into a contract for supplies and services to implement an EBT program for an initial period not to exceed five (5) years. The division may renew the contract for any number of successive periods not to exceed two (2) years each.
As added by P.L.49-1997, SEC.1.

I'm also reminded that India's largest software company won a $15 million contract in 2004 to upgrade the processing of Indiana's unemployment claims, before it was retracted and the project was broken up into smaller pieces so as to expand the number of companies who could be eligible to participate. It seemed like a large contract, at the time.

Posted by Marcia Oddi on Wednesday, November 23, 2005
Posted to Indiana Government

Ind. Gov't - Cities offering broadband: Philadelphia as an example

Here is a quote from an Indianapolis Star story from the last session, dated 2/1/05, quoted in this ILB entry:

Cities across Indiana are fighting legislation that would thwart their efforts to offer public Internet and other data services. The proposal, House Bill 1148, aims to rein in the growing number of cities and towns seeking to build and offer data networks to businesses and residents. Telecommunications companies, led in Indiana by SBC Communications, say the legislation would safeguard taxpayer money and fair competition. * * *

Larger cities, including Philadelphia*, have moved forward with ambitious plans to provide some free wireless Internet access. Indianapolis is considering offering wireless Internet hubs in some public areas, though the services would be offered by a private company.

"Why should cities do this?" said Mark Cooper, director for the Consumer Federation of America in Washington. "Well, these are the highways of the 21st century."

Last evening the PBS Online NewsHour had a feature titled "Philadelphia Hopes to Provide Internet For Every Resident":
Terence Smith reports on how Philadelphia intends to become the first U.S. city of its size to have wireless broadband access available to everyone, regardless of income, at below-market prices

Philadelphia is moving toward becoming the first U.S. city of its size to extend broadband access to all its citizens, regardless of income, at below-market prices. City officials hope the project can help bridge divides created by income.

RealAudio is here. Check here later today for transcript.

Check also for another segment of the show, on the "Rebuilding Challenges of Katrina," with a panel incuding "William Hudnut, mayor of Chevy Chase, Md. and senior fellow at the Urban Land Institute."

Posted by Marcia Oddi on Wednesday, November 23, 2005
Posted to Indiana Government

Tuesday, November 22, 2005

Ind. Courts - "New judge appointed to Elkhart County Superior Court One"

"New judge appointed to Elkhart County Superior Court One" is the headline to this story, complete with photo of the new appointee, from WNDU-TV, South Bend.

Posted by Marcia Oddi on Tuesday, November 22, 2005
Posted to Indiana Courts

Ind. Courts - Gov. Daniels appoints two superior court judges: successors to Judge Pfaff in Elkhart County, and to Judge Guthrie in Jackson County

A press release today from the Governor's office:

Governor Mitch Daniels announced today the appointment of two county judges. These appointments will fill vacancies created by the resignation of elected judges.

Evan Roberts of Nappanee has been appointed judge of Elkhart Superior Court I. He succeeds Judge Benjamin Pfaff, who resigned on October 1. Roberts serves as a part-time deputy prosecuting attorney in Elkhart County and as judge advocate in the United States Marine Corps Reserve currently holding the rank of lieutenant colonel. Roberts is also managing member of the firm Rosenberg & Roberts, LLC. He received his undergraduate degree from Purdue University, his law degree from John Marshall Law School, and a Master of Laws degree from Georgetown University Law Center. Roberts’ appointment is effective immediately. [Governor's office corrected version: Roberts’ appointment will be effective December 30.]

Bruce Markel of Brownstown has been appointed judge of Jackson Superior Court. He succeeds Judge Frank Guthrie, who is resigning effective December 3. Markel has worked in private practice for 31 years and is currently a partner in the firm Markel, Markel, Lambring & MacTavish. He received his undergraduate degree from the University of North Carolina and his law degree from the University of Louisville. Markel’s appointment will be effective December 30. [Governor's office corrected version: Markel’s appointment will be effective January 1.]

“Evan Roberts and Bruce Markel are both highly talented jurists who bring to the bench impressive qualifications and an in-depth knowledge of the law. I’m confident they will serve the citizens of Elkhart County and Jackson County with distinction,” said Daniels.

[More] An earlier story today in the Elkhart Truth reports on the Supreme Court's order yesterday (see ILB entry) accepting Pfaff's resignation, and reporting that "Gov. Mitch Daniels is close to naming Pfaff's replacement for Elkhart Superior Court 1."

Posted by Marcia Oddi on Tuesday, November 22, 2005
Posted to Indiana Courts

Ind. Decisions - "Judge orders historic home to be repaired "

Ben Zion Hershberg writes today in the Louisville Courier Journal, in a story headlined "Judge orders historic home to be repaired," that:

A judge has ruled that a legal agreement remains in effect requiring the exterior of a historic home in Georgetown to be maintained -- despite an extensive fire there on Oct. 31.

The Historic Landmarks Foundation of Indiana holds a preservation easement requiring the maintenance of the home's façade. * * *

By ruling that the fire did not cause "major destruction," Special Judge Daniel Donahue essentially required that its exterior be repaired by owners Lynda Riggle Meyer and Charles Meyer under the terms of the preservation easement. * * *

The home, known as the Yenowine-Nichols-Collins House, is on the National Register of Historic Places. Expert witnesses for the foundation said at last week's hearing that the most important part of the house -- much of its two-story front section, which was built in the 1830s -- could be stabilized and repaired, Sekula said.

Donahue ruled Aug. 4 that the Meyers had to repair the home's exterior, based on the preservation easement that Mabelle Collins had entered into with the foundation in 1983. It requires the foundation to regularly inspect the house and see that the family homestead is preserved "in perpetuity." * * *

Donahue had ordered repairs to begin by Sept. 1. At the Meyers' request, he gave them until Oct. 17 to get bids for the work. Repairs had not begun at the time of the fire, which firefighters said required 30 to 40 minutes to extinguish. Investigators said it was caused by arson, but no arrests have been made.

Paul Diebold, senior architectural historian with the Indiana Department of Natural Resources, said he visited the house Nov. 7 at the request of the foundation and because of his concerns about the condition of a building on the National Register of Historic Places. * * *

Diebold said he believes it's important to put a new roof on the house within a couple of weeks and board up any openings to keep moisture out, especially with winter on its way.

He said tax-credit programs are available to help owners, if the building is put into use as an office, or grants are available if it's restored by a nonprofit organization.

It's not clear when any steps will be taken to stabilize the house. Donahue has scheduled a hearing Jan. 6 on a motion by the Meyers' lawyers to correct errors that, they argue, he made in his first ruling.

Sekula said he doesn't know whether the foundation will take additional legal action to get the house stabilized quickly.

Posted by Marcia Oddi on Tuesday, November 22, 2005
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - 7th Circuit rules on plea waivers

In Wayne P. Roberts v. U.S.A., an appeal from the N.D. Ind., Judge Sharp, Judge Wood writes:
Although the ultimate disposition of this case is straightforward, we have observed some confusion with respect to the appropriate procedures for enforcing plea waivers. In Roberts’s case, the government initially buried its request for dismissal in a jurisdictional memorandum, the ostensible purpose of which is to assure the court that the petitioner’s action is not subject to the pre-approval mechanism of 28 U.S.C. § 2244(b). At that stage, the record did not contain a copy of the plea agreement, nor did the government do anything to cure that omission. Nothing, as far as we can tell, actually quoted the waiver language we have reproduced above. Because waivers differ in their scope, we found it necessary to order additional briefing on the question, to ensure that Roberts’s waiver indeed barred his motion.

In the future, when the government wishes to enforce a waiver, the better procedure would be to file a separate motion to dismiss the § 2255 proceeding on this ground, in which it specifically calls the court’s attention to the waiver. The plea agreement should be attached to the motion, so that the court is in a position to ensure that it applies to the case at hand. We have never been reluctant to hold criminal defendants to their promises. * * * On the other hand, there have been cases in which we have rejected an argument that a waiver of appeal or collateral relief bars an action. * * * We can accomplish the goal of enforcing waivers appropriately only if the government clearly alerts the court to the existence of the waiver and furnishes the necessary information about its exact terms.

Posted by Marcia Oddi on Tuesday, November 22, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues a variety of opinions today

The Court of Appeals has issued eight decisions today, including Porter Development, LLC and Eagle Services Corporation v. First National Bank of Valparaiso, where Judge Riley, writing for the majority, and Judge Mathias, in dissenting in part, disagree over the meaning of the term "entitled" in IC 28-9-5-3:

If a depository financial institution pays the funds to the court, the depository financial institution is entitled to recover and collect the costs and expenses, including attorney’s fees, incurred by the depository financial institution in the interpleader action.
In Ric Floyd and Sue Floyd v. John M. Inskeep and Deb Inskeep, the Court, in a decision written by Judge Bailey, reverses a trial court judgment quieting title in favor of Appellees-Plaintiffs John M. and Deb Inskeep, in a boundary line dispute.

Two other civil decisions today involve family trusts and child support.

The Court issued four criminal law rulings. In Agnes Murphy v. State of Indiana, Judge May writes:

Agnes Murphy was charged with unauthorized receipt from a voter of a ballot prepared by the voter for voting, a Class D felony, after she accepted a ballot in a sealed envelope from an absentee voter and put it in a mailbox. She moved to dismiss the charge on the ground the statute under which she was charged is unconstitutional, and she brings an interlocutory appeal of the denial of her motion. Murphy raises two issues on appeal, which we restate as:

1. Whether the statutory prohibition of unauthorized receipt from a voter of a ballot prepared by the voter for voting is void for vagueness and/or overbreadth; and

2. Whether receipt of a sealed envelope from an absentee voter and delivery of the sealed envelope to a mailbox amounts to “unauthorized receipt . . . of a ballot.”

The State asserts Murphy does not have standing to challenge the statute. We agree and accordingly affirm.

Posted by Marcia Oddi on Tuesday, November 22, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court rules on future income as a divisible marital asset

In Terry Severs v. Majorie Severs, issued today, Justice Boehm writes:

We hold that future disability income is a divisible marital asset in a dissolution only if the benefits are contractual rights of the beneficiary and were voluntarily purchased with marital assets. Payroll taxes do not constitute voluntary payments for this purpose. We also hold that the antiassignment provision of the Social Security Act prevents state courts from assigning so-cial security benefits in a dissolution decree.

Posted by Marcia Oddi on Tuesday, November 22, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on 7th Circuit ruling yesterday

For interesting commentary on Judge Easterbrook's decision yesterday in Jane Doe v. Jason Smith (ILB entry here), don't miss Howard Bashman's entries here and here, and for sure don't miss this post by University of Chicago law professor Lior Strahilevitz, titled "Seventh Circuit Adds Insult to Injury in Teen Sex Tape Case."

Posted by Marcia Oddi on Tuesday, November 22, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Recent billboard ruling may help Crown Point "big box" position

A story today in the Munster (NW Indiana) Times by Allison Fashek reports:

CROWN POINT | A recent Indiana Supreme Court ruling could bolster Crown Point's position should it face a legal challenge on a recently approved ordinance making it more difficult for big-box stores to come to the city.

The case revolves around Pinnacle Media LLC's attempts in recent years to erect 10 billboards in Indianapolis. The company argued a change in an Indianapolis zoning ordinance concerning billboard location permits didn't apply to its plans.

But the court ruled Nov. 3 that because "no construction or other work that gave Pinnacle a vested interest in the billboard project had begun on the billboards at the time of the ordinance change, the ordinance change did apply to the 10 billboards."

Crown Point City Attorney Rich Wolter said Monday the city reads the case to mean the Plan Commission and the City Council can impose development restrictions or requirements up to the time construction on a project starts. * * *

Last week the City Council approved an ordinance amending its zoning code to force retailers wanting to build stores 75,000 square feet and over in B-1, B-2 and B-3 business district zones to go before the Board of Zoning Appeals and the City Council for a special use.

The ordinance threatens the viability of Lauth Property Group's proposal to build two anchor stores at the intersection of Interstate 65 and U.S. 231, one 203,000 square feet and another 88,400 square feet. One of the stores could be a Wal-Mart.

Lauth has been appearing before the Plan Commission seeking site plan approval for the project since September, well before the City Council passed the zoning code amendment.

The way the city reads the ruling, Lauth would have had to already start construction to fight the new ordinance, Wolter said.

For more on the Crown Point ordinance, begin with these 11/17/05 and 11/16/05 ILB entries. Re the Pinnacle decision, see these ILB entries from 11/4/05, 11/10/05 and 11/15/05.

Posted by Marcia Oddi on Tuesday, November 22, 2005
Posted to Indiana Law

Ind. Decisions - "Prison policy on sex-offender visitation to stand "

An AP story today in the Louisville Courier Journal does nothing to add further clarification to the Supreme Court's order yesterday (2nd item) "vacating prior order granting transfer" in Doe v. Donahue. Some quotes from the AP:

The Indiana Supreme Court said yesterday that it would not rule on a challenge to a state prison policy prohibiting virtually all visitation between minors and sex offenders. The policy thus will stand.

The court issued the one-page order 12 days after it heard oral arguments in a class-action lawsuit filed by the Indiana Civil Liberties Union.

The order, signed by Chief Justice Randall Shepard, said the court's decision to hear the challenge of a state appeals court ruling upholding the policy was "improvidently granted." But it provided no elaboration.

Posted by Marcia Oddi on Tuesday, November 22, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Blackford officials, state end farm feud"

"Blackford officials, state end farm feud" is the headline to a story today in the Muncie Star-Press about how:

Andrew Miller, director of the Indiana State Department of Agriculture, attended the Blackford County commissioners meeting on Monday in an attempt to mend fences after his office had earlier released correspondence that might have suggested Blackford County was anti-agriculture.

The correspondence had been released shortly after a proposed confined animal feeding operation was denied a zoning permit.

The county's three commissioners --two of whom are farmers -- assured Miller emphatically that Blackford County is indeed farmer-friendly.

"A simple five-minute phone call to one of us would have prevented all of this," Commissioner Fred Walker told Miller. * * *

After Monday's meeting, Miller said his department had "moderated our tactics and the meeting this morning was part of that."

After the meeting, Walker said he hoped that Miller "understands where we're coming from, that he knows we are not opposed to CAFOs in this county. But we have issues on locations of those CAFOs.

"The commissioners have been very supportive of agriculture in the past and will continue to be in the future. But we realize that issues will come up in the future that have to be addressed with discussion from both sides."

Posted by Marcia Oddi on Tuesday, November 22, 2005
Posted to Environment | Indiana Government | Indiana economic development

Ind. Law - More on advocates seek to revive Marion Co. gay-bias ban

"Ordinance banning gay bias revived: Democratic sponsor already has 12 votes lined up for measure" is the headline to this story by Brendan O'Shaughnessy on the front of today's Indianapolis Star local section. It follows on his story from Sept. 19 headlined "Advocates seek to revive proposed gay-bias ban." (For background see this ILB entry from 4/26/05.) Some quotes from today's story:

Seven months after a proposal to ban discrimination against gays in the workplace and housing market failed to pass the City-County Council, supporters reintroduced the measure Monday night. * * *

Jackie Nytes, the Democrat who also sponsored the first gay-rights effort in April, now has 12 sponsors, including herself. She would need three more votes to win a 15-vote majority in the 29-member council and hopes to land those through steady lobbying over the next few weeks. "There's so much support for it in the community, I'm surprised some council members are hesitating," Nytes said, adding she has collected 1,200 letters backing the plan.

The same proposal to ban discrimination based on sexual orientation or identity failed in April on an 18-11 vote that crossed party lines.

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

City and state employee hiring policies already include such protections, and the ordinance would extend the same to any businesses with six or more employees, excluding religious institutions and certain nonprofits. In Indiana, Bloomington, Michigan City, West Lafayette and Fort Wayne already have passed similar ordinances.

Posted by Marcia Oddi on Tuesday, November 22, 2005
Posted to Indiana Law

Monday, November 21, 2005

Ind. Decisions - "This case presents an unfortunate and wholly avoidable primer on how not to litigate a case"

A reader has pointed me to this ruling by federal Magistrate Tim A. Baker, dated 11/9/05, but just posted on the SD Ind. website. The case is Sullen v Midwest ISO. Some quotes from the 10-page ruling:

This case presents an unfortunate and wholly avoidable primer on how not to litigate a case. This saga began on October 15, 2004, when Plaintiff’s counsel, Derrick Eley, failed to attend the initial pretrial conference as ordered, and failed to provide any input into the required Case Management Plan. (“CMP”)[ftnote 1] Over the course of this litigation, the Court has issued numerous orders noting Eley’s various missteps. [See Docket Nos. 17, 24, 45, 54, 67 and entries of September 22, 2004 and December 2, 2004 in connection with Docket Nos. 12 and 25.] Most recently, Eley failed to properly respond to Defendant’s October 28, 2004 discovery requests despite a June 20, 2005 Court order granting Defendant’s motion to compel and ordering Eley to fully respond. [Docket No. 45.]

As a result of Eley’s conduct, Defendant sought sanctions, including dismissal of this action. [Docket Nos. 48, 51.] The District Judge subsequently requested that the Magistrate Judge issue a Report and Recommendation on what sanctions, if any, should be imposed against the Plaintiff and/or his counsel for their purported failure to comply with the Court’s order of June 20, 2005. [Docket No. 50.]

While dismissal might be appropriate under these circumstances, the Court is reluctant to punish the Plaintiff with dismissal for the errors of his counsel. However, Defendant should not have to incur attorney’s fees necessitated by Eley’s utter disregard of his professional obligations. Accordingly, the Magistrate Judge recommends that Defendant’s request for sanctions be granted to the extent that Eley be required to reimburse the Defendant $2,500. In addition, the Magistrate Judge recommends that Eley be required to undertake certain other steps, as detailed below, in an effort to avoid a similar, future outcome.
___
[1] This is just one of many such sagas in which Plaintiff’s counsel has found himself. See e.g., Phillips v. Ramco, Inc., 1:03-cv-0391-RLY-WTL (show cause order issued as a result of Eley’s failure to include client in settlement conference); Killibrew v. St. Joseph Hospital & Health Center, Inc., 1:03-cv-1497-DFH-VSS (case dismissed when Eley neglected to comply with order to file an amended complaint by a date certain); Haskins v. Federal Express, 1:03-cv-1720-DFH-TAB (case dismissed where Eley neither filed a response to defendant’s summary judgment motion nor timely requested an enlargement of deadline and where Eley did not abide by discovery deadline).

Posted by Marcia Oddi on Monday, November 21, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court posts (1) order accepting Pfaff resignation; and (2) order retracting transfer grant in sex offender visitation by minors case

Two orders were posted on the Supreme Court website late today.

In the Matter of L. Benjamin Pfaff is labeled "Published Order Accepting Resignation." The Court ordered the following:

L. Benjamin Pfaff’s resignation from office is accepted and is effective as of today;

Respondent is permanently prohibited from seeking or accepting any judicial office and from serving in any judicial capacity in Indiana;

Costs and expenses of this action are assessed against Respondent and will be set forth in a separate order;

Judge Pfaff’s suspension from the practice of law in Indiana shall remain in effect until the costs assessed against him in this matter are paid in full as acknowledged by a notice of payment in full filed by the Supreme Court Administrator with the Clerk of this Court; and

This order constitutes a finding of professional discipline that would be required to be reported to other jurisdictions in which Respondent might seek admission as a lawyer.

Jane Doe, et al v. J. David Donahue, also issued today, is labeled "Published Order Vacating Prior Order Granting Transfer." It is a one-page document. Some quotes:
By order dated September 28, 2005, the Court granted a petition seeking transfer of jurisdiction of this appeal from the Court of Appeals to this Court. After further review, including oral argument, a majority of the Court has determined that transfer was improvidently granted. Accordingly, the order granting transfer is VACATED and transfer is DENIED. The Court of Appeals opinion reported as Doe v. Donahue, 829 N.E.2d 99 (Ind. Ct. App. 2005), is no longer vacated under Appellate Rule 58(A) and is reinstated as Court of Appeals precedent. Pursuant to Appellate Rule 58(B), this appeal is at an end. * * *

All Justices concur, except Boehm and Rucker, JJ., who believe transfer was properly granted.

Here is the 25-page Court of Appeals opinion in Doe v. Donahue. Donahue is the Commissioner of the Department of Corrections. See this ILB entry from 11/10/05 for more information. It includes this quote from a Mike Smith AP story:
A state prison policy violates Indiana law and the U.S. Constitution by prohibiting virtually all visitation between minors and child sex offenders, the Indiana Civil Liberties Union told the state Supreme Court yesterday.
The result here? Rather than affirming the Court of Appeals decision in favor of the state policy, the Court retracted its grant of transfer, perhaps so as not to establish a precedent.

Posted by Marcia Oddi on Monday, November 21, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending November 18, 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 November 18, 2005. There are 38 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 Monday, November 21, 2005
Posted to NFP Lists

Ind. Courts - South Bend "jury pool snafu tied to vendor"

The South Bend Tribune reports today in a lengthy story that begins:

The potential for disaster loomed large when St. Joseph County was unable to generate jury pools for several days earlier this month, Chief Superior Court Judge John M. Marnocha said. As a result, Marnocha intends to look "as soon as possible" at new suppliers for jury selection software.

Luckily, the disruption was kept to a minimum, although a few criminal jury trials were rescheduled. Some people were sent notices to report for jury duty, called off, then called and told to come on a different day. Potential jurors were told to come in on a different date than their first notice when a couple of jury pools were recycled, Marnocha said. When one judge's trial did not go forward, the list was handed to another judge with a scheduled trial.

So what happened? Marnocha said he was told it was a mix of a payment issue with the vendor, along with server and software update problems. "I definitely was not very happy about it," Marnocha said.

The matter was resolved within a few days after several e-mails were sent among county officials and a county attorney contacted the company, Election Systems & Software of Omaha, Neb. But it never should have happened, according to county Commissioner Steve Ross, D-District 2.

Posted by Marcia Oddi on Monday, November 21, 2005
Posted to Indiana Courts

Ind. Law - 7th Circuit issues decision on pleading of unauthorized interception, and on anonymous suits

In Jane Doe v. Jason Smith, an appeal from the CD Ill. decided today, Judge Easterbrook writes:

When she was 16, Jane Doe (not her real name) engaged in consensual sexual relations with Jason Smith, who was a year older. Smith had set up a hidden video camera and recorded the two in bed. After the couple stopped dating, Smith circulated the tape at their high school. At oral argument Doe’s counsel maintained that Smith distributed copies by email and that at least one of the recipients posted the data on the Internet. Doe filed this suit seeking compensation for the injury caused by this invasion of her privacy. Doe and Smith are citizens of Illinois, so the litigation is in federal court only because one of her claims is that the video recording is an unauthorized interception and its disclosure forbidden by the federal wiretapping statute, 18 U.S.C. §§ 2510-22. Section 2520 creates a private right of action for damages. Yet the district court dismissed the suit under Fed. R. Civ. P. 12(b)(6), ruling that Doe’s complaint is defective because it does not allege in so many words that the recording was an “interception” within the meaning of §2510(4).

The complaint does not maintain that Smith “intercepted” anything. Yet pleadings in federal court need not allege facts corresponding to each “element” of a statute. * * *

On remand, the district judge must revisit the question whether the plaintiff should be allowed to proceed anonymously. The judge granted her application to do so without discussing this circuit’s decisions, which disfavor anonymous litigation. * * * Plaintiff was a minor when the recording occurred but is an adult today. She has denied Smith the shelter of anonymity—yet it is Smith, and not the plaintiff, who faces disgrace if the complaint’s allegations can be substantiated. And if the complaint’s allegations are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability.

Everyone at the high school who saw the recording already knows who “Doe” is, and most people acquainted with Smith could find out whether or not they had seen the recording. (Their dating relationship was no secret.) Now perhaps anonymity still could be justified if the tape has been circulated more widely (as counsel asserted at oral argument), and disclosure would allow strangers to identify the person in the recording and thus add to her humiliation. That question should be explored in the district court—and, if the judge decides that anonymous litigation is inappropriate, the plaintiff should be allowed to dismiss the suit in lieu of revealing her name.

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Monday, November 21, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - House to put Ways & Means Committee on Internet; implications

The Indianapolis Star has posted a report this morning that:

Hoosiers who want to see more legislative action in the 2006 session will be able to watch hearings of the powerful House Ways and Means committee over the Internet.
House Speaker Brian Bosma, R-Indianapolis, announced today that the committee's room on the fourth floor of the Statehouse will be equipped with cameras and microphones to allow Hoosiers to watch and hear the debate through www.in.gov/legislative.

The 2005 legislative session was the first year for the proceedings on the House floor to be video broadcast over the Web. That feature also will be improved this year to allow observers to see roll call votes on bills and the names of legislators who are speaking.

In addition, one other committee room will have hearings broadcast over the Internet -- committees will rotate through this same basement committee room.
Bosma said the House is taking an important step in improving public access by broadcasting hearings of the House Ways and Means committee, which is in charge of setting tax and spending policies for the state.

During budget years, this committee decides how to divvy up billions of state dollars between schools, health care programs and government agencies. The committee room only fits a couple dozen spectators, is usually packed with lobbyists and the media, and is often standing-room only, making it hard for the general public to catch the action.

In addition, "[Rep.] Espich will hold three meetings in December on House Bill 1001, a property tax relief package for homeowners. He plans to introduce this bill tomorrow, which is Organization Day. The hearings will be Dec. 8 at 1 p.m., Dec. 15 at 9:30 a.m. and Dec. 22 at 1 p.m."

This is all very good news. During the summer, at least one interim study committee hearing (on the BMV) was broadcast over the Internet. At the time I thought -- I could get used to that real quick.

The House also archives its session videos, which makes them much more useful and valuable. For one thing, citizens can watch in the evenings or on the weekend. To illustrate: here is the last session. We can only hope that the House maintains this archive, perhaps as a supplement to the Journal. Or as a DVD.

The same goes for the new videos of the Ways & Means meetings, and hopefully more committees will follow.

The Indiana Senate is in danger of lagging way behind here. For one thing, it did not archive its videos during the last session (or if it did, it did not make them available online). This means that the citizen or student who cannot get away from work or school to watch the General Assembly cannot do it over the Internet either, except for the times the Senate is meeting in the late afternoon or evening. And there is no indication thus far that it will extend internet coverage to its committees.

Posted by Marcia Oddi on Monday, November 21, 2005
Posted to Indiana Government

Ind. Decisions - Loss of consortium, debt cancellation are the focus of today's Court of Appeals decisions

In Keith Morgan, et al v. Columbus McKinnon Corp., Judge Baker writes:

Keith A. Morgan (Morgan) and Tricia L. Morgan appeal the trial court’s order granting summary judgment in favor of appellee-plaintiff Horner Electric, Inc.1 Specifically, the Morgans assert that the trial court erred in finding that the statute of limitations had run on the Morgans’ claim against Horner alleging negligence and loss of consortium. Finding that Morgan’s symptoms were of a kind that would cause a person of reasonable diligence to take action that would lead to the discovery of his cause of action, we affirm the judgment of the trial court. * * *

But here, there was no fraudulent concealment of information. On June 25, 2001, a month after the accident, Horner inspected the hoist. Its report to Manville states, “It was noted that control cord on hoist had been pulled out. The ground connection was not attached. This appears to be reason why the user had been shocked.” Appellant’s App. p. 71. Morgan concedes that he “suspected that problems with the control cord may have caused or contributed to the electrical shock incident of May 24, 2001. . . .” He could easily have confirmed this suspicion at any point following the date of Horner’s report to Manville. Yet he waited until May 13, 2003—eleven days before the statute of limitations presumptively ran out—to file his claim. To accept Morgan’s argument would allow plaintiffs to effectively double the time in which they can bring any claim by waiting until the last minute to file and then asserting that they could not have known whom to sue until they commenced discovery. We will not eviscerate the statute of limitations in that way.

In sum, we find no error in the trial court’s grant of summary judgment in favor of Horner. Morgan’s symptoms were apparent and persistent from the time of the accident such that they would cause a person of reasonable diligence to take action that would lead to the discovery of his cause of action. The judgment of the trial court is affirmed.

MATHIAS, J., concurs.
RILEY, J., dissents with opinion.

I respectfully dissent. The trial court erred in granting summary judgment to Horner Electric, Inc. As the majority opinion appropriately points out the statute of limitations begins “to run from the date the plaintiff knew or should have discovered that she (he) suffered an injury or impingement and that it was caused by the product or act of another.” Degussa Corp. v. Mullens, 744 N.E.2d at 410. Morgan was first diagnosed with anxiety disorder on October 30, 2001. * * *

Morgan did exercise ordinary diligence in following his doctor’s orders and did timely pursue a more specific diagnosis for his condition. I would reverse the entry of summary judgment and find that the claim against Horner did not violate the statute of limitations.

In Phillip A. Leonard v. Old National Bank Corp., Judge Baker writes:
Appellant-plaintiff Phillip A. Leonard appeals the trial court’s judgment in favor of appellee-defendant Old National Bank Corporation, f/k/a People’s Loan & Trust Bank (Bank). Specifically, Leonard asserts that the trial court erred in finding that the Bank did not intend to cancel a debt for which Leonard was a guarantor. Finding that it was not clearly erroneous for the court to determine that Form 1099-C, as an informational filing, did not operate to cancel the debt, we affirm the judgment of the trial court.

Posted by Marcia Oddi on Monday, November 21, 2005
Posted to Ind. App.Ct. Decisions

Environment - "EPA should keep air quality standards in place for Lake and Porter counties"; Ship Harbor Cleanup Delayed; Fernald waste cleanup

Responding to stories earlier this month that the Governor (as reported in the Munster (NW Indiana) Times) has "announced plans to petition the federal government to change the ground-level ozone air quality designation for Lake and Porter counties to attainment, which means the area is meeting Clean Air Act standards," the Indianapolis Star editorializes today that "Air quality knows no boundaries." Some quotes:

Gov. EPA should keep air quality standards in place for Lake and Porter counties.

Mitch Daniels has asked the U.S. Environmental Protection Agency to release Lake and Porter counties from new federal ozone standards on the theory that their pollution mostly comes from Chicago.

It's understandable why Daniels wants the standards relaxed. Economic development can be curtailed in counties with high levels of ozone or soot. Given the prevailing winds and their proximity to Chicago, it is possible that Lake and Porter counties, which finally had cleaned up their air enough to comply with older EPA air standards, may never meet the tougher new ones.

But even without Chicago's pollution, Lake and Porter counties have enough local smokestack industries and traffic to generate plenty of pollution. Some of their highest readings come on hot summer days when the wind blows from the south -- not from Chicago. Neighboring LaPorte, Elkhart and St. Joseph counties also violate the new standards for reasons that may have little to do with Chicago.

Pollution doesn't stop at a county or state border. That's why Hamilton County has some of Central Indiana's highest ozone readings, despite little smokestack industry or power plants. It's a regional problem that demands regional solutions.

"Toxic sediment dredging in East Chicago delayed" is the headline to this story in the Munster (NW Indiana) Times today. Some quotes:
EAST CHICAGO | The first shovels of polluted mud likely won't be removed from the Indiana Harbor and Ship Canal in 2007 after all.

With construction work on a confined disposal facility for the estimated 4.8 million cubic yards of contaminated sediment to be dredged from the waterway shut down for the winter, federal agencies responsible for the project are adjusting their timetable.

"Work on the operations plan and dredging schedule is under way," said Joanne Milo, U.S. Army Corps of Engineers project manager.

Groundwater at the disposal site west of Indianapolis Boulevard and just north of Central High School must first be lowered to prevent any of the dredged material -- considered among the most polluted in the Great Lakes -- from escaping into the surrounding area.

[More] From today's Cincinnati Enquirer, a story headlined "Fernald waste cleanup progressing: Key step reaches halfway point." A quote:
The removal and disposal of the so-called silos waste - which got its name from the two concrete storage "silos" that held it for more than 50 years, before it was moved into the steel tanks earlier this year - are the last major hurdles in completing the $4.4 billion site cleanup that started a decade ago. The waste is the ore debris and toxic chemicals used to melt the ore.

The Fernald cleanup goes far beyond silos waste, and includes 1,050 acres of contaminated soil, an underground lake of spoiled drinking water and dozens of buildings to raze before the rubble and soil are hauled away.

But no other project at Fernald has had more problems, or presented the level of risk to workers and the public, as the silos project.

Posted by Marcia Oddi on Monday, November 21, 2005
Posted to Environment

Ind. Law - Ice Miller featured by Ind'pls Star as "A power behind public projects"

"A power behind public projects: Ice Miller earns renown -- and hefty legal fees -- on jobs such as stadium and airport terminal": is the headline to a front-page story in this morning's Indianapolis Star by Theodore Kim and Michele McNeil. A quote:

From its start in 1910, the firm has followed a lucrative model: tap the obscure niche industry of public financing and cultivate bipartisan ties.

Founder Frederick E. Matson, a former Republican Senate president pro tempore and chief counsel to the city of Indianapolis, prided himself on knowing the name of every top politician, regardless of party.

The two attorneys who led the firm into the modern era -- Harry T. Ice and Merle Miller -- might be seen as reflections of Matson: Ice, named a partner in 1932, was a staunch conservative; Miller, named a partner in 1940, helped create the left-leaning Indiana Civil Liberties Union.

The firm helped expand the bond market -- and its own business -- in 1947 by taking part in the drafting of legislation to allow school districts to finance their construction through bonds. Eight years later, the firm provided the legal services behind the second-largest bond transaction in U.S. history at the time: the Indiana Toll Road.

The firm has evolved from a tiny collection of municipal bond lawyers into a legal powerhouse with 225 attorneys and offices in Chicago, Washington, D.C., and Naperville, Ill.

Ice Miller is stocked with prominent Republicans and Democrats to this day -- party fundraisers and advisers, former aides to Govs. Frank O'Bannon and Robert Orr. Harry Gonso, chief of staff to Gov. Mitch Daniels, was an Ice Miller attorney.

The story includes a side-bar on the Colts Stadium and new Indianapolis Airport Midfield Terminal, two projects in which Ice Miller is playing a major role. Here is a link to the Ice Miller website.

Unfortunately the Star's web version of the story does not include one of the most interesting features of the story -- a graphic including a list of the fees for legal services paid by the two projects to various local law firms during the period from Jan. 2003 to Oct. 2005. I'll try to post that here later. Meanwhile, from WTHR Eyewitness News:

Documents obtained by WTHR and the Indianapolis Star show so far legal fees and expenses related to the stadium have exceeded $3 million. Those fees have covered such things as financing, contracts and real estate transactions.

In terms of who's scored the most? So far eight firms have performed legal work on behalf of the city and state.

Records show Binghman McHale, hired by the city two years ago, pulling in the most - just over one million dollars.

Ice Miller, hired by the state and on the job since April is next, earning nearly $850-thousand dollars through the end of August.

Barnes and Thornburg, working for the Indiana Finance Authority, follows, paid almost $450-thousand, with Baker and Daniels, on the city payroll, not far behind.

As for what attorney's are fielding by the hour? Documents show Ice Miller, the firm hired by the Stadium Authority, earning between $155 and $395 an hour, minus a 15% discount.

Obviously the bulk of legal costs come at the start of the project, but the state will continue to pay up at least until the first game plays out here.

Posted by Marcia Oddi on Monday, November 21, 2005
Posted to Indiana Law

Sunday, November 20, 2005

Law - Federal Judge Barker: "The rules of the road have changed in no inconsiderable way."

"Disparity grows in penalties for execs: Changes in sentencing rules spark variations in prison terms for white-collar criminals." That is the headline to this very long story by Greg Burns in today's Chicago Tribune. Federal Judge Sarah Evans Barker's recent sentencing of 63-year-old David Heath Swanson is a major focus. Some quotes:

Unless he is incarcerated for a very long time, Swanson will return to a life of crime, Barker said earlier this month, as she imposed a 12 1/2-year prison sentence. "He would go right back to it. He knows how to do it."

Mafia don? Drug kingpin? No, CEO.

Swanson was among the first corporate chief executives convicted in the recent government crackdown on white-collar crime.

Like most prominent business figures brought to justice, Swanson is a non-violent first-time offender, a University of Chicago and Harvard graduate who headed several agribusiness companies before he got caught looting one.

Now he is a prime example of a simmering legal conflict over how to treat these unusual convicts. Two decades ago Swanson might have had a shot at probation. Now, under much stricter sentencing guidelines, stiff penalties are the rule. Yet recent Supreme Court decisions have made those guidelines merely advisory, giving judges greater discretion. * * *

In Swanson's case, the lengthy sentence imposed Nov. 9 represented a limited reprieve. At his original sentencing on March 20, 2003, the same judge gave him 15 years, and Swanson has sat in prison ever since. But the 7th Circuit Court of Appeals in Chicago overturned her decision, saying she used the wrong guidelines and miscalculated Swanson's financial penalty.

The ruling provided what the judge described as a rare opportunity to reconsider "how much punishment is needed" for a Midwest native who abused his top position at the farmer-owned Countrymark Cooperative Inc. * * *

The Swanson case illustrates how high-level executives raise uncommon issues in a court system where defendants overwhelmingly hail from the economy's bottom rungs.

While Swanson's supporters see a victim of the times, Judge Barker sees a danger to society. During this month's hearing she described him at turns as pitiable, devious, deluded and impressively intelligent, but ultimately, she said, "I see a man who finally got cornered by the magnitude of his own wrongdoing."

He reveled in "the intrigue and the excitement and the sheer fun of it," she said. "Even though you think he would have learned even at this point to turn away from this, he would find his way back to it."

Barker presided over Swanson's 2002 trial, in which a federal jury convicted him of sweeping fraud, money laundering and tax evasion charges stemming from his 1996-97 tenure at Countrymark.

Swanson aggravated matters by jumping bail on the eve of his first sentencing. After federal marshalls dragged him back from the luxury hotel in Seattle where he holed up, the judge greeted him by saying, "Long time no see," and gave him 15 years.

At the time she ordered him to forfeit more than $50 million--reflecting the total value of property involved in Swanson's crimes, even though he skimmed only a portion for himself. It was one of several numbers the appellate court questioned. This month she kept the loss figure at $6.7 million, but sharply reduced the amounts he must pay in forfeiture and restitution.

Her decision to impose a 12 1/2-year sentence within the recalculated guidelines reflects the continued importance of those formulas. Even though judges have more freedom to depart from them, the appellate court still encouraged Barker to use them, and then explain the reasoning behind whatever sentence she applied.

Posted by Marcia Oddi on Sunday, November 20, 2005
Posted to General Law Related | Ind Fed D.Ct. Decisions

Ind. Decisions - No venue yet for high profile murder retrial

In Roy Lee Ward v. State of Indiana (6/30/4 IndSCt), Justice Rucker, wrote for a unanimous court:

As the result of a brutal slaying Roy Lee Ward was convicted of murder and sentenced to death. He was also convicted and sentenced to a term of years for rape and criminal deviate conduct. In this direct appeal Ward raises several issues for our review, one of which is that this case should not have been tried in the county where the crimes were committed because of community bias and pervasive pretrial publicity. The record supports this contention. We are therefore constrained to reverse and remand this cause for a new trial. * * *

With his life at stake, we think the Constitution requires that the defendant "be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which [one half] of the members admit, before hearing any testimony, to possessing a belief in his guilt." Irvin, 366 U.S. at 728. We conclude therefore that the trial court abused its discretion in failing to grant Ward's motion for change of venue from the county, or in the alternative to draw the jury from another county. Accordingly, we reverse the trial court on this issue and remand this cause for a new trial. Judgment reversed and cause remanded.

The U.S Supreme Court last month refused to hear prosecutors' appeal of the decision, meaning that Ward will receive a new trial. However, as headlined in this AP story in the Fort Wayne Journal Gazette today, "No venue yet for murder retrial: Heavy coverage cited in Evansville market." Some quotes:
ROCKPORT – Prosecutors and attorneys for a man whose death sentence in the rape and murder of a 15-year-old girl was overturned could not agree on a county in which to retry him.

Roy Lee Ward was sentenced to death after a Spencer County jury found him guilty of murder, rape and criminal deviate conduct in the July 2001 slaying of Stacey Payne in her home about 30 miles east of Evansville. The U.S. Supreme Court last month let stand a ruling overturning his conviction.

Prosecutors and defense attorneys negotiated Friday but reached no accord on selecting an Indiana county to supply jurors for Ward’s retrial on charges of murder, rape and criminal deviate conduct. * * *

Defense attorneys Steven Ripstra and Lorinda Youngcourt said they and prosecutors agreed Friday to exclude counties adjoining Spencer County – Perry, Dubois and Warrick – and to exclude others in the Evansville and Louisville, Ky., media markets.

They reiterated that Ward is willing to plead guilty if the prosecutor withdraws the death penalty in exchange for life in prison.

Posted by Marcia Oddi on Sunday, November 20, 2005
Posted to Ind. Sup.Ct. Decisions

Environment - Five appeals filed against the wetland permit granted for extension of Porter County road

"IDEM to hear Vale Park appeals Dec. 20" is the headline to this story today in the Munster (NW Indiana) Times. However, the headline is wrong.

IDEM granted the permit. Admnistrative appeals of IDEM permit decisions are heard by the separate and independent Office of Environmental Adjudication (OEA). So this statement in the story is also wrong:

Friday was the deadline for appeals to be filed. The original deadline was a month ago, but the extension was granted because the two that were filed were incomplete. Judge Catherine Gibbs in the Indiana Department of Environmental Management's Office of Environmental Adjudication has been assigned the case. All the appeals were filed in October. [emphasis of incorrect reference added]
Now some quotes from the rest of the story:
VALPARAISO | A prehearing conference is scheduled Dec. 20 in Indianapolis for the five appeals filed against the wetland permit granted for the Vale Park Road extension project. * * *

Tom Banaszak, one of those filing the appeal, said the group still is working on the direction it will go with the appeal. His main concern was whether the city did a biosurvey of the area before deciding to proceed with the construction of the road between Valparaiso and Campbell streets.

"That's a very sensitive piece of property, and I don't know if they surveyed it for plants and animal species," Banaszak said. "It seems like they are approaching it as how it affects (the city), but there are so many social issues here. I feel there are alternate routes they can take. It's such a beautiful piece of land, I don't know why they are trying to put a road through there."

Walt Breitinger, of the Valparaiso Chain of Lakes Watershed Group, also filed an appeal and said he is concerned about what effect the road will have on water quality and quantity, the latter dealing with the potential for run-off causing flooding.

Dorothy Graden, one of the founders of the Friends of Silver Lake group, which has opposed the road extension, listed a number of concerns in her appeal of IDEM's decision to approve the permit to fill 0.07 acre of wetlands. The project also includes the use of swales and other retention areas to treat run-off naturally before it is allowed to flow into the wetlands or Silver Lake.

"I have concerns with the increase in noise and air pollution and the lack of studies to determine salt damage to the wetlands and Silver Lake," Graden said. "Valparaiso is short of funds and they are talking about cutting costs, and I'm concerned they will cut some of the environmental features they reluctantly agreed to."

She questioned whether there is a long-term maintenance plan for the wetlands with money set aside to handle it. She also wanted to know if there is a government agency that will oversee the project and hold the city accountable for all the environmental concerns and stipulations. Flooding, mud sediments, oil and gas pollution and stormwater management were other concerns listed.

"I'm concerned about the people living around Flint Lake that, if there is flooding that causes the water quality to decline and that causes the fishing and swimming to deteriorate, it will devalue their property."

Kim Hommes said she too filed her appeal because of concerns over water quality.

"They have not done studies of the damage from road run-off," Hommes said. "They don't have anybody in the city government qualified to oversee the mitigation or check for damage. There is no plan to maintain the lake's integrity or pay for it. I'm worried about the level of involvement of IDEM during construction because damage that is done is hard to undo."

An appeal also was filed by Cindy McCormack. The city's Redevelopment Commission had hoped to build the road this fall, but that was delayed by the wetlands permit process. Bids for the project also came in about $750,000 more than the consultant's estimate of $1.8 million for both the road and a pathway.

Posted by Marcia Oddi on Sunday, November 20, 2005
Posted to Environment

Ind. Courts - Dealing with conflicts of interest when the county prosecutor becomes the judge

Angela Mapes has a feature story today in the Fort Wayne Journal Gazette headlined "Brown ready to bench conflicts: DeKalb prosecutor judge of new court." Some quotes:

When Monte Brown becomes the first judge of DeKalb County Superior Court on Jan. 1, the 17-year county prosecutor expects he’ll run into more than a few cases where he has a conflict of interest.

But Brown’s not worried; he plans to simply excuse himself from those cases, and move on.

In addition to his years as prosecutor, Brown has the added challenge of having spent 27 years in private practice. His situation is not unique in Indiana, and it’s one Noble County Circuit Court Judge G. David Laur knows well.

When Laur took the bench in 1999, he had served six terms as a prosecutor in Noble County. “When I go for judge’s meetings, it’s like going back in time and going to prosecutors’ meetings,” Laur said. “It’s a normal transition.” * * *

Marcia Oddi, an Indianapolis lawyer who tracks legal news on the Indiana Law Blog, said via e-mail that it’s common for young lawyers to get their start in the local prosecutor’s office, move on to private or a full- or part-time prosecutor position, but with an interest in a judgeship at some point.

In fact, Oddi said, of the six judges who were appointed statewide Monday, five were current prosecutors and one had been a prosecutor.

David Remondini, counsel to Indiana Supreme Court Chief Justice Randall Shepard, said judges who are former prosecutors usually draw guidance from the Code of Judicial Conduct.

Disclosure issues are covered in the code, which applies to any lawyer or judge, Remondini said.

In general, judges would have to disqualify themselves from any cases in which they represented clients while practicing law. * * *

It’s become so common for prosecutors to become judges that state officials even offer special training sessions on how to handle potential conflicts of interest. Brown will have opportunities to attend those sessions, Remondini said.

Posted by Marcia Oddi on Sunday, November 20, 2005
Posted to Indiana Courts

Ind. Econ. Dev. - Vacant industrial buildings and vacant "big box" commercial buildings

Vacant industrial buildings. "Are buildings liabilities or assets for development?" is the headline to this great report today by Michael McBride in the Muncie Star-Press. Some quotes posing the issue:

MUNCIE -- Some local people were surprised last winter when General Motors leveled the former Delco Battery plant in the Industria Centre.

But a GM official last week hinted that the company will likely also demolish Manual Transmissions of Muncie after the plant closes in March -- although it's hard to say how soon after.

Many industrial buildings built in the past are too big for today's manufacturing ways, said John M. McDonald, a GM communications official for the company's worldwide facilities and real estate-management department. According to GM, demolishing the 26-year-old former battery plant (operated by Delphi when it closed in 1998) actually enhanced the site's value -- as the practice has with other GM real estate worldwide.

Should Muncie, then, push to have other empty industrial buildings torn down, such as ABB T&D, Indiana Steel & Wire and other abandoned operations?

Companies, economic development officials and urban planners say that depends on the building and where it is.

This tremendous article is accompanied by an inventory of some of the vacant industrial buildings/sites in Muncie.

Vacant commercial buildings. The ILB has had a number of entries about Crown Point's fight to ban "big box" development, the most recent being this one, from Nov. 17th, titled "Final word, for now, on Crown Point's big box ordinance." A story today in the Munster (NW Indiana) Times may give this battle some perspective. Headlined "C.P. has big ideas for downtown," the story by Allison Fashek reports:

CROWN POINT | The city will unveil preliminary development plans for the downtown this month, including potential property acquisition for a new municipal complex and more accessible parking around the square.

A public workshop set for Nov. 30 is aimed at sharing information the city and LSL Planning Inc. have gathered, and discussing ideas for the downtown's future, said Economic Development Director Frank Mosko. LSL Planning, along with the companies KKG and First Group, is creating a 10-year plan for improving traffic and parking on the square due by the end of the year. * * *

The city's Redevelopment Commission is already in the process of acquiring the Geisen Funeral Home, 109 N. East St., and a two-story house next to City Hall the city uses for its Engineering Department, Economic Development and Special Events offices. The city could sign a purchase agreement for that property, which in 2002 had a reported $1 million asking price, by the end of the year.

The commission also has authorized Mosko to create an inventory of downtown properties that could house police, fire and City Hall staff in the future.

At the meeting, the city also will show a number of possible locations for new public parking around the square, including on North East Street and North Court Street. * * *

"What we're trying to do is plan for the future, the next 10-year window," he said. "These issues have to be addressed."

Here is a link to the City of Crown Point website, which includes a link to the City's Master Plan.

And here is a link to the grand Lake County Courthouse, built in 1878 and located in Crown Point, the county seat. An interesting note on the page:

So many people who visit the historic structure are appreciative of such an attractive and impressive courthouse. The Lake County Courthouse continues to be the center or topic and of pride to those who view it.

Yet, surprisingly, this grand building was once threatened to be demolished in order to create a parking lot. Thankfully, the historical structure was saved from demolition by a group of dedicated citizens. Now placed on the National Register of Historic Places (since May 17, 1973), the Lake County Courthouse is meticulously maintained in order to welcome tourists, shoppers, and other appreciative visitors.

Retired as the house of county government, "The Grand Old Lady" now harbors a medley of unique shops, even a museum featuring Crown Point historical memorabilia.

Posted by Marcia Oddi on Sunday, November 20, 2005
Posted to Indiana economic development

Ind. Courts - More on the Prohibition against Cameras in the Indiana Trial Courts

In the ILB entry on cameras in the courtroom yesterday, I wrote:

Although the Journal Gazette states "The Indiana Judicial Code bars cameras from all local trial proceedings," I have been so far unable to locate the prohibition in the rules.
Thanks to an ILB reader for pointing me to Canon 3 of the Indiana Canons of Judicial Ethics:

Indiana Rules of Court Code of Judicial Conduct

CANON 3. A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently

B. Adjudicative Responsibilities. * * *

(13) A judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:

(a) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration;

(b) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings;

(c) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions:

(i) the means of recording will not distract participants or impair the dignity of the proceedings;

(ii) the parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction;

(iii) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and

(iv) the reproduction will be exhibited only for instructional purposes in educational institutions.

Posted by Marcia Oddi on Sunday, November 20, 2005
Posted to Indiana Courts

Law - Feature on Chicago federal Judge Joan Lefkow

The Chicago Tribune has a very long (18 pages via my printer's count) feature today on Judge Joan Lefkow. It is written by Mary Schmich and headlined: "The journey of Judge Joan Lefkow: Nine months ago, Judge Joan Lefkow discovered her husband and mother murdered in her home. Grief. Guilt. A devastated life. How would she go on?" The preface:

A few days ago, Joan Lefkow was walking down a Chicago street flanked by federal marshals when a panhandler walked up to her and said, "God bless you, Judge Lefkow."

It has been nine months since U.S. District Judge Joan Humphrey Lefkow's name and face made relentless news, but what happened to her the night of Feb. 28 still haunts her days and stirs the souls of strangers.

On that winter evening, Lefkow came home from a day in the federal courthouse to find her husband and mother murdered in her basement. In Chicago and beyond, millions felt her loss and terror.

Since that night, Lefkow has done her best to stay out of the public eye. She has kept the details of what she went through private.

In April, however, she agreed to let Tribune columnist Mary Schmich follow her through the slow process of mending herself and her family. Now, as the worst year of her life comes to a close, she faces the holidays with a mix of dread and hope for the restorative powers of the season's rituals.

"How do we do this other than to rely on the age-old tradition of gathering with family and giving thanks?" she says. "There is no court of appeal that can reverse what has happened. We have to live with it and in spite of it. I pray that one day joy will return to our lives, and I believe that will happen."

Posted by Marcia Oddi on Sunday, November 20, 2005
Posted to General Law Related

Ind. Gov. - What the Indiana General Assembly should do in the upcoming session

The lead editorial in the Fort Wayne Journal Gazette, signed by Karen Francisco, sets out "a rundown of what lawmakers should address when they reconvene in January." Under "what lawmakers should do," the editorial lists three subject areas to deal with: property tax relief; "cherry master" electronic gambling devices; and local government consolidation.

The article is accompanied by a list of key legislative dates:

Tuesday, Nov. 22 – The second regular session of the 114th General Assembly convenes for Organization Day.

Wed., Jan. 4 – House reconvenes for second session day.

Mon., Jan. 9 – Senate reconvenes for second session day.

Fri., Feb. 17 – Noon deadline to file declaration of candidacy for the May 2 legislative primaries.

Tue., March 14 – Adjournment deadline for the legislative session.

[More] The Munster (NW Indiana) Times also has an editorial today on the upcoming session, headlined "Publishing exact movie times isn't Indiana's most pressing concern."

Posted by Marcia Oddi on Sunday, November 20, 2005
Posted to Indiana Government

Ind. Courts - Justice Boehm writes on Indiana jury pool improvements

"My View: Theodore R. Boehm - Teamwork leads to jury pool improvement" is the heading to a short article by Justice Boehm published in the "Letters" section of today's Indianapolis Star. A quote:

In 2006, Indiana courts will have the most comprehensive, accurate list of potential jurors ever compiled. In the past those called for jury duty have been drawn from voter registration and other lists that are both under-populated (because many people do not register to vote) and overpopulated (because the lists included many who had died or moved).

The Indiana Supreme Court's Jury Pool Project has now made a new jury pool list available to every county in the state. By combining the two most complete and current lists (the Bureau of Motor Vehicles and Department of Revenue) we were able to create a list that includes anyone who pays taxes, drives or has a state ID card.

Posted by Marcia Oddi on Sunday, November 20, 2005
Posted to Indiana Courts

Saturday, November 19, 2005

Ind. Courts - A great Kentucky resource: why don't we have the same in Indiana?

The ILB has been following the election law standoff in Kentucky, involving the question of who has the final say on seating a member of the General Assembly. Our most recent entry, a report on this week's oral arguments before the Kentucky Supreme Court, was 11/16/05. Our entry from 1/8/05 explained our interest:

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.
We have been trying to obtain copies of the briefs in this case, particularly the amicus briefs of the American Legislative Exchange Council and the National Conference of State Legislatures. As reported in this 10/27/05 ILB entry, quoting from the a Louisville Courier Journal story from 10/17/05:
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.

To obtain the briefs, I contacted Michael Stevens, who runs the Kentucky Law Blog. He sent me to this page of a site maintained by the Salmon P. Chase College of Law. Sure enough, ALL the briefs in Stephenson v. Woodward, ET. AL. Tremendous!

And hence my question - why don't we have this in Indiana? More specifically, why can't we have access to Indiana appellate briefs via the Courts' website?

Posted by Marcia Oddi on Saturday, November 19, 2005
Posted to Indiana Courts

Law - Another fascinating episode in Pennsylvania court's failed retention vote

The ILB has had several entries, including this one from 10/9/05 and this one from 10/5/05) on the failure of Pennsylvania's voters to retain one of two Supreme Court justices who was up for 10-retention via a "yes/no" vote. Voters were angry, according to reports, because the legislature had voted a middle-of-the-night pay raise for themselves and other officials, including the judges, and because they felt that the Supreme Court had pretty much over the years adopted a "hands off" attitude to the actions of the legislature.

Well, apparently seeing the writing on the wall, the Pennsylvania legislature has now repealed the pay raise. But that has only led to more controversy.

Indiana has a constitutional provision (Art. 7, sec. 19) that reads:

Pay. The Justices of Supreme Court and Judges of the Court of Appeals and of the Circuit Courts shall at stated times receive a compensation which shall not be diminished during their continuance in office. [my emphasis]
Pretty straight-forward. Pennsylvania has a similar, but slightly more complex, provision, at Art. 5, sec. 16(a):
(a) Justices, judges and justices of the peace shall be compensated by the Commonwealth as provided by law. Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth. [my emphasis]
All this was prelude to this story Friday from the Pittsburgh Tribune-Review. Some quotes:
Law offices and judicial chambers across Pennsylvania are buzzing with strategy sessions about a legal challenge to restore the judicial pay raise that lawmakers repealed this week along with their own controversial salary hike.
Court officials predict a challenge will be filed either by a senior judge -- a retired jurist who still presides on an at-need basis and won't stand for a retention vote -- or by one or more judges from Philadelphia, where the cost of living made the pay raise a nonissue for many voters.

Duquesne University constitutional law professor Bruce Ledewitz, an early critic who questioned the constitutionality of the pay raise, said any challenge to the repeal likely would focus on a provision in the state Constitution that stipulates salaries for judges cannot be reduced without rolling back every salaried state officer's pay.

Lawmakers, hoping to put the unpopular issue to rest, structured the repeal bill to specify that the rollback generally applied to all salaried officers of the Commonwealth. But Ledewitz said that provision could be subject to the state Supreme Court's interpretation. * * *

Political activist Tim Potts, who launched the "vote no" campaign as part of a broader reform agenda, said a lawsuit to restore the judges' pay raise would be disappointing, but not shocking.

"It could work to our advantage. It's just something that will keep the issue alive longer and longer," Potts said. "What I can't imagine is that a group of judges would think they deserve a pay raise that was passed in an unconstitutional manner."

Duquesne's Ledewitz said there should be a lawsuit, because he believes the repeal violates Section 16 of the state Constitution -- the provision dealing with judicial compensation reductions.

"Violating the Constitution for a good cause is no better than violating it for a bad cause," he said.

Like Gene Stilp, the Harrisburg area activist who filed suit against the pay raise in Commonwealth Court, Ledewitz contends the only way to ensure that the Legislature refrains from using devices such as unvouchered expenses and conference committee bill swaps to advance controversial legislation without public comment is to have a court declare the July 7 bill unconstitutional.

"The great thing about finding the pay raise unconstitutional is that, if the pay raise was unconstitutional, the repeal bill is unnecessary," Ledewitz said.

Posted by Marcia Oddi on Saturday, November 19, 2005
Posted to General Law Related | Indiana Courts

Law - Another fascinating episode in the Kentucky state merit hiring investigation

To quote first from deep within the Louisville Courier Journal story today:

University of Kentucky law professor Bob Lawson said the battle over the governor's pardon powers and the independence of the grand jury appears to be unprecedented. The case bundles together a "little bit of everything," from constitutional law to the separation of powers, he said. "I would say that it is uncharted territory," Lawson added.
Now from the beginning of the story:
FRANKFORT, Ky. -- A special grand jury investigating state hiring cannot be stopped, but new indictments or reports must be sealed until the scope of Gov. Ernie Fletcher's pardons is determined, the state appeals panel ruled yesterday. At issue is "the validity of the indictments" and whether a grand jury can issue a report naming people who are indicted but granted amnesty under the pardon.

The three-judge panel ruled that "no irreparable injury" results from indictments being issued because they can be dismissed. But the court also found that indicted people who are named in a grand jury report might be harmed if their indictments are found to be invalid because of the pardon.

Such a report "cannot be recalled effectively," according to the ruling written by appeals Judge William Knopf. The panel also included judges Michael Henry and Daniel Guidugli.

"Therefore, we conclude that any indictments and report issued by the special grand jury should not be released until the validity of the indictments can be ruled upon," according to the ruling. "However, we find that it is inappropriate and unnecessary to prohibit, even temporarily, the progress of the special grand jury."

Additionally, via BluegrassReport.org ("An Unfiltered and Candid Look at Politics, Politicians and the Media in Kentucky"), which had links Friday to Kentucky editorials on the "power to pardon" and the Kentucky legislative voting case (both of which the ILB has been following) and this entry titled "Court of Appeals Slams Door On Governor Fletcher," here is a great column from the Ashland Kentucky Daily Independent bemoaning the fact that Kentucky's governor did not make Time magazine's list of the worst governors in the country. The lead:
The nation's bottom-of-the-barrel chief executives, according to Time, are - in no particular order - Louisiana Gov. Kathleen Blanco, who has been roundly criticized for her response to Hurricane Katrina; South Carolina's Mike Sanford, whose tight-fisted ways many say are to blame for the state's rising unemployment; and Ohio's Bob Taft, whom Time takes to task for not reporting golf outings and for not leaving office after being convicted of four misdemeanor ethics violations. What I am wondering is how Ernie Fletcher, the governor of our own fair commonwealth, managed to escape the list.

Posted by Marcia Oddi on Saturday, November 19, 2005
Posted to General Law Related

Ind. Courts - Supreme Court disciplinary action reported

The Fort Wayne Journal Gazette reports today on the discipline of a LaGrange attorney:

According to the order, Fetters was appointed public defender for a client who had received a 20-year prison sentence. Though the appellate brief would have been done in April 2003, Fetters advised the client and his wife on multiple occasions in the coming months that he was still working on it. In September 2003 he told the wife he had filed the appeal with the Indiana Court of Appeals. Though the client asked for copies, Fetters did not provide one, and he ceased answering their calls. In fact, Fetters had not filed the appeal.

The court found Fetters violated four professional conduct rules, including engaging in conduct involving dishonesty, deceit or misrepresentation. Fetters will automatically be reinstated after his 60-day suspension.

Here is the Supreme Court's order in In the Matter of Jeffrey K. Fetters, dated 11/15/05. It includes a dissent:
DICKSON, J., dissents, believing that the respondent's dishonesty to his client warrants a more serve penalty.

Posted by Marcia Oddi on Saturday, November 19, 2005
Posted to Indiana Courts

Ind. Courts - Journal Gazette speaks out on cameras in the courtroom

In an editorial this morning titled "Courts, cameras and access" the Fort Wayne Journal Gazette urges transparency in the courtroom, at all levels. Some quotes:

Although transparency is often looked at as something needed to allow the public to keep watch over the legislative and executive branches of government, access to the judiciary is equally important. So Americans should be pleased Congress is closer to allowing federal district court judges to decide whether electronic recording devices can be used during hearings and trials.

Regardless of what happens at the federal level, Hoosiers should push for such a rule for county courts. * * * A judge should be allowed to determine whether cameras and other recording equipment would serve the greater good of the community. Let the presiding judge weigh the advantages and disadvantages. Wisconsin Democrat Sen. Russ Feingold recently proffered the most elegant argument for opening courts to cameras.

“When the workings of government are transparent, the governed can understand them more thoroughly and constructively, and more readily hold their elected leaders and other public officials accountable,” Feingold said.

Feingold’s reasoning also applies to Indiana courts. The Indiana Judicial Code bars cameras from all local trial proceedings, although the Indiana Supreme Court in 1996 opened its own hearings to cameras. The state’s appellate courts also have the authority to allow arguments to be recorded. It’s time to change the code to open electronic access to county courts as well.

The ILB had entries on the two Congressional bills to allow cameras in the federal trial and appellate courts here on 10/10/05 ("Forcing the Supreme Court by statute to allow cameras at oral arguments") and here from 10/15/05.

This ILB entry from 9/18/05 looks at the prohibition against camereas in state courtrooms and Indiana and other states. Although the Journal Gazette states "The Indiana Judicial Code bars cameras from all local trial proceedings," I have been so far unable to locate the prohibition in the rules.

Posted by Marcia Oddi on Saturday, November 19, 2005
Posted to Indiana Courts

Friday, November 18, 2005

Law - "Target Pharmacists Can Refuse 'Plan B' Prescriptions"

"Target Pharmacists Can Refuse 'Plan B' Prescriptions" is the heading of a piece today (listen here) on NPR's Day-to-Day. The blurb:

Independent companies are now joining the political fray over the emergency contraception medication known as Plan B. The Target retail chain now allows pharmacists at its stores to refuse to fill Plan B prescriptions, saying they are respecting the religious beliefs of its employees under the 1964 Civil Rights Act.
For background see this ILB entry from 4/2/05 with a number of links to stories on pharmicists' refusals to fill prescriptions, and this entry from 9/4/05 which reports on how not only pharmicists, but some judges are opting out on "moral grounds."

Posted by Marcia Oddi on Friday, November 18, 2005
Posted to General Law Related

Ind. Gov't. - "Welfare contract may cost state $1 billion"

"Welfare contract may cost state $1 billion" is the headline to this AP Exclusive by Ken Kusmer posted late this afternoon on the Indianapolis Star website. Some quotes:

INDIANAPOLIS -- Privatizing the application process for food stamps, Medicaid and other welfare benefits will cost the state at least $1 billion, the largest contract in state history, the Daniels administration has told vendors.

The contract is almost certain to go to an out-of-state vendor despite Gov. Mitch Daniels' "Buy Indiana" executive order in which state agencies are required to spend 90 percent of procurement dollars on Indiana businesses.

Such a contract could cover as many as 10 years, Secretary Mitch Roob Jr. of the Family and Social Services Administration said Friday. He stressed that the state was still soliciting information from vendors that would shape the final contract, so it was premature to speculate on a dollar amount.

The Indiana Department of Administration, however, made it clear to vendors that the contract is expected to top $1 billion, more than twice as much as the state's largest active contract.

Here is the State's 54-page "Request for Information" from the DOA and FSSA - a solicitation for "Eligibility Determination Services." Responses are due Jan. 3, 2006.

This one-page document is a notice of a briefing for respondents, to be held Friday, Nov. 18 (that was today) from 1:30 to 3:30 at the state government complex.

This link leads to a special state website containing an enormous "library" of information for respondents.

Posted by Marcia Oddi on Friday, November 18, 2005
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending November 18, 2005

Here is the Indiana Supreme Court's transfer list for the week ending November 18, 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, November 18, 2005
Posted to Indiana Transfer Lists

Ind. Courts - Marion Superior Court hires collection firm

Will higgins of the Indianapolis Star reports, in an item just posted on the Star's website, that:

Marion Superior Court, estimating it is owed $17 million in unpaid traffic fines over the last five years, is getting serious about collecting the money. A collection agency hired by the court sent out letters today to anyone with an unpaid ticket from 2003 and 2004. An estimated 52,236 fines totaling $8 million went uncollected in those years.

"We are being proactive . . . to increase revenues for both the state of Indiana and Marion County in this time of fiscal crisis," said Mark Renner, Marion County Superior Court Administrator. * * *

For every $1 collected, 70 percent goes to the state, 27 percent to the county, and 3 percent to municipalities. A 25 percent collection fee will be added to the fine to pay the collection agency's fee.

Posted by Marcia Oddi on Friday, November 18, 2005
Posted to Indiana Courts

Ind. Courts - Res Gestae article on accessing Indiana appellate court records

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

This month's column is titled "Indiana appellate court records – how accessible?" The piece discusses: access to recent case files; the problems of accessing records from Indiana's statehood through the middle of the 20th century; and what the future holds. A quote:

What about records more than 20 years old – those for which there is no microfilm and that are no longer the responsibility of the Clerk’s office? Many case records are located in the miles of bankers’ boxes in the State Records Center. According to Dr. Alan January, Program Director at the Indiana State Archives since 1990, there are more than 52 skids of uncataloged 20th century appellate court records. Case documents from the early to mid-20th century are very difficult to find.

Posted by Marcia Oddi on Friday, November 18, 2005
Posted to Indiana Courts

Ind. Law - Indiana Troopers Association and Indiana Do Not Call list

Having just received my 6th call in the last two days from callers claiming to be from the Indiana Troopers Association (several of whom I have told in no uncertain terms that I am on the no-call list and not to call again), I'm wondering about this presumably blatant violation of the Indiana no-call list. The ILB had an entry 9/15/05 that included this quote from the Indianapolis Star:

A federal judge has ruled in favor of the state in a 3-year-old lawsuit by nonprofit groups challenging Indiana's popular "no-call" list.

U.S. District Court Judge Sarah Evans Barker issued a verdict without trial in favor of Indiana Attorney General Steve Carter, who defended the list.

In a 36-page opinion dated Sept. 6 and issued late Wednesday, Barker said the law is "content-neutral" and does not violate the First Amendment. * * *

Four nonprofit groups - the National Coalition of Prayer, the Kentucky-Indiana Chapter of Paralyzed Veterans of America, the Indiana Troopers Association and the Indiana Association of Chiefs of Police - filed the joint federal lawsuit in April 2002 to overturn the state's telemarketing law. The law had taken effect several months before the suit was filed. The troopers group dropped out of the litigation in May 2004.

Posted by Marcia Oddi on Friday, November 18, 2005
Posted to Indiana Law

Environment - Great Lakes water; Transfer station challenge

"Great Lakes states seek lock on water" is the headline to this story in the Chicago Sun-Times:

Fear that fast-growing, thirsty communities -- as far off as China and as close as Wisconsin -- could get their hands on Great Lakes water has driven border-state governors to band together to control the largest single source of fresh surface water on the planet.

The controversial agreement spells out who can and can't draw on this increasingly valuable resource, holding one-fifth of the world's -- and 90 percent of America's -- fresh water.

The governors are to sign the Great Lakes Basin Water Resources Compact on Dec. 13 in Milwaukee. Then begins the arduous task of getting it through eight state legislatures and Congress.

A copy of the document, obtained Thursday by the Chicago Sun-Times, declares that the waters of the Great Lakes "are precious public natural resources shared and held in trust by the states."

So far, Congress has left it to states to set standards for water withdrawals and conservation. "But if the states don't act, Congress steps in," warned Cameron Davis, executive director of the Chicago-based Alliance for the Great Lakes. "We're trying to fix the roof while it's sunny outside." * * *

Sending mass quantities of Great Lakes water out of the basin is not new. In 1900, Chicago leaders brazenly reversed the flow of the Chicago River. The feat cleaned out a river that had become sluggish open sewer but insulted the natural order of things by connecting the Great Lakes and Mississippi River basins.

Thanks to the "Chicago diversion," Illinois still takes 2.1 billion gallons a day out of Lake Michigan -- enough to fill the Sears Tower five times. Peter Annin, whose book on Great Lakes diversions is due out next year, calls the river's reversal a "grotesque precedent."

It's a precedent cited by Waukesha, Wis., which wants to pump 20 million gallons a day out of Lake Michigan. The rapidly developing community is less than five miles outside the Great Lakes basin or Lake Michigan watershed -- the land area that drains to the lake. Waukesha objects to a requirement in the compact that any new user of Great Lakes water outside the basin return it to the lakes as treated wastewater.

"County plans transfer station challenge: Save the Dunes, resident group set up legal fund to file their own appeal." That is the headline to this story in the Munster (NW Indiana) Times. Some quotes:
The Porter County commissioners will appeal the state's decision to allow a waste transfer station near The Pines, County Attorney Gwenn Rinkenberger said Thursday.

Rinkenberger said the transfer station, which is accessed by Porter County-controlled County Line Road, will create dangerous traffic conditions on the road. * * *

"It's almost like a coercive move for (the state) to issue this permit," Rinkenberger said.

Last week, the Indiana Department of Environmental Management granted Great Lakes Transfer the permit to build a transfer station that can accept 250 tons of household waste, construction debris and recyclables that are then shipped out within 24 hours.

Government officials, conservation groups and citizens have protested the department's decision, saying the transfer station is too close to the Indiana Dunes National Lakeshore and it could pollute the Kintzele Ditch, which flows into Lake Michigan.

Residents Against Trash In Our Neighborhood Alliance, a group formed to oppose the transfer station, already has announced its intention to appeal the permit to the Office of Environmental Adjudication, which reviews department decisions.

RATIONAL and the Save the Dunes Conservation Fund announced Thursday that they have formed a coalition to appeal the decision and have set up a tax-deductible legal fund to raise money. Their appeal likely will focus on public health and safety concerns.

Rinkenberger said her appeal will focus on Porter County's liability for its roads.

Posted by Marcia Oddi on Friday, November 18, 2005
Posted to Environment

Ind. Courts - Vigo County courthouse restoration bids higher than expected

"Courthouse restoration bids higher than expected: Historic finish work may have to be re-bid, construction official says." That is the report from the Terre Haute Tribune-Star. Some quotes:

Bids on historic finishes, opened Wednesday as part of an $8.5 million restoration project of the interior of the Vigo County Courthouse, were higher than engineering estimates and may have to be re-bid, a construction manager said.

The work includes adding new marble, painting and stencil work. That work had been estimated to cost between $2 million and $2.5 million, said John Hanley, operations manager for Construction Technology Associates, a Terre Haute company serving as the county's construction manager on the project.

"We obviously put together a scope of work that would be as grandiose as we could possibly do it. This may be something we will have to look at for budget reasons and maybe not go to the extreme we were intending to," Hanley said.

[More] The Richmond Palladium-Item has a report on the Union County Courthouse, headlined "Courthouse in repair, county seeks extra space: Panel hopes several offices remain separate from renovated building." A quote:

LIBERTY, Ind. -- The Union County Commissioners were expected today to ask the county council if the county can continue to rent office space after the courthouse renovation is completed. After reviewing plans Wednesday, the commissioners said courthouse space would work best if the health, area plan, emergency management and 911 offices didn't return to the building. * * *

Plans began to change after commissioners saw how much space the elevator shaft and lobby took from three offices. Architect Dann Keiser had planned for the elevator to open into the hallway, but county building inspector Jack Bailey said construction codes required a fire-safe lobby for the elevator, since the building won't have a sprinkler system.

See also the 10/17/05 ILB report.

Posted by Marcia Oddi on Friday, November 18, 2005
Posted to Indiana Courts

Law - U.S. attorney suddenly too sexy for his legal briefs

"U.S. attorney suddenly too sexy for his legal briefs" is the headline to this column today by the Chicago Sun-Times' Debra Pickett. Preface this with the Sun-Times report this morning headed "Former Sun-Times mogul indicted." Some quotes:

Conrad Black, who once ran a media empire that included the Chicago Sun-Times, was indicted Thursday on eight counts of mail and wire fraud. * * *

He "lived large," using company funds to subsidize his lavish lifestyle, including $13,935 for champagne and wine for a surprise party for his wife, a tony apartment on Park Avenue and homes in Florida and London, U.S. Attorney Patrick Fitzgerald said. He hobnobbed with celebrities, and secured himself a seat in Britain's House of Lords, where he took the name "Lord Black of Crossharbour."

Black, 61, could trade the flowing Lord robes for prison orange -- he faces up to five years in prison for each of the eight counts if convicted. A warrant has been issued for his arrest. If he does not appear in federal court in Chicago, U.S. Attorney Patrick Fitzgerald said he will seek to have him extradited from Canada.

NOW from the Pickett column:
Frankly, when I heard that U.S. Attorney Patrick Fitzgerald had been named by People magazine as one of the sexiest men alive, I was a little incredulous.

Then he filed charges against my former boss, Conrad Black, and I immediately saw what the People editors were getting at. That whole straight-arrow, law-and-order thing really is hugely appealing.

It was standing-room only at the Thursday afternoon news conference where Fitzgerald announced the indictment of Lord Black, the former chairman of Hollinger International, the company that owns the Sun-Times. * * *

Fitzgerald, who often looks like he's about to hiccup, is not, it must be said, conventionally sexy. But when the news conference started and he stood in front of 11 TV cameras to explain the myriad ways Black had cheated his company, his so-uncharismatic-he-must-secretly-be-Batman charm was on full display. * * *

And, after about 20 minutes, someone finally asked, "How does it feel to be named one of the sexiest men alive?"

The serious journalists in the room tried to look appalled, but, somehow, they made themselves pay attention as Fitzgerald blushed and said, "I'd almost prefer going back to the leak investigation questions I can't answer."

Everyone laughed appreciatively -- "Isn't it terrible what America's come to?" the laugh seemed to say -- and, after one failed follow-up question, moved on to weightier topics, like what the Bears were doing at an FBI shooting range.

Posted by Marcia Oddi on Friday, November 18, 2005
Posted to General Law Related

Thursday, November 17, 2005

Courts - More on "Judges in South Dakota may lose immunity"

Updating this ILB entry from Nov. 14th, the Sacramento Bee reports today:

An initiative providing for the ouster and criminal indictment of judges who make bad decisions appears headed for a test vote in South Dakota next year and, if it succeeds there, will be attempted in other states, sponsors of the measure said this week.

The Southern California-based sponsors of the Judicial Accountability Initiative Law (JAIL) have taken aim at what they call "black-collar crime" across the country. They already have their sights set on the 2006 ballot in Nevada, and they report related efforts in Idaho and New Mexico. * * *

The South Dakota initiative would create a special grand jury to hear complaints against judges based on an open-ended list of possible grievances. The list specifically includes not only crimes such as graft but certain flaws in reasoning, such as ignoring evidence and "sophistry."

The grand jury would have power to set aside judges' immunity from civil suits by the people they rule against. It also could levy fines or hand down indictments, subjecting judges to criminal proceedings before special trial juries with the power to sentence as well as convict. After three missteps, a judge would be disqualified from holding office. * * *

The campaign also has begun drawing the attention of leading jurists.

In a speech this week, California Chief Justice Ronald George described it as a threat to judicial independence.

He said later that California has an "outstanding and impartial" judiciary and doesn't need "extremists telling us how to change a system that has served us so well and to substitute ... a highly politicized system for the impartial process that we enjoy."

Missouri Chief Justice Michael Wolff, in a September speech to his state's judges and lawyers, also commented on the South Dakota campaign, noting "there is an organization contemplating a similar effort right here."

The organization claims to be active in varying degrees in all 50 states, although not all have the initiative process. It's been on the political scene for almost a decade.

Posted by Marcia Oddi on Thursday, November 17, 2005
Posted to Indiana Courts

Ind. Gov't. - Update re 3-part series on juvenile facility problems

Nancy J. Sulok of the South Bend Tribune, who wrote the three-part series in October on juvenile facility problems (see this ILB entry), writes today in a column headlined "Changes being made at state-run juvenile lockups: Continuation of medications is part of new policy," that:

Greater parental involvement and a change in medication policies have taken place over the past two months at the South Bend Juvenile Correctional Facility.

J. David Donahue, commissioner of the Indiana Department of Correction, discussed the changes during an interview last week in South Bend, where he was attending a community corrections conference at Ivy Tech Community College. * * *

Donahue said changes are under way throughout the juvenile justice facilities in Indiana.

One of the issues in the DOJ report concerned safety and the assaults of inmates. Donahue said more security cameras have been added to minimize blind spots that were out of view of the guards and surveillance cameras.

Video cameras also are being used now, Donahue said, to document the behavior of the juvenile offenders. Staff members recently were trained to use the cameras to monitor emotionally upset children. Donahue said video has been used that way for some time now in the adult prisons but are an innovation in the juvenile facilities.

Information can be shared with Child Protective Services and other agencies that deal with troubled youths, he added.

Also new for the staff, Donahue said, is the requirement that the teachers offer parent-teacher conferences. He said the idea occurred to him while he was attending such a conference for his own son. He was surprised to find out that similar meetings were not conducted in the juvenile facilities. Absolutely nothing is more important than involving parents in their children's education and development, Donahue said.

The DOJ report also was critical of the DOC's policy of discontinuing behavior-modifying drugs.All youths go through an intake process at Logansport, and the staff there routinely was stopping the the use of drugs for attention deficit hyperactivity disorder, bipolar disorder and other mental health problems.

Parents were extremely critical of the practice because the cutting off of drugs often caused their sons to exhibit disruptive behavior that impeded their progress. Donahue said the practice has been stopped. Boys who are taking psychotropic drugs when they arrive at intake are kept on the medications now, he said.

Posted by Marcia Oddi on Thursday, November 17, 2005
Posted to Indiana Government

Law - Wineries sue over in-state shipments in Indiana, related matters

"Wineries sue over in-state shipments" is the headline to an AP story posted this morning on the Indianapolis Star website. Some quotes:

MADISON, Ind. -- Nine Indiana wineries are asking a court to stop the state from enforcing a directive that says shipping wine directly to consumers is illegal.

The Indiana Alcohol and Tobacco Commission sent a letter May 20 to Indiana's 31 wineries warning them that in-state shipment of wine is a misdemeanor.

The letter followed a May 16 U.S. Supreme Court Ruling that overturned laws in Michigan and New York that prohibited out-of-state wineries from shipping wine to customers in those states.

In the lawsuit filed Tuesday in Jefferson Circuit Court in Madison, the wineries are asking for an injunction to prevent the state from enforcing the rule in time to save their holiday season. A hearing is scheduled for Monday.

"It's caused havoc among Indiana wineries and may even put some out of business," said attorney Bob Epstein, who is representing the wineries. Epstein last week won a similar injunction in Pennsylvania.

After the Supreme Court ruling, Indiana wine enthusiasts thought it meant they would soon be able to have out-of-state wine shipped to them the same way they had been enjoying in-state shipment for 30 years. Then Indiana Alcohol and Tobacco Commission Chairman David Heath's bulletin appeared, banning all shipments in-state.

Epstein said there is no state law that says Indiana wineries cannot ship wine to consumers. In Indiana, it is a felony for an out-of-state winery to ship to anyone in the state who is not a licensed wholesaler.

Epstein included with the lawsuit correspondence dating to the 1970s showing in-state wine shipments are allowed by the state. * * * "As it currently stands, the record is pretty clear it's been done 30 years," Epstein said.

Here is what looks to be the basis for the above, a story today in the Fort Wayne Journal Gazette by Dan and Krista Stockman. In this story Epstein is quoted as saying re Heath's memo:
“It’s an attempt to negate Granholm (v. Heald),” Epstein said.

The only problem, Epstein said, is there is no law in Indiana that says Hoosier wineries can’t ship wine to consumers. Not only that, but there are laws on the books that say they can.

Epstein included with the lawsuit correspondence dating to the 1970s showing in-state wine shipments are allowed by the state. A Dec. 29, 1978, letter from what was then the Alcoholic Beverage Commission to United Parcel Service details the shipping arrangements agreed to and the application forms for UPS’ permit.

More from the story:
Steve Thomas, of Thomas Family Winery in Madison, said the lawsuit had to be filed.

“It was an absolutely illegal situation. They didn’t follow the sunshine law; they didn’t have public hearings; they changed 30 years of history,” he said. “It’s very unfortunate it had to come to this, but the state would not listen to anything we had to say. They left us with no choice.”

Thomas said he doesn’t know yet how much money the winery has lost because of the ban. He said in addition to what the loss he can calculate is the loss he can’t – how much people would have ordered but never bothered to ask about because of the decree. * * *

Fighting for the right to ship wine is not new to Thomas. He was involved in lawsuits in Ohio, Florida and Pennsylvania, and won all three. Now, he wants to be able to ship wine again in his home state.

“All we’re asking is that it be returned to the way it was before (the) ruling and then go from there,” he said.

Thomas said the wineries recognize that the Alcohol and Tobacco Commission has the authority to regulate the handling of alcohol in the state, but the way the change was made in May was wrong because there was no notice and no public hearings on the change.

Epstein is also the attorney handling a federal lawsuit against the state seeking to overturn the ban on out-of-state wineries from shipping wine to Indiana homes. That suit, filed on behalf of five Indiana residents and Chateau Grand Traverse winery in Michigan and White Owl Winery in Illinois, was filed in Indianapolis federal court May 18 on the basis of the U.S. Supreme Court ruling two days before.

The state is fighting the federal case, saying it does have a level playing field: Because it bans in-state shipments it can also ban out-of-state shipments. Epstein said the Jefferson County case will prove Indiana does not ban in-state shipments.

All of this could be solved by the General Assembly. The legislature and the alcoholic beverage wholesalers industry and Indiana wineries have drafted competing bills to address the issue.

Here is a good report via Law.com on the Pennsylvania case, from earlier this week. It begins:
A federal judge has struck down a Pennsylvania law that prohibits out-of-state wineries from making direct sales to Pennsylvania consumers, hotels and restaurants after rejecting an argument that the law's constitutional defect could be cured by extending the prohibition to in-state wineries.

In his six-page opinion in Cutner v. Newman, Senior U.S. District Judge John P. Fullam concluded that a recent regulation passed by the Pennsylvania Liquor Control Board was not enough to fix a discriminatory law.

"I decline the defendants' invitation to resolve the constitutional dilemma by purporting to impose upon in-state wineries the same restrictions which the challenged statutes now impose on out-of-state wineries. That is a matter for the Legislature to address," Fullam wrote.

Fullam's ruling is the fourth such decision handed down in the wake of the U.S. Supreme Court's May ruling in Granholm v. Heald that struck down similar laws in New York and Michigan.

Applying Granholm, federal judges have struck down laws in Massachusetts, Florida and Ohio.

Two states -- Connecticut and California -- voluntarily repealed their laws. But court challenges are currently pending over similar laws in Arkansas, Indiana, Kentucky, Maine and New Jersey.

Many of the documents in the above cases may be found on the website of Bloomington Law Prof. James A. Tanford, counsel of record in Granholm v. Heald, the recent Supreme Court case that struck down state laws restricting such shipments., although it looks to be somewhat out-of-date.

But here, for instance, are the early filings in the federal case of Baude v. Heath, described in the Fort Wayne Journal Gazette story.

Via the USDC ED Pa., here is the Nov. 9, 2005 ruling in Cutner v. Newman.

Posted by Marcia Oddi on Thursday, November 17, 2005
Posted to Indiana Law

Ind. Decisions - Sex offender registry, evidence issue, eminent domain question addressed today

Included among the five cases decided today by the Court of Appeals are:

A.O. v. State of Indiana, where, according to Judge Mathias' opinion:

A.O. was adjudicated a delinquent child in Hendricks Circuit Court and ordered to register with the Indiana Sex Offender Registry. He appeals, raising one issue: whether the State established by clear and convincing evidence that he is likely to repeat a sex offense. We reverse.
In State of Indiana v. Mark J. Murray appealed the trial court's order granting defendant's motion to suppress evidence. The Court, in an opinion written by Judge Riley, affirmed. Some quotes:
The State now argues that reasonable suspicion of Murray’s criminal activity does not have to be based upon Officer Moore’s personal knowledge, but rather, Officer Moore can rely on the collective knowledge of the Seymour Police Department regardless of whether it is conveyed to him. Therefore, the State asserts that any knowledge that Officer Carpenter may have had in regards to Murray’s criminal activity was imputed to Officer Moore before he made the investigatory stop of Murray’s vehicle. In support of their collective knowledge argument, the State relies on Utley v. State, 589 N.E.2d 232, 236 (Ind. 1992), cert. denied, 506 U.S. 1058, where our supreme court recognized that “as long as participating officers seeking the issuance of a search warrant collectively have probable cause, their individual knowledge can be imputed to the officer signing the affidavit in support of the search warrant.” * * * Although we applaud the State’s novel argument, the cases relied upon are clearly distinguishable from the case at hand. * * * The collective knowledge cannot be relied upon after the fact. To hold otherwise would allow police officers to conduct investigatory stops before having any reasonable suspicion of criminal activity.
In State of Indiana v. John M. Dunn, et al, an opinion written by Senior Judge Ratliff, the question was the starting point for the computation of prejudgment interest in an eminent domain case. Some quotes:
The State contends that the trial court incorrectly computed the prejudgment interest on the damages awarded by the jury. The trial court ordered the State to pay interest from the date of the filing of the complaint. The State argues that the trial court erred. We agree. * * *

The trial court erroneously ordered that the computation of prejudgment interest on the jury’s verdict commence upon the date the State filed its complaint. Prejudgment interest should be computed from the date the State tendered the appraised value to the circuit court clerk, more specifically, February 7, 2003. This matter is remanded to the trial court for a recalculation of the prejudgment interest owed by the State to the Dunns consistent with this opinion. Reversed and remanded.

Posted by Marcia Oddi on Thursday, November 17, 2005
Posted to Ind. App.Ct. Decisions

Environment - Pollution by airports; state official says gas station too expensive to clean up

Airport. James Bruggers of the Louisville Courier Journal reports today in a story headlined "Study indicates airport is major source of toxic chemical" that:

If Louisville International Airport were an industrial facility, it would be one of the top two or three sources of a toxic chemical deemed to be among the most dangerous in the region's air.

That chemical is 1,3-butadiene, which was singled out in a 2003 monitoring study as the main toxic threat to public health in Louisville's air because it can cause cancer and other illnesses.

Gas station. "Environmental snags may block development of Dyer corner: Official says INDOT warns cleanup may be too costly" is the headline to this story by Mary Wilds today in the Munster (NW Indiana) Times. Some quotes:
DYER | The southwest corner of U.S. 30 and Hart Street remains vacant, and environmental conditions are likely to keep it that way for quite some time, Redevelopment Commissioner Jethroe Smith said.

Town officials have long eyed the entire intersection as a future attractive gateway to Dyer, but the corner remains a stumbling block because it is the site of a former Clark gas station.

Although the gas station is long gone, the site needs underground environmental cleanup before any kind of redevelopment goes forward, Smith said.

The Indiana Department of Transportation currently owns the small parcel. Smith discussed the matter with INDOT officials who said the cleanup was too expensive and discouraged Dyer from attempting to acquire and clean the site because of the expense, he said.

Really!

Posted by Marcia Oddi on Thursday, November 17, 2005
Posted to Environment

Ind. Econ. Dev. - French Lick hotel to close for a year

"French Lick hotel to close for a year: Move will speed casino project" is the headline to this story today by Grace Schneider in the Louisville Courier Journal.

Posted by Marcia Oddi on Thursday, November 17, 2005
Posted to Indiana economic development

Ind. Law - Final word, for now, on Crown Point's big box ordinance

Updating yesterday's ILB entry, today the Munster (NW Indiana) Times and the Gary Post Tribune both report that last eveneing the Crown Point city council adopted the big box ordinance adopted by the plan commission earlier this week. From the Times:

CROWN POINT | The City Council presented a united front in the fight against big-box stores Wednesday, approving an ordinance that makes it more difficult for the retailers to come to the city.

"People have taken it upon themselves to write 'No Wal-Mart' and put it on their houses or in their yards," said Councilman Bill Condron, R-4th. "I think we're acting in the best interest of this community."

The ordinance, which the council passed 7-0, forces developers wanting to build retail stores 75,000 square feet and over in a business district to go to the Board of Zoning Appeals and City Council for a special use permit. The group suspended the rules to pass the ordinance in one night.

In the immediate future it threatens a Lauth Property Group proposal to build two anchor stores at the intersection of Interstate 65 and U.S. 231, one 203,000 square feet and another 88,400 square feet. One of the stores could be a Wal-Mart.

From the Post Tribune:
And while the City Council may have won the first battle, it’s expecting a long fight.

In a special meeting Wednesday night, the council suspended the rules and passed an ordinance in first and second readings that would require special use zoning for any retail building over 75,000 square feet.

The ordinance was drafted in response to Lauth Development Group’s plans to build a shopping center at Interstate 65 and U.S. 231 that would be anchored by Wal-Mart.

The Plan Commission has been deferring a vote on Lauth’s site plan approval since August pending the approval of design standards for the I-65 corridor.

Armed with the new zoning ordinance, the Plan Commission is expected to not approve Lauth’s site plans at its meeting next month.

Posted by Marcia Oddi on Thursday, November 17, 2005
Posted to Indiana Law

Wednesday, November 16, 2005

Ind. Decisions - More on today's decision on the requirement to pay for pretrial diversions [Updated]

Shortly before 6 p.m. the Indianapolis Star posted on its website a story by Kevin Corcoran on today's Court of Appeals ruling in Jamie Mueller & Vicki Evans v. State of Indiana. (Scroll down 3 entries or click here for the ILB summary from this morning.) Some quotes from the Star story:

The Marion County prosecutor’s refusal to waive a $150 fee first-time petty criminals were required to pay to get charges against them dismissed discriminated against the poor, an Indiana court ruled today.

In a 3-0 ruling, the Indiana Court of Appeals held that Prosecutor Carl Brizzi’s policy, since abandoned, violated defendants’ constitutional due-process rights by treating them differently from defendants with money.

“A prosecutor’s charging decisions cannot be made in a way that violates the U.S. Constitution,” Judge Michael Barnes wrote in the court’s 14-page ruling.

The appeals court, in a footnote to the opinion, chastised Brizzi and the Indiana Attorney General’s Office for suggesting that poor people could afford the pretrial diversion fees if only they would curb spending on cigarettes, alcohol, cable TV or cell phones. * * *

Brizzi was out of town and unavailable for comment, according to a spokesman. His top aide said the ruling would have no immediate effect. During the court suit, in response to questions from The Star about the court challenge, Brizzi began making pretrial diversion available to eligible non-violent defendants who agree to either pay a $150 administrative fee or perform 30 hours of community service. If requested, prosecutors also will ask judges for 90-day delays so defendants can save money to pay the fee.

“We’re in full compliance with the ruling,” said Lisa Borges, Brizzi’s chief of staff. “We have no plans to appeal.”

Marion County public defenders said they are likely to go back to court if people who cannot afford to pay and are unable to perform community service are denied entry to the program.

Here is the footnote referenced in the story, from p. 13 of the opinion:
The State argues in its brief that the $230 in fees is “hardly excessive” and, “That money easily could be saved by eliminating expenditures on items such as alcohol, cigarettes, cable television, cell phone usage, and eating out in restaurants.” Undoubtedly, not every person who claims to be indigent turns out to be so, and the number of persons unable to pay these fees may be a small percentage of persons applying for the Prosecutor’s pretrial diversion program. However, we do not doubt the existence of extreme poverty in society and it is inappropriate to presume that persons in dire financial straits have wasted their money on drinking, smoking, cable television, cell phones, or dining out.
[Updated 11/17/05] Here is today's Star story, on the front-page of the local section, a somewhat expanded version of yesterday evening's version posted on the Star website.

Posted by Marcia Oddi on Wednesday, November 16, 2005
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "Montgomery County judges issue mandate for staff raises"

A story today in the Crawfordsville Journal Review reports:

Montgomery County Council members learned Tuesday a judge has been appointed to hear the Montgomery County judges’ mandate case.

County Attorney Dan Taylor told council members the Indiana Supreme Court appointed a Cass County judge to hear and rule on the case. Taylor could not recall which judge had been appointed.

Julian L. Ridlen, Cass Circuit Court, was appointed by the Supreme Court in this order issued 11/7/05. More from today's paper:
Montgomery County Judges Thomas K. Milligan, Peggy Q. Lohorn and David A. Ault mandated a $10,000 pay increase for court reporters and other employees in August after three employees left the Circuit Court’s employ for better pay in the last two years.

At the time of the mandate, the county was ordered by the Department of Government and Local Finance to cut the proposed 2006 budget by $750,000.

With a tightening budget, the council was unable to agree to the judges’ mandate.

“The judge will set a (court date) probably before the end of the year,” Councilman Terry Hockersmith said. “He’ll hear the case, then make the ruling.”

For background on this story, see ILB entries from: 8/18/05; 8/20/05; and 8/24/05.

My Sept. 2005 Res Gestae column on judicial mandates is available here.

Posted by Marcia Oddi on Wednesday, November 16, 2005
Posted to Indiana Courts

Law - An update on the election law standoff in Kentucky [Updated]

See this Oct. 27, 2005 ILB entry for background. Today WHAS Louisville is reporting:

(Frankfort, KY) -- Candidates have already begun filing for the 2006 elections in Kentucky, but one unresolved race from 2004 goes before the Kentucky Supreme Court Wednesday. Residents of Jefferson County's 37th State Senate District have gone unrepresented this year. Republican Dana Seum-Stephenson beat Democrat Virginia Woodward by a thousand votes, but after a lawsuit by Woodward, a Jefferson Circuit judge held Stephenson did not meet residency requirements and ordered her votes not to be counted. In January, the Republican majority in the Senate voted to seat Stephenson anyway, so Woodward filed suit in Franklin Circuit Court. In June, Judge William Graham ruled the Senate action arbitrary and unconstitutional, but wouldn't order Woodwars seated instead, so the matter was appealed directly to the Kentucky Supreme Court. Justices are not expected to rule from the bench, but a decision is hoped for by January 3rd, when the General Assembly convenes.
[Updated] Here is some of the report on today's oral arguments, from the Lexington Herald-Leader:
FRANKFORT, Ky. - A year after voters cast their ballots in the 37th District state Senate election, seven Kentucky Supreme Court justices gathered Wednesday to hear arguments in the case.

Even though Republican Dana Seum Stephenson received more votes than Democrat Virginia Woodward in the November 2004 election, the decision will depend on numbers like 32, 38 and 7. Those are the sections of the Kentucky Constitution that deal with residency requirements for candidates, the power of the Senate to determine its membership and whether any branch of government can exercise unchecked and arbitrary power. * * *

In what has become a touchstone phrase in the disagreement, Senate President David Williams, R-Burkesville, declared that the Senate had the power to determine its own membership. As an example, Williams said 20 members of the Senate could vote to admit a 23-year-old, even though the Constitution requires senators to be 30. "And no court in the land would overturn it," Williams said.

Under questioning from Chief Justice Joseph Lambert, Paul Salamanca, a University of Kentucky law professor representing Williams in the case, said there was no limit on the constitutional authority of the Senate to determine its own membership, including the constitutional provision that prohibits the arbitrary exercise of power. * * *

The justices, as is routine, did not say when they would render their decision. The 2006 legislative session begins in January and without action by the high court, Stephenson will still be prevented from taking any action as a senator.

Posted by Marcia Oddi on Wednesday, November 16, 2005
Posted to General Law Related

Ind. Decisions - Requirement to pay for pretrial diversions decided by Court of Appeals today

In Jamie Mueller & Vicki Evans v. State of Indiana, decided today, Judge Barnes writes:

Summary. Jamie Mueller and Vickie Evans appeal the trial court’s refusal to require the Marion County Prosecutor (“the Prosecutor”) to permit them to participate in a pretrial diversion program. We reverse and remand.

Issue. The dispositive issue before us is whether requiring payment of a fee as an absolute condition of participating in a pretrial diversion program violates the Fourteenth Amendment to the United States Constitution. * * *

As our emphases make clear, the pretrial diversion statute does not require the payment of fees, either statutorily-denominated or otherwise, as an absolute condition of participation in a pretrial diversion program. Mueller and Evans concede the statute is constitutional on its face. The undisputed evidence before us, however, is that at the time of Mueller’s and Evans’s cases, the Prosecutor here had implemented a policy of unconditionally requiring the payment of certain fees as a condition of participation in his pretrial diversion program. The question, therefore, is whether this was an unconstitutional application of an otherwise constitutional statute with respect to indigent defendants. * * *

Prosecutors have clearly recognized and very broad discretion in the performance of their duties and, more specifically, in making decisions as to which persons arrested for crimes they will actually charge and prosecute to the fullest extent of the law. That discretion, however, is not absolute. The concept that our criminal justice system should be operated as far as reasonably possible without regard to a defendant’s financial resources is axiomatic and beyond dispute. Allowing some defendants and not others to completely avoid prosecution and a potential criminal conviction, based solely on their respective abilities to pay certain fees, violates this fundamental principle. We are reminded of these words spoken by then-Attorney General Robert Jackson in 1940:

“[T]he citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.” See The Federal Prosecutor, http://www.roberthjackson.org/Man/theman2-7-6-1 (last visited October 25, 2005).
Conclusion. A practice of requiring payment of a fee as an absolute condition of participation in a pretrial diversion program discriminates against indigent persons in violation of the Fourteenth Amendment. The trial court erred in concluding otherwise. We reverse and remand for further consideration of Mueller’s and Evans’s indigency, if necessary. Reversed and remanded.

CRONE, J., and NAJAM, J., concur

[More] For background, see these ILB entries from 5/26/04 and 9/26/05.

Posted by Marcia Oddi on Wednesday, November 16, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - More on Crown Point's big box ordinance

The Gary Post Tribune reports today:

CROWN POINT — The city’s Plan Commission on Monday agreed to give Lauth Property Group a chance to be heard at its December meeting.

But the board’s actions indicate it might simply be waiting until December to hand Lauth a denial for a development the board has already decided it doesn’t want in the city. * * *

[I]t was Lauth’s consideration of Wal-Mart as an anchor store at the development that had the Plan Commission briefly considering a denial Monday night. * * *

The commission later approved an ordinance that would require a special use zoning designation for any big box retail centers larger than 75,000 square feet.

Lauth’s development would require special use under the ordinance change. The ordinance change, expected to be passed by the City Council at a special meeting tonight, would allow the Council to place restrictions on developers and possibly restrict certain retailers, such as Wal-Mart, from building in the city.

Commission president James Wirtz called the ordinance a “slippery slope,” as favoring one retailer over another would illegally interfere with free enterprise. Wirtz offered the only dissenting vote on the ordinance change.

Cindy Duran, senior account director for Borshoff, Johnson & Matthews, a public relations and marketing firm hired by Lauth, said Monday the big box ordinance had Lauth officials worried.

She said at this time the company has no intentions of eliminating the two big box anchors from its plans, but hopes it can work around the ordinance.

For more, see yesterday's ILB entry.

Posted by Marcia Oddi on Wednesday, November 16, 2005
Posted to Indiana Law

Environment - Wells sidesteps ethanol details: Investors ask county for $50 million bond [Updated]

"Wells County Council members are still waiting for key information before they decide whether to guarantee more than $50 million in bonds for a proposed ethanol plant." That was a quote from a Fort Wayne Journal Gazette story cited in 11/11/05 and 11/12/05 ILB entries. Today, in a story headlined "Wells sidesteps ethanol details: Investors ask county for $50 million bond": the Journal Gazette reports:

BLUFFTON—Hundreds of people packed a community center Tuesday in Bluffton, where officials hosted an information meeting about a proposed ethanol plant in Wells County.

The meeting, sponsored by the Wells County Farm Credit Services and Wells County Farm Bureau, came after months of discussion about a possible $134 million ethanol plant, pushed forward by Indiana Bio-Energy LLC. The company consists of a number of local investors, including a county commissioner and the chief executive officer of the Wells County Chamber of Commerce-Economic Development.

Because of the planned private-stock sale, the group of local investors is unable to share details of the project in public and have discussed the issue with only a few County Council members at a time.

Organizers were adamant that Tuesday’s meeting would not address the Indiana Bio-Energy plant or any of the issues surrounding it, in part because of federal regulations about the planned private-stock sale. * * *

The investors are asking the county to guarantee more than $50 million in bonds, which they say are necessary to get the project off the ground. Other money for the project would come from a mortgage and private investors.

With a construction price guaranteed through the end of the year, the investors are asking the County Council to make a decision on the bond issue before costs go up.

[Updated] Tracy Warner's blog (editorial page editor of The Journal Gazette in Fort Wayne) has some good comments on the "Wells County conflicts."

Posted by Marcia Oddi on Wednesday, November 16, 2005
Posted to Environment | Indiana Government | Indiana economic development

Ind. Law - " Oprah helps capture Indiana fugitive" leads to request to change venue

Referring back to this Oct. 12, 2005 ILB entry about how Oprah Winfrey helped catch a Posey County fugitive by doing a "10 most wanted" on her show, the Indianapolis Star story cited includes this quote:

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.

Sure enough, the Evansville Courier& Press today has a story headlined "New venue sought in Davis trial." Some quotes:
Oprah Winfrey's focus on a fugitive Evansville sex offender and ensuing news coverage about his arrest make it impossible for William C. Davis to get an impartial jury in Vanderburgh County, his attorney argues.

So Davis' defense team is asking for a change of venue, to move his trial on child molestation charges to some distant Indiana county where coverage of Davis' case has not been as intense and potential jurors aren't as familiar with it.

Vanderburgh County Prosecutor Stan Levco opposes moving Davis' trial now.

"I wouldn't say that there won't be a lot of publicity about the case," Levco said. "But even if a person has watched that (television) program, that doesn't mean they can't be a fair juror."

[Update] The Star has posted this AP story on its website.

Posted by Marcia Oddi on Wednesday, November 16, 2005
Posted to Indiana Law

Tuesday, November 15, 2005

Not law but worth reading - Chicago Sun-Times series: The Fragile Black Middle Class

The Chicago Sun-Times has run a three-part series this weeking on "The Fragile Black Middle Class." The home page for the series is here. The Sun-Times series descriptors:

Part 1: The wealth gap: Home values in black neighborhoods don't appreciate as fast as those in white neighborhoods, even among homeowners with similar income levels. That leaves blacks with less wealth -- for themselves and to pass on.

Part 2: Class conflict: In largely African-American neighborhoods in Chicago, there are sometimes tensions between wealthy or upper-middle-class blacks and poor blacks.

Part 3: Slighted suburbs: Middle-class and more-affluent blacks continue to flock to the suburbs. While a growing number are integrating predominantly white suburbs, most are still moving to areas that already have large black populations.

Posted by Marcia Oddi on Tuesday, November 15, 2005
Posted to General News

Law - More on cameras in the courtroom

"Allow cameras in federal courts" is the headline to an editorial today in the Cincinnati Enquirer. Some quotes:

U.S. Rep. Steve Chabot, R-Cincinnati, has something in common with Sisyphus, the eternally frustrated rock-pusher of Greek mythology. For the past eight years, Chabot has been pushing a cameras-in-federal-courtrooms bill up Capitol Hill, only to see it roll back down again and again as the Senate ignored it.

This time could be a different ballgame. Last week, the House passed Chabot's Sunshine in the Courtroom provision 375-45 as part of a court access/security bill, and Senate Judiciary Committee Arlen Specter, R-Pa., has expressed support for the idea.

Chabot's measure would give all federal judges the discretion to allow TV cameras into civil and criminal trials, as well as appeals, on a case-by-case basis. Currently only appellate courts have such authority. * * *

"This is good public policy if you are a believer in open and accountable government," Chabot said. Exactly. Congress and many state legislatures routinely air their sessions. Every state now allows courtroom cameras under some circumstances. Many cities and counties put boards, councils and courts on cable access. As the use of cameras has grown, traditional rationales for opposing the broadcast of trials have melted away.

See the 11/10/05 ILB entry that includes discussion of the "Sunshine in the Courtroom" proposal, S. 829, which would give federal appellate and trial judges the option of opening their courtrooms to cameras.

Posted by Marcia Oddi on Tuesday, November 15, 2005
Posted to General Law Related

Enviroment - Jasper County hog farm protested, approved

The Munster (NW Indiana) Times reports today:

WHEATFIELD | Jasper County Board of Zoning Appeals approved a special exception permit Monday by a vote of 4-1, allowing a proposed hog farm to set up shop.

The residents say this isn't the end. They already started taking donations to hire an attorney.

Angry residents were fighting the proposed farm of 2,496 hogs because they say the operation could lead to air, water and land contamination.

Residents, who collected nearly 1,000 signatures in about 10 days, protested the plans by DeMotte-based Belstra Milling Co. at a Jasper County Board of Zoning Appeals meeting Monday. * * *

Belstra, which requested a special exception to operate the confined feeding operation in east Jasper County on 20 acres of land owned by Harper Brothers Grain and Livestock, first applied for permission Oct. 13. The Indiana Department of Environmental Management approved the plan soon after and the Jasper County zoning board issued a permit for the breed-to-wean operation after an public hearing Oct. 24 that brought little or no opposition.

Marlatt said not all residents were told about what was going on. She said she learned about the hog farm when she looked out her kitchen window and saw a new building under construction a half mile away. * * *

Belstra, which has operations in Jasper and Newton counties and in Illinois, is a family-owned company. The Belstra Group includes the feed mill in DeMotte, five Pig Improvement Co. gilt multipliers made up of 7,000 sows in Northwest Indiana and the 160-head boar stud operation in Kankakee County, Ill.

Malcolm DeKryger, a Belstra vice president who will oversee operation of the Jasper County site, said he notified residents but did miss some of the landowners.

The Gary Post-Tribune also has a somewhat earlier report:
RENSSELAER — Protests continued into the night Monday against a proposed confined-feeding hog operation in northeastern Jasper County.

Board of Zoning Appeals members moved Monday night’s meeting to the superior courtroom to accommodate the more than 100 remonstrators, most opposed to the plan by Belstra Milling Inc. of DeMotte.

Board members hadn’t votede on the controversial proposal as of press-time late Monday night.

The company, which has 13 hog farms in Jasper and Newton counties and in Illinois, has asked to build two barns for 2,496 pregnant and newborn hogs on 20 acres immediately south of the Jasper-Pulaski Fish and Wildlife Area.

Malcolm De Kryger, vice president of Belstra, read a letter dated Oct. 24 from the Department of Natural Resources that operates the wildlife area, which included the statement: “We do not oppose construction of the facility.”

Posted by Marcia Oddi on Tuesday, November 15, 2005
Posted to Environment | Indiana economic development

Ind. Law - NW Indiana updates on adult zoning; big box regulation

Adult businesses. "Chesterton approves adult-business ordinance" is the headline to this story today in the Gary Post-Tribune. Quotes:

CHESTERTON — The Town Council on Monday officially put into place a safety net they hope will keep morally questionable businesses in their place.

In a unanimous vote, the council approved a sexually oriented business ordinance to control the location of adult-type businesses.

The Plan Commission had sent a unanimous recommendation to the council in favor of the ordinance after its Oct. 20 vote.

The town, which been working on a sexually oriented business ordinance, was spurred to complete it sooner rather than later when earlier this year, a massage parlor attempted to locate a business in town.

The Munster (NW Indiana) Times has a similar report:
The idea for such a regulation was raised several years ago by former council member John Kosmatka. It gained steam earlier this year when the town's board of zoning appeals rejected a use variance for a massage parlor after learning that one of the petitioners had previously been arrested on prostitution-related charges.

Council member James Ton called it an important night for Chesterton and praised Kosmatka for his initiative. "Fortunately we've not had to deal with such businesses in Chesterton," he said. The new regulations were necessary to protect property values and protect children, Ton said.

Council member Paul Christofersen said the ordinance was solidly based on other Indiana laws and was therefore easily defended if any challenge were brought to it.

See also this ILB entry from 11/13/05 with details of the Chesterton proposal.

In a related story, the Times reports today:

LAKE COUNTY | Neon pink signs adorn the window of a blue pole-barn-style storefront with brick façade at the southeast corner of Ind. 2 and U.S. 41.

Residents were surprised and alarmed late last week to see "Books," "Toys" and "DVDs" next to an unmistakable "XXX" near their local school. The sandwich-style sign outside read, "Must be 18, Must have ID, Must pay $5 cover fee at the door -- fee goes towards purchase."

Ned Kovacevich, director of the Lake County Plan Commission, said the adult store voluntarily closed down Monday after the Planning Commission issued an order to call the office because the store was not on a site zoned for such a business.

The store's owner could not be reached for comment. Kovacevich said the business owner might not have known about the zoning restrictions.

Big box retail. The Post-Tribune reports:
CROWN POINT — It was presented as a way to keep big box retail out of Crown Point. But in the end, Plan Commission members did not apologize for passing an ordinance specifically aimed at keeping Wal-Mart out, while leaving room for more desirable retailers.

The Council Chamber was filled to standing room only, many staying until after 10 p.m., to voice their opposition to the Wal-Mart anchoring Lauth Development Group’s proposed development at Interstate 65 and U.S. 231.

The comments were made as part of a public hearing on a proposed ordinance that would require special use zoning for any buildings over 75,000 square feet.

The ordinance would require a vote by the City Council to approve any special use zoning. And the council would be allowed to place conditions on the developer, which could lead to the hand-picking of desirable retailers.

The Plan Commission voted 5-1 to send a favorable recommendation to the council, which will decide on the ordinance change at a special meeting scheduled Wednesday.

The Times reports:
CROWN POINT | The little guys had their say Monday on the impact a big-box store could have on Crown Point. * * *

After getting through a lengthy agenda, the Plan Commission approved an ordinance, 5-1, limiting the size of retail buildings in a business district to 75,000 square feet. The move would force developers wanting to build larger stores to obtain a special use permit and go before the Board of Zoning Appeals and the City Council.

It's now up to the City Council to consider the ordinance. The city announced Friday the scheduling of a special City Council meeting at 7 p.m. Wednesday in the council chambers to discuss it. * * *

Mayor Dan Klein started off the public hearing on the ordinance limiting retailers' sizes. Klein said he didn't want to belittle Wal-Mart, but show the city is in good financial shape and doesn't have to take the first thing that comes along. He likened the fight against a Wal-Mart to an effort by a group of people in the 1970s to save the old courthouse downtown. [my emphasis]

"Thank God they did," he said. "Let's look to the future like the people who saved the courthouse and get something better for Crown Point."

Posted by Marcia Oddi on Tuesday, November 15, 2005
Posted to Indiana Government | Indiana Law

Ind. Law - Lawsuit targets Hartford ethanol plant

"Lawsuit targets Hartford ethanol plant" is the headline to a story today in the Muncie Star-Press. Some quotes:

HARTFORD CITY -- Dan and Susan Baughey, 1704 W. Water St., filed a lawsuit Monday that could halt the proposed $150 million Hartford Energy ethanol plant.

In 1999, the area plan commission and county commissioners re-zoned land for the expansion of Blackford Industrial Park over the objections of the Baugheys and others.

In February of that year, the Blackford Industrial Development Corp. promised county officials that it had created restrictive covenants to protect the interests of the Baugheys and other neighbors, the lawsuit contends.

"However, the BIDC never filed any restrictive covenants against the real estate," according to the lawsuit filed by the Muncie firm DeFur Voran, which accuses BIDC of breach of contract and constructive fraud.

BIDC now intends to convey the real estate in question -- without restrictive covenants -- to Hartford Energy, Baughey says.

Hartford Energy's use of the property would violate the covenants that BIDC led county officials to believe existed in order to induce them to approve the rezoning, the lawsuit argues.

Baughey claims Robert Barry, an attorney and officer of BIDC, represented to the plan commission and to county commissioners that BIDC had filed restrictive covenants against the property.

Exhibits in the lawsuit include minutes of public meetings in 1999 and a Hartford City News-Times news article from that year.

Posted by Marcia Oddi on Tuesday, November 15, 2005
Posted to Environment | Indiana Law | Indiana economic development

Ind. Decisions - More on City orders billboards down by Dec. 10

Following up on the ILB entry from 11/10/05 on the Indiana Supreme Court ruling 11/3/05 in Metropolitan Development Commission of Marion Co., et al v. Pinnacle Media, Jon Ketzenberger writes today in the Indianapolis Star, in a column titled "Billboard battle still showing signs of life," that:

Pinnacle Media doesn't think the high court understood the implications of its decision, which could make it easier for government to nix projects already out of the starting gate. "There is a lot more to this than just 10 signs," said Philip Nicely, an attorney and part-owner of Pinnacle.

Attorneys for the company will ask the court to reconsider its decision because they believe it erodes a 46-year-old precedent that protects landowners' rights to proceed with construction once they've received government permission. But Pinnacle's permission came from the state, not the city. That distinction has been the source of much consternation for city leaders who thought Pinnacle was trying to go around them.

Still, the court's ruling "opens the door to change the rules of the game on a landowner prior to the landowner's project coming out of the ground," said Zeff Weiss, a real estate attorney with Ice Miller.

In 1999, Pinnacle received permission from the Indiana Department of Transportation to build two signs near the I-69/465 interchange. It didn't need city permission because the signs were on former public rights of way that weren't zoned. The company sought permission to build 15 more signs -- and that's when the fight began.

A week after the applications were made in April 2000, the city began the process of changing its zoning ordinances to forbid the billboards. By the time state approval was granted for 10 signs in July 2001, the new city rules were in place. Pinnacle went ahead with construction, and the battle entered the courts. Pinnacle won the first two rounds, and then the Supreme Court ruled in the city's favor.

The court said zoning ordinances can be changed as long as construction on a project hasn't actually begun. Leaning on its state permits, Pinnacle didn't erect its signs until after the city had banned them.

The ruling puts Indiana law on par with "most of the rest of the country," said Kobi Wright, the city's attorney. If a developer "sat on his rights and the zoning laws change, then that (development) right never vested," Wright said.

Pinnacle has until Dec. 5 to ask the high court to rehear the case. Company attorney Alan Townsend understands his chances for victory are slim. The Supreme Court has only agreed to rehear one civil case in the last two fiscal years for which information is available.

And another point: The Supreme Court's ruling earlier this month was unanimous.

Posted by Marcia Oddi on Tuesday, November 15, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Court of Appeals to hear case that tests child-sex laws

On Oct. 30th Kevin Corcoran of the Indianapolis Star had a long and comprehensive story headlined "Case challenges child-sex laws: Teen charged with molesting, but he was under the age of consent at time of the sexual encounters." It began:

William C. Bopp could be convicted of child molesting in Marion County, even though he was a child himself when he engaged in sexual activity with a younger girl.

The Indianapolis teenager has told the Indiana Court of Appeals that charging him violates his constitutional rights, because state law says children younger than 14 who engage in sexual activity are presumed victims and can't legally consent.

When underage children engage in sexual activity with each other, however, they sometimes face criminal charges that can follow them into their adult lives, even when no physical force or threat of force is involved. * * *

Bopp's attorney, Robert W. Hammerle, has asked the Court of Appeals to throw out the charges against his client, saying the case is an example of child-sex prosecutions run amok.

Marion County Prosecutor Carl Brizzi disagrees, but he says the Bopp case could clear up uncertainty surrounding how child-sex laws are applied.
"I don't agree that if you can't consent, you can't form the proper intent to commit a crime," Brizzi said. "Either the Court of Appeals can weigh in or the legislature can weigh in." * * *

Hammerle said he isn't seeking to change Indiana law regarding teens who engage in sexual activity. Instead, he told the Court of Appeals that Indiana's child-sex laws are being unconstitutionally applied. He wants the court to determine whether it's legally permissible to charge children who can't consent with child molesting when the use of force is not alleged.

The state's child-molesting law includes no minimum age for prosecution, but criminal intent must be proven beyond a reasonable doubt, and consent is no defense.

Hammerle said he has no objection to prosecutors filing child-molesting charges in cases involving juveniles when force is involved. He just doesn't think the laws should be applied when they lead to "absurd" results, such as criminalizing preadolescent and adolescent sexual exploration.

In Indiana, there's no clear line that separates the victim and the accused in such cases. Several other states require minimum differences between the ages of the defendant and the victim of two to five years before criminal charges can be filed. "This case resonates far beyond Bopp," Hammerle said. "Every parent has a child literally walking on a trap door."

A side-bar addressed the Indiana law, Indiana precedent, and other states' laws.

Today a brief story in the Star reports that:

The Indiana Court of Appeals has agreed to hear a case challenging the constitutionality of how the state's child-sex laws are being applied in cases involving children too young to legally consent to sex. * * *

Bopp was charged with two counts of child molesting in February, more than two years after the relationship ended. He is accused of being sexually active with the girl from the time he was 9 until a month after he turned 14. She was 6 when the sexual activity started and 11 when it ended, according to court records. The appellate court could clear the way for his trial or dismiss the delinquency charges against him.

Posted by Marcia Oddi on Tuesday, November 15, 2005
Posted to Ind. App.Ct. Decisions

Law - Pro bono work: More on Winston & Strawn LLP's free defense of former Illinois Gov. George Ryan

Following up on yesterday's ILB entry, today's Chicago Tribune reports, in a story headlined "Big law firm's decision to defend Ryan for free sparks court skirmish:"

Former Gov. George Ryan's legal team, concerned that jurors at his trial will conclude he is wealthy because of the many lawyers defending him, sought Monday to inform jurors that Ryan hasn't paid a nickel toward his mammoth legal fees. * * *

With prosecutors making Ryan's use of cash a central theme of their case, Ryan's attorneys said, it would be unfair to let jurors wrongly assume the former governor is footing the bill for his extensive legal team.

The defense has portrayed Ryan, 71, as a longtime public servant living modestly with few assets beyond his Kankakee home of 40 years.

In a telephone interview Monday, former Gov. James Thompson, managing partner of the law firm of Winston & Strawn, said that the cost of defending Ryan, with at least 16 lawyers working full-time on the case, has reached $10 million. And that doesn't count several hundred thousand dollars in expenses.

With the trial possibly several months from completion, Thompson said there's no way to estimate the final cost to the firm.

The defense asked U.S. District Judge Rebecca Pallmeyer to instruct jurors that Ryan hasn't paid any legal fees. * * *

Ryan hasn't paid "a single nickel" in legal fees, Webb said. The former governor's legal defense fund, which in September showed expenditures of almost $370,000, has covered about one-third of the defense's out-of-pocket expenses so far, Webb said.

"What this jury is going to believe is he must have put a lot of money away," Webb said outside the jury's presence. "It will call into question whether or not he took bribes."

Pallmeyer seemed disinclined to give any instruction and suggested one might backfire for the defense.

"There are other defendants who appear before me that don't have the money to hire Winston and Strawn," she said. "Clearly, there is a difference between Mr. Ryan and those defendants. Do we want to explain that difference to the jury?"

Posted by Marcia Oddi on Tuesday, November 15, 2005
Posted to General Law Related

Law - Secret dockets in Florida federal courts -- is hiding cases continuing?

A very long article from the Florida Daily Business Review is published at Law.com today, headlined "Fla. Federal Judges Slammed for Secret Docketing: Judges have been reprimanded by 11th Circuit for hiding cases -- but is the practice continuing?" Some quotes:

Last month, a three-judge panel of the 11th U.S. Circuit Court of Appeals chastised judges of the Southern District of Florida for completely hiding cases from public view by placing the cases on a secret court docket. * * *

Now, one of the South Florida federal judges who agreed to hide a case admits that she made a mistake and vows never to do it again. "Judges are not gods," U.S. District Judge Patricia Seitz, a seven-year veteran of the federal bench, said in an interview. * * *

But while Seitz, who sits in Miami, said she would be "surprised" if any more cases now are being supersealed in the Southern District of Florida, other observers say it may still be happening.

"How would you know?" asked Randall Marshall, legal director of the ACLU of Florida, which filed an amicus brief in the 11th Circuit case. "There could be others, definitely."

There is also another reason for concern about whether the federal courts have come clean on the secret dockets issue. In its 84-page ruling in U.S.A v. Juan Nicholas Bergonzoli and Fabio Ochoa-Vasquez, released Oct. 20, the 11th Circuit panel failed to acknowledge that the appellate court itself was deeply implicated in secret docketing. * * *

In March 2003, the Daily Business Review disclosed the existence of the Bellahouel case in the Southern District of Florida. It was not listed on the public court docket. The Review later found a second case, that of Nicholas Bergonzoli, who had been convicted on a drug offense and sentenced to 39 months in prison.

In both cases the public court docket and court record contained no case number, no parties, no facts, no judge, no attorneys and no documents that were publicly accessible. Bellahouel objected to the supersealing, but he and his attorney were placed under gag orders.

Secret docketing makes it virtually impossible for anyone not involved in such cases to know of their existence. Even parties involved in the cases sometimes could not obtain copies of certain matters or access the docket so they could assure themselves as to what documents actually were filed with the court.

Criminal defendants lose the protection of public knowledge of their case. Without court information, there is no way for the public and the news media to hold the courts, prosecutors and parties accountable for their actions. And the public and the news media are deprived of information that could trigger public discussion of important public policy issues, such as the appropriateness of government national security actions.

While there are established procedures in the federal system for sealing information in a publicly docketed case on an individualized basis, there is no procedure for removing a case from the public docket and placing it in an alternative, deep-cover docket. * * *

Why the federal judges involved in these cases were willing to impose such extreme secrecy without proper procedures remains unclear. The judges included U.S. District Judges Huck, Seitz, Donald M. Middlebrooks, K. Michael Moore, William P. Dimitrouleas and Shelby Highsmith; Magistrate Judges Lurana Snow and Ann E. Vitunac; and the three appellate judges who voted in secret in March 2003 to keep Bellahouel's case sealed, Stanley F. Birch Jr., Ed Carnes and Procter Hug Jr. * * *

Even now, Bellahouel's appellate case remains hidden from the public. A search of the electronic federal court database shows no case involving a Bellahouel either in the Southern District of Florida or in the 11th Circuit.

The ILB had another entry on secret dockets on 6/9/04, dealing with secret dockets in Connecticut state courts. A quote from a Law.com report at the time:
A February 2003 article in the [Hartford] Courant reported that some cases were sealed just because prominent individuals had requested it. The article stated that judges "have selectively sealed divorce, paternity and other cases involving fellow judges, celebrities and wealthy CEOs that, for the most part, would play out in full view of the public."

Posted by Marcia Oddi on Tuesday, November 15, 2005
Posted to General Law Related

Ind. Courts - Governor appoints judges to new courts in Dearborn, DeKalb, Howard, Monroe, and Vigo counties, plus fills vacancy in Boone County

A press release issued yesterday from Gov. Daniels' office announces:

Governor Mitch Daniels announced today the appointment of six judges throughout the state. * * * The judges in Dearborn, DeKalb, Monroe, and Vigo counties will begin their duties on January 1, 2006, and the judge in Howard County will begin on January 6. The term of appointment in these five new courts expires on December 31, 2006. To continue in the position, each judge must be elected to a succeeding term.

Sally A. Blankenship of Lawrenceburg has been appointed judge of Dearborn Superior Court II. For the past 10 years, she has served as prosecuting attorney for the Seventh Judicial Circuit, prior to which she spent four years as deputy prosecuting attorney for Dearborn and Ohio counties. Blankenship received her undergraduate degree from Eastern Kentucky University and her law degree from Northern Kentucky University.

Monte L. Brown of Spencerville has been appointed judge of DeKalb Superior Court II. Brown has served as DeKalb County Prosecuting Attorney for 17 years. He has also worked in private practice for 27 years. Brown received his undergraduate degree from Western Michigan University and his law degree from Indiana University School of Law - Indianapolis.

George A. Hopkins of Kokomo has been appointed judge of Howard County Superior Court IV. Hopkins currently serves as Howard County Deputy Prosecutor. Previously he has worked in private practice and served as a judge advocate in the Indiana Army National Guard, retiring with the rank of colonel. Hopkins received his undergraduate and law degrees from Indiana University School of Law - Bloomington.

Jeffery Alan Chalfant
of Bloomington has been appointed judge of Monroe County Circuit Court VIII. Chalfant is currently an attorney with the firm of Bauer & Densford and has previously served as a deputy prosecutor and public defender in Monroe County. He received his undergraduate degree from DePauw University and his law degree from Indiana University School of Law - Bloomington.

James R. Walker of Terre Haute has been appointed judge of Vigo Superior Court VI. Walker has worked in the Vigo County Prosecutor’s Office for 26 years, serving as chief deputy prosecutor for the past 22 years. He received his undergraduate degree from Indiana State University and his law degree from Indiana University School of Law - Bloomington.

An appointment was also made to fill a vacancy created by the resignation of an elected judge in Boone County: Rebecca Sue McClure of Lebanon has been appointed judge of Boone County Superior Court II. She succeeds Judge James R. Detamore, who is resigning effective December 31. McClure currently serves as assistant executive director of the Indiana Prosecuting Attorneys Council. Previously, McClure served as Boone County Prosecutor for 11 years and has worked in private practice. She received her undergraduate and master’s degrees from Butler University and her law degree from Indiana University School of Law - Indianapolis. McClure’s appointment will begin on January 1, 2006 and conclude on December 31, 2008.

Posted by Marcia Oddi on Tuesday, November 15, 2005
Posted to Indiana Courts

Monday, November 14, 2005

Law - Briefs filed in one of two campaign finance cases before U.S. Supreme Court

In two entries (here and here) on 9/27/05, the ILB reported on two campaign finance cases granted cert by the U.S. Supreme Court. Terre Haute attorney James Bopp, Jr., lead counsel in both cases, reports in a press release today that:

Wisconsin Right to Life ("WRTL") filed its opening Brief of Appellant in the U.S. Supreme Court case of Wisconsin Right to Life, Inc. v. FEC (04-1581). The case is seeking an exception for grassroots lobbying from McCain-Feingold's prohibition on corporate funding of "electioneering communications" (i.e., targeted broadcast ads referencing a federal candidate within 30 days before a primary election or 60 days before a general election).
The full press release is available here. The brief is available here.

The filings should soon be available here, on the Northwestern University School of Journalism site - On the Docket, and here, on the ABA briefs page.

Here is the Supreme Court docket on the case.

Posted by Marcia Oddi on Monday, November 14, 2005
Posted to General Law Related

Ind. Decisions - Still more on Indiana hearsay/confrontation clause case to be heard by U.S. Supreme Court

The Peru Tribune has this story by Laurie Kiefaber on the Indiana confrontation clause decision, Hammon v. State (6/16/05 IndSCt), that will be heard by the U.S. Supreme Court this term. Some quotes from near the middle of the story:

While the case might seem insubstantial, being a misdemeanor case with a short sentence, the implications could be great, [Peru attorney Robert Spahr, who initially presented the case in Miami Circuit Court] said. If the decision on this case is upheld at the federal level, it's just a short step to felony cases.

At issue is the Sixth Amendment to the U.S. Constitution and the concepts of "excited utterance" and hearsay as evidence in court. The Sixth Amendment states "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ... (and) to be confronted with the witnesses against him ..."

During this trial, Hammon's accuser or witness did not show up for the trial. Brent Davis, Miami County prosecuting attorney in this case, said he did not know why the victim did not show up for the trial.

However, a police officer was allowed to repeat what the battery victim told him during the trial. His testimony was admitted as evidence, Spahr said, even though in previous cases this might have been considered "hearsay evidence," which is evidence based not on a witness's personal knowledge but on matters told him by another, according to "Webster's Ninth New Collegiate Dictionary."

What the victim told the police officer was termed an "excited utterance" in this case. An "excited utterance" is "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition," according to the "Indiana Rules of Evidence."

"For a hearsay statement to be admitted as an excited utterance three elements must be shown: (1) a startling event; (2) the declarant made the statement while under the stress of the excitement caused by the event; and (3) the statement relates to the event," according to the Indiana Supreme Court petition for transfer.

Even though the victim did not show up for trial and did not confront Hammon, as is usually done during a trial, the "excited utterance" was accepted into evidence by Burke.

"Admissibility turns on 'whether the statement was inherently reliable because the witness was under the stress of an event and unlikely to make deliberate falsifications,'" according to Indiana Supreme Court documents.

Spahr said this is unusual because in criminal cases there is a higher standard of proof for the prosecution.

"Personal liberty is at risk so there must be proof (of guilt) beyond a reasonable doubt," Spahr said. "... In the past (this type of evidence being accepted in court) had never happened in Miami County. If this is so new for Indiana, it hasn't happened anywhere.

"The ability to challenge memory and statements of alleged victims is a rather important part of the practice of criminal law," Spahr added.

See these earlier entries from 11/2/05 and 11/3/05.

Posted by Marcia Oddi on Monday, November 14, 2005
Posted to Ind. Sup.Ct. Decisions

Courts - Judges in South Dakota may lose immunity, article cites Indiana

An AP story today headlined "Judges in S.D. may lose immunity" reports:

PIERRE, S.D. -- A movement is under way in South Dakota to turn the tables on members of the bench.

Activists are trying to put a radical measure on next year's ballot that could make South Dakota the first state to let people who believe their rights have been violated by judges put those judges on trial. Citizens could seek damages or criminal charges.

The measure would overturn more than a century of settled law in the United States by stripping judges of their absolute immunity from lawsuits over their judicial acts. * * *

Legal experts warned that such a provision could dangerously undermine the independence of South Dakota's judiciary, plunge the court system into anarchy, and run afoul of the U.S. Constitution.

And they noted there are already remedies available to the public: Bad rulings can be overturned on appeal, and judges who break the rules can be punished by state disciplinary boards and, in South Dakota and other states, voted out of office. * * *

Judicial immunity, the doctrine that says judges cannot be sued over their judicial acts, was established by the U.S. Supreme Court in an 1871 case.

The South Dakota amendment would eliminate state judges' immunity in cases involving deliberate violations of the law or someone's constitutional rights or deliberate disregard of the facts. * * *

[Businessman William Stegmeier, a leader of the movement, who turned in 46,800 signatures last week to put the proposed state constitutional amendment on the ballot in November 2006] said he has never had a bad experience in court. In fact, supporters of the measure have no examples of any problems in South Dakota. But Stegmeier said the amendment could help curb the abuses he has heard about across the country.

On its Web site, the group promoting the amendment, South Dakota Judicial Accountability, cites an Indiana case from the 1970s involving the sterilization of a 15-year-old girl, and argues that stripping judges of immunity would also help prevent decisions such as the recent U.S. Supreme Court ruling that allowed homes to be seized for private development.

Well, here is the South Dakota Judicial Accountability (SDJA) website, but I see no mention of Indiana.

Posted by Marcia Oddi on Monday, November 14, 2005
Posted to Indiana Courts

Law - N.H. Puts a Price on Panoramas: Property Taxes Soar Based on Scenery

"N.H. Puts a Price on Panoramas: Property Taxes Soar Based on Scenery" is the headline to a story today in the Washington Post. The story begins with this photo, with this caption:

N.H. resident Brad Wilder stands in front of his hillside home's sweeping view. The town of Plainfield, N.H. determined that Wilder's view is worth $237,265, and requires Wilder to pay about $4,700 in property taxes on it annually.
More quotes from the front-page story:
PLAINFIELD, N.H. -- The view from Brad Wilder's hillside house is a 270-degree panorama of New England high country: the rugged peak of Mount Ascutney, the reddening leaves and white-painted houses of the Connecticut River valley and -- on some lucky fall days -- migratory geese cruising by at eye level.

His vista is stunning. But you can't say it's priceless.

Wilder's view has actually been valued right down to the dollar: According to the town of Plainfield, it is worth $237,265. In 2003, town officials deemed it a bonus feature of his home, like a third bathroom or marble countertops, and ordered him to pay about $4,700 in property taxes for it.

Which left Wilder with a lot of questions. Chief among them: How do you value a view?

That is the strange conundrum that is captivating New Hampshire at the moment, as town officials have embarked on an controversial quest to quantify -- and then tax -- the beauty of their residents' vistas.

Now, landowners with high-value views are livid about their tax bills, and they have started pressing officials to explain just how, exactly, they managed to distill the ineffable majesty of nature into dollar values.

Turns out, it is not a totally exact science. "It's more of an 'I know it when I see it' kind of thing," said Thomas Holmes, the assessor for the town of Conway, N.H.

The problem in New Hampshire is not simply that "view factors" are being used in property appraisal -- that is by no means unique to the Granite State. In most places, experts say, if a property's view is good enough to make a buyer pay something extra for it, an assessor will try to estimate that something extra and include it in the property's assessed value. * * *

But New Hampshire is different, because the state's views have become so sky-high valuable, and so fast. Statewide, one assessor said the maximum value added because of a view has jumped from a maximum of around $20,000 about 10 years ago to $200,000 or more now.

One example among many: In Winchester, N.H., Bennet Nicholson's view of the Connecticut River valley helped bump his property value up from about $98,000 in 2002 to about $273,000 in 2003 -- and more than doubled his property taxes.

Check out photos of the types of views that add from 50% to 500% to the value of a piece of property.

Posted by Marcia Oddi on Monday, November 14, 2005
Posted to General News

Law - Pro bono work: Winston & Strawn LLP's free defense of former Illinois Gov. George Ryan

Last Thursday the ILB posted an entry about issues surrounding the pro bono work of Chicago-based firm of Jenner & Block. Today, it is Chicago-based Winston & Strawn, but with an entirely different focus. The headline to the story in Crain's Chicago Business is: "Saving client Ryan: a $10-million mission - Meter runs on Winston as trial ace Webb defends ex-guv gratis." Some quotes:

Winston & Strawn LLP's free defense of former Gov. George Ryan, led by top-gun trial lawyer Dan Webb, has cost the firm more than $10 million so far, an unprecedented instance of largesse that's drawing both cheers and gasps from the legal community.

The $10-million-plus figure comes from Winston's chairman, former Gov. James R. Thompson, who terms the bill "huge" and says it is sure to rise substantially in "the months yet to go" in Mr. Ryan's trial on federal corruption charges. More than a dozen Winston attorneys have pitched in on the case since Mr. Ryan was charged in 2003.

Mr. Thompson describes the remarkable expense — 2% of the firm's annual revenue — as a matter of honor, and suggests the decision to forgo hourly billings and pick up the other costs of the trial will help Winston gain business in the future. "We don't walk away from clients," Mr. Thompson says. "Winston & Strawn doesn't shy away from tough cases."

Posted by Marcia Oddi on Monday, November 14, 2005
Posted to General Law Related

Ind. Decisions - Court of Appeals issues BMV decision; more

In Joel Silverman, Commissioner of Indiana Bureau of Motor Vehicles v. Richard Fifer, issued today, Judge Friedlander writes:

Joel Silverman, in his capacity as the Commissioner of the Indiana Bureau of Motor Vehicles (the BMV), appeals an order of the trial court ordering the BMV to issue a restricted driver’s license to Richard Fifer, who is employed as a truck driver. The BMV contends the trial court’s order was in violation of federal law and thus erroneous. We reverse.

We note at the outset that this case involves an appeal of an order to issue a hardship license while Fifer’s operator’s license was suspended. Fifer’s operator’s license, and thus, presumably, his commercial driver’s license (CDL), were reinstated during the pendency of this appeal. Therefore, the question is moot as to this particular controversy. We agree with the BMV, however, that this case is liable to recur and involves issues related to public safety. In such cases, we may, at our discretion, make an exception to the mootness doctrine and address the merits of the case. We opt to do that here. * * *

The question before us, then, is whether the trial court may order the BMV to grant a hardship license that functions as a CDL, but is not so labeled. We think it indisputable that a – if not the – primary purpose of the Commercial Motor Vehicle Safety Act is highway safety. See Center for Auto Safety, Inc. v. Nat’l Highway Traffic Safety Admin., 342 F.Supp.2d 1 (App. D.C. 2004). The purpose of forbidding the issuance of a CDL to a person whose license is suspended under the enumerated circumstances has nothing to do with the official designation of the license itself, and everything to do with preventing that person from operating a commercial motor vehicle when it might be dangerous to do so. Thus, irrespective of labels and terminology, 49 U.S.C. § 31311 should be interpreted as a prohibition against the issuance of any license, however designated, that would authorize a person to operate a commercial motor vehicle under the circumstances set out in 49 U.S.C. § 31311.3 The trial court’s order in the instant case was erroneous.

Also today the Court of Appeals issued two sentencing decisions (one on rehearing); a 26-page appeal of a dissolution order (including a dissent); and Fox Development, Inc. v. Michael England, an opinion by Judge Najam, involving the question of an oral contract for the purchase of realty:
The issue, then, is whether Fox was required to plead an exception to the statute of frauds in order to survive a motion for judgment on the pleadings. Because this case presents an issue of first impression in Indiana, we look to other jurisdictions for guidance. * * *

Fox’s complaint alleged an oral contract for the sale of real property, which on its face is unenforceable under the statute of frauds. Although no technical forms of pleading are required, see Indiana Trial Rule 8(E)(1), it was incumbent upon Fox to anticipate in the complaint, or to meet in an amended complaint, the Englands’ affirmative defense that the breach of contract claim was barred by the statute of frauds. Thus, to overcome the statute, the complaint or an amended complaint should have alleged exceptions to the statute of frauds in order to survive a motion for judgment on the pleadings. Thus, we hold that the trial court did not err when it granted judgment on the pleadings in favor of the Englands. Affirmed.

Posted by Marcia Oddi on Monday, November 14, 2005
Posted to Ind. App.Ct. Decisions

Ind. Law - Governor opened a Pandora's box of time issues

The Indianapolis Star reports this morning on its front page, in a story by its political reporter Mary Beth Schneider, that at a federal Department of Transportation hearing yesterday that was supposed to be first of 4 about county-level changes, "Hoosiers at hearing clamor for 1 time zone." The report begins:

LOGANSPORT, Ind. -- People came mad and left disappointed at the first of four federal hearings on Indiana's time zones.

For more than four hours Sunday, speaker after speaker argued that all of the state should be in a single time zone, with virtually everyone favoring Central time.

But that option isn't on the table at this point, said Judy Kaleta, the senior conflict resolution counsel for the U.S. Department of Transportation. She is presiding over all four hearings.

For continuing, and consistently thoughtful, coverage of the Indiana time issues, I recommend Lafayette attorney Doug Masson's blog.

Posted by Marcia Oddi on Monday, November 14, 2005
Posted to Indiana Law

Sunday, November 13, 2005

Environment - Pointing fingers across the state line

"Pointing fingers across the state line: Industry groups, environmentalists and politicians are bickering over who is to blame for regional ozone problems" is the headline to a story by Lauri Harvey today in the Munster (NW Indiana) Times. ome quotes:

No one disputes the region has problems with ozone, but which state to blame for it is a clear point of contention.

Indiana Gov. Mitch Daniels on Nov. 4 announced plans to petition the U.S. Environmental Protection Agency to declare Lake and Porter counties compliant with federal Clean Air Act guidelines for ozone.

Both counties have exceeded federal standards for ozone levels in the past, making them part of a regional nonattainment zone and requiring more stringent industrial and vehicular emissions standards to reduce air pollution.

But Daniels claims both counties have been in compliance with the requirements for a decade and should be released from the burden of meeting the tougher requirements.

The problem is, the U.S. EPA measures ozone compliance not by county, but by metropolitan region as a whole. Agreeing to Daniels' proposal would exclude Lake and Porter counties from the Chicago metropolitan area for purposes of ozone testing.

Businesses and the state Chamber of Commerce lauded Daniels' proposal, saying the federal requirements to meet stringent ozone standards are hindering economic development in Northwest Indiana.

The story includes a great aerial shot of the lakeshore, looking towards Chicago, perhaps from near Porter Beach.

Posted by Marcia Oddi on Sunday, November 13, 2005
Posted to Environment

Ind. Law - Wife of NiSource CEO walks on 'opposite side of the street'

"Wife of NiSource CEO walks on 'opposite side of the street'" is the intriguing heading to this story today by Keith Benman in the Munster (NW Indiana) Times. Some quotes:

Many utility chiefs spend much of their time battling public interest lawyers.

Robert Skaggs Jr., 51, chief executive officer of the nation's third-largest natural gas distributor, goes home to one at night.

Skaggs, who became CEO of Merrillville-based NiSource Inc. in July, is married to Kimberly Skaggs, a public interest lawyer with a national reputation.

Kimberly Skaggs, 46, has gone to bat for welfare recipients, single parents, immigrant children, utility customers and others in a five-year stint as executive director of the Equal Justice Foundation in Columbus, Ohio.

The foundation also has worked closely with Ohio Citizen Action, which has defended the poor from utility shutoffs and pressed for the rights of utility customers to band together to buy in bulk.

The fact that Robert Skaggs, who made $1.55 million at NiSource last year, is married to someone who fights for the underdog, intrigues those in the public interest, labor and civil rights arenas in Northwest Indiana.

Posted by Marcia Oddi on Sunday, November 13, 2005
Posted to Indiana Law

Ind. Courts - Costs of determining whether a person is competent to stand trial

The Fort Wayne Journal Gazette has an informative story by Sara Eaton headlined "Fit to stand trial? Courts decide: Spending on competency cases rises." It begins:

Allen Superior Court Judge Fran Gull had to decide twice last week whether a person appearing before her was competent to stand trial. She found one person was and one person wasn’t.

Both cases involved violent crimes.

The person charged with attempted murder will be committed to a state mental hospital indefinitely until he is found to be competent or until he dies. He repeatedly tried to tell his attorney about “top secret information” while she was trying to prepare his defense.

Meanwhile, the other person, charged with criminal confinement, will stand trial this month.

Gull’s decisions were based on reports submitted by local psychologists or psychiatrists who evaluated both defendants – a service paid for by taxpayers.

The evaluations are necessary to protect the constitutional rights of those who are charged with crimes. Allen Superior Court appears to be handling more cases in which evaluations are ordered. So far this year, the court has paid $33,669 to doctors and agencies for work completed on 30 cases, ranging from misdemeanors to robberies to burglaries to murders.

Despite a procedural change implemented to control spending, Allen Superior Court will likely spend more money on these evaluations in 2005 than any recent year. In 2002, the court spent $35,167 on 29 cases – the highest amount in recent years.

The number of cases in which evaluations are performed seems to be growing in recent years according to one doctor, who cited an increased understanding of mental illness by criminal justice officials.

Posted by Marcia Oddi on Sunday, November 13, 2005
Posted to Indiana Courts

Law - Illinois Governor faces merit hiring questions

Kentucky has an ongoing investigation into alleged merit hiring violations by its Governor (see most recent ILB entry here from 11/11/05). Chicago has "a long-standing court decree restricting patronage hiring at City Hall" (see ILB entry here).

Today the Chicago Tribune has an investigative report about the Illinois' Governor's hiring practices, headlined "Questions mount on state hiring." It begins:

On his first full day as Illinois' new governor, Rod Blagojevich dramatically displayed his reform agenda by firing dozens of his predecessor's allies and ordering a freeze on state hiring.

"I intend to use every power I have and my discretion as governor to eliminate unqualified, unnecessary and overpaid individuals wherever I find them in state government," the Democrat declared in January 2003.

The symbolism of Executive Order 1 was an electric way of telling Illinois voters that the cronyism associated with Republican George Ryan was over. But the job freeze had another effect: concentrating personnel decisions within Blagojevich's office, which has to sign off on agency hires and promotions.

Now, a federal criminal grand jury probe, at least two investigations by Blagojevich's inspector general and a host of complaints by ex-state workers are raising questions about the governor's vow that qualifications, not politics, determine who gets a state job.

A Tribune examination of job placements in agencies that have been under investigation found a system that has allowed the Democratic governor's allies to secure high-paying, high profile positions despite questionable experience. * * *

Blagojevich's hiring system has resulted in at least three men with no law-enforcement experience--a factory supervisor, a car-parts manager and a farmer--getting jobs as assistant prison wardens. In one case, a former Blagojevich campaign worker with a history of drunken driving arrests even got a job in traffic safety. * * *

Since at least March, federal prosecutors have been conducting an investigation into alleged hiring irregularities involving two top Blagojevich hiring officials and a top personnel officer at the state's child-welfare agency, documents reviewed by the Tribune show.

Prosecutors also have used subpoenas to demand hiring records from the Departments of Children and Family Services, Transportation and Corrections and from the governor's office, dating to March 2002, when Blagojevich won the Democratic primary for governor.

Posted by Marcia Oddi on Sunday, November 13, 2005
Posted to General Law Related

Ind. Law - Chesterton considers ordinance regulating sexually-oriented businesses

"Chesterton Town Council to consider ordinance regulating sexually-oriented businesses" was the headline of this story last week by Kevin Nevers in my hometowm paper, the Chesterton Tribune. Some quotes:

It’s not enough apparently, when it comes to the regulation of sexually oriented businesses, to say I know one when I see it. Such businesses need to be defined.

And the ordinance which the Chesterton Town Council will consider at its next meeting, 7 p.m. Monday, is chockfull of definitions.

Of the document’s 11 pages, only two are actually devoted to the matter of regulation. More than six pages, on the other hand, are devoted to the thorny issue of what exactly would be regulated.

The ordinance would do the following: restrict all sexually-oriented businesses to a special S-1 district. [Etc.] * * *

Sexually-oriented businesses would be prohibited from displaying material related to “specified sexual activities” in windows or to public view; would be prohibited from posting signage containing anything more than the legal name and address of the establishment; and would be permitted only two wall signs with a total of not more than 40 square feet of surface area and a freestanding sign of not more than 40 square feet of surface area; and would be prohibited from illuminating signs by means of exposed neon or exterior lighting or flashing or animated lights.

Violators of the ordinance would be liable to a maximum fine of $2,500 per day.

The question remains, though: what constitutes a “sexually-oriented business”?

The ordinance lists—and then defines—11 of them: “adult arcade”; “adult bookstore,” “adult novelty shop,” or “adult video store”; “adult cabaret”; “adult motel”; “adult motion picture theater”; “adult theater”; “escort”; “escort agency”; “massage parlor”; “nude model studio”; and “sexual encounter establishment.”

But these 11 definitions depend in turn on a whole set of other definitions:

•Of “lewd matter.”

•Of “specified sexual activities.”

•Of “motion picture film.”

•Of “nudity” and “state of nudity.”

•Of “semi-nude” and “semi-nudity.”

•And of “specified anatomical areas.”

Boilerplate these definitions may be, but they are detailed and would appear to be comprehensive, inclusive as they are of acts “normal or perverted, actual or simulated”; of various bodily functions, physiological processes, and anatomical features; and of various “stages of dress and undress.” * * *

“Nothing herein”—of course—“is intended to include or proscribe any matter which, when considered as a whole and in the context in which it is used, possesses serious literary, artistic, political, or scientific value.”

Associate Town Attorney Chuck Parkinson did tell the Chesterton Tribune today that this ordinance would be enforceable against any existing businesses in town which, in one way or another, fall under its definitions. “I think we would give people a reasonable amount of time to come into compliance,” he said, “like a 60- or 90-day period.”

The Plan Commission voted unanimously at its October meeting to endorse the proposed ordinance. At a public hearing which preceded that vote, no one spoke in favor of the ordinance or in opposition to it.

Efforts to regulate adult businesses -- video stores, bookstores -- have resulted in a slew of litigation. For examples, type "adult business" in the search box. Particularly check this entry from 9/27/05

Posted by Marcia Oddi on Sunday, November 13, 2005
Posted to Indiana Law

Saturday, November 12, 2005

Courts - Long back-and-forth over judicial funding in Milwaukee WIS between county executive and county courts

Can another branch of government slash the judiciary's funding or does that violate the separation of powers? What are the constraints on the various units of government?

The ILB has posted a number of entries on these and related issues as they play out in Indiana.

This 10/18/05 editorial in the Milwaukee Journal Sentinel describes a similarly difficult situation in Milwaukee County, Wisconsin. Some quotes:

Milwaukee County Executive Scott Walker's decision to slash staffing for the courts by 25% to keep his pledge for a 2006 tax freeze has touched off a battle with courts officials, one that could become very hot if judges decide to sue the County Board to get the money they need. It shouldn't have to come to that.

It's not too late for county supervisors and courts officials to work out some kind of compromise in which no jobs would be abolished and courts officials would at least get most of the money they are seeking, providing they agree to an efficiency study of the courts and they work hand in hand with the County Board and Walker to lobby for more state funding.

Make no mistake. Walker's cuts do indeed border on draconian, especially for a courts system that is already heavily backlogged because of growing caseloads. But even County Board members sympathetic to the arguments of Chief Judge Kitty Brennan and Clerk of Courts John Barrett are themselves bound by state property tax levy limits and public demand to freeze taxes. This means they probably will not be able to restore all of the funding for next year - $4.4 million - that courts officials want while also addressing the county's other needs.

This story, posted yesterday, 11/11/05, reports that matters remain unresolved. A quote:
On Friday, [Chief Judge] Brennan pledged to seek additional economies to close the budget gap but said it was doubtful she could find enough to avoid seeking a supplemental appropriation later in 2006.

Courts cannot control costs related to "constitutional and statutory requirements, labor contracts, retirement mandates, the need for adequate security in our courts and caseloads which could break the back of any functional system of courts," Brennan wrote in her response to Walker.

A promise now to live within the budget cuts could tie her hands in seeking supplemental funding and eventually "leave the court system in jeopardy," Brennan wrote.

A side-bar to this Journal Sentinel story provides links to more than a dozen earlier stories on the budget debate.

Posted by Marcia Oddi on Saturday, November 12, 2005
Posted to Indiana Courts

Environment - Ethanol; Pines transfer station

Updating two of the items from this entry yesterday:

Ethanol. The Fort Wayne Journal Gazette has two editorials today on (to quote from their story yesterday) "Wells County Council members are still waiting for key information before they decide whether to guarantee more than $50 million in bonds for a proposed ethanol plant." From the first editorial:

A proposed ethanol plant in Wells County could be a solid bet. But it’s nonetheless a bet, and the public does not yet have enough information for county officials to take the risk. * * *

Indiana Bio-Energy LLC wants to build a $134 million ethanol plant on 400 acres on the western edge of Bluffton. And the company wants Wells County taxpayers to help it secure at least $50 million in loans to pay for the plant. Indiana Bio-Energy plans to pay for the construction by soliciting $34 million from private investors, seeking a bank loan for $50 million and asking the county to guarantee another $50 million in bonds. * * *

Residents and some County Council members are concerned because if the county backs the plan it would severely limit the county’s ability to make any other investments. “For a county that is the size of Wells, it could be an awfully big pill for the county to swallow if, God forbid, it failed,” said Council President Pete Cole. The county would be responsible for paying back about up to $4.5 million dollars a year. Cole says that’s a big chunk when you consider the county only gets $5 million in property tax revenue each year.

Having the county’s credit tied up with the ethanol plant could also hurt the county’s ability to get good interest rates when officials seek loans for county business, such as needed improvements to the county jail. * * *

The ethanol plant could be a good investment for Wells County. But the decision to back such a huge loan should only be granted if the company can give the community adequate assurances. The council should only approve the loan after complete disclosure and plenty of public input.

The second editorial talks about conflicts of interest:
Two key Wells County government officials’ financial investment in the company that proposes to build an ethanol plant using county-backed financing is untenable. They should choose whether they want to be investors or officials, but they shouldn’t do both. * * *

As public servants, these county officials need to hold themselves to the highest standard of ethics. While there might not be anything legally wrong with their involvement in the project, it casts doubt on the project. Given that the company is asking that Wells County government back a $50 million loan for the plant, Plummer and Prible should either dispense of their investment or step down from office.

Pines transfer station. The story in the Gary Post-Tribune begins:
Add Beverly Shores to the list of opponents to a waste transfer station that state officials approved on Wednesday.

The town council will meet at 1:30 p.m. today at the town’s administration building to address the Indiana Department of Environmental Management’s issuance of a construction permit for the Great Lakes Transfer Station.

The transfer station would be at 5535 N. County Line Road on the Porter-LaPorte county border and is expected to handle several hundred tons of trash a day.

“It’s directly over Kintzele Ditch and we’re a mile-and-a half from it,” said Association of Beverly Shores Residents environmental action committee member Dan Dresner.

Dresner said the association called the meeting after its residents discovered how close the transfer station would be to their homes. “Until a few weeks ago we didn’t put two-and-two together,” he said.

Dresner said residents in Beverly Shores are concerned about possible contamination from the municipal trash that will be brought into the station. “We just went on city water, but some are still on wells,” he said. Dresner said the east-west current runs year-round along the Lake Michigan shoreline.

Since Kintzele Ditch runs into Lake Michigan, residents are concerned possible contamination could affect Beverly Shores’ three miles of beaches, which are also part of the Indiana Dunes National Lakeshore, as well as nearby wetlands.

[Update 11/13/05] Here is a similar story from the Munster (NW Indiana) Times, indicating that the Town of Beverly Shores will join the suit.

Posted by Marcia Oddi on Saturday, November 12, 2005
Posted to Environment | Indiana economic development

Enviroment - Costly asbestos removal slowed work at Evansville State Hospital

The Evansville Courier& Press reports today, in a story by Libby Keeling, that:

Removing asbestos from 16 old buildings being demolished on the the Evansville State Hospital grounds cost the state nearly twice as much as anticipated. * * *

According to the director of institutional finance for the Indiana Family and Social Services Administration, removal of asbestos and other hazardous materials from the old buildings cost $5,669,488.

"The unfortunate thing is that when they finished building these buildings, they didn't leave us a road map as to where the asbestos was. That just wasn't a requirement, so when we start in on these buildings, we have to start at one end and we just work through it," director Kent Farr said when the Evansville State Hospital Advisory Committee met earlier this week.

In addition to finding more asbestos than anticipated, the contractor also found it in areas where it is more difficult to remove, such as in the walls and ceilings, and they found asbestos paper, which was used as a vapor barrier, said Mark Dearing, physical plant director for the state hospital. * * *

With the work essentially finished and approved by the Indiana Department of Environmental Management and the Environmental Protection Agency, the project now can proceed.

Posted by Marcia Oddi on Saturday, November 12, 2005
Posted to Environment | Indiana Government

Law - Contesting winning bids for state contracts in Kentucky

The Louisville Courier Journal has an interesting story this morning by Mark R. Chellgren titled "Court adjusts standard for appealing losing bids." Some quotes:

FRANKFORT, Ky. -- Losing bidders for state contracts should be allowed to challenge the decisions in court under some circumstances, a divided Kentucky Court of Appeals says.

The majority of the three-judge panel set a standard of whether the award was "arbitrary and capricious," rather than a result of "egregious and offensive political patronage." * * *

In April 2003, the state advertised for a contract to buy about 300 golf carts for use at state park courses. About a month later, the contract was awarded to E-Z-Go, a cart manufacturer.

Two losing bidders contested the award with the Finance Cabinet on the grounds that the winner did not meet bid specifications for handicap-accessible carts and the cabinet had improperly considered maintenance costs for only a year, instead of the projected life of the carts. * * *

The trial court granted the state's motion for summary judgment, ruling that losing bidders have few grounds to contest bid decisions and the cart companies did not meet them.

Appeals Court Judge Michael Henry said state law generally favors the decisions of the contracting agency, but that such decisions are still subject to review if the cabinet's findings don't support its decision.

"This standard does not differ in any significant way from the general rule that the decisions of administrative agencies are reviewed by courts with the question of arbitrariness in mind," Henry said.

A look at the Indiana statutes shows that state purchasing is governed by IC 4-13-1.3, and IC 5-22, both passed in 1997.

IC 5-22-19 provides that determinations under IC 5-22 are final and conclusive and subject to judicial review under IC 5-22-19-2.

Posted by Marcia Oddi on Saturday, November 12, 2005
Posted to General Law Related | Indiana Law

Ind. Decisions - Deceased officer's sons entitled to benefits

The Indianapolis Star had a brief item yesterday reporting on the Court of Appeals' workers' compensation ruling yesterday in Indiana State Police v. James Wiessing (Deceased):

The Indiana Court of Appeals on Thursday upheld a decision giving compensation to the sons of an Indiana State Police trooper who committed suicide years after shooting and killing a suspect who grabbed for his gun.

The court rejected the State Police's argument that the survivors of Trooper James Wiessing were not entitled to benefits under worker's compensation because Wiessing's fatal wound was self-inflicted.

The court noted that Wiessing was diagnosed as suffering post-traumatic stress disorder after shooting the suspect in April 1994. The court accepted the finding of the Worker's Compensation Board that his suicide in 2000 stemmed from his condition, which had resulted from service in the line of duty.

Posted by Marcia Oddi on Saturday, November 12, 2005
Posted to Ind. App.Ct. Decisions

Friday, November 11, 2005

Ind. Decisions - Punitive damages from dead disallowed

"Punitive damages from dead disallowed: Justices say estate can't be held liable" is the headline to a brief AP story in the Louisville Courier Journal. Some quotes:

INDIANAPOLIS -- Indiana law does not allow people to recover punitive damages from a deceased person's estate, the state Supreme Court has ruled.

The ruling, issued Wednesday, upheld a Morgan Circuit Court decision that denied punitive damages sought by two children who were injured in an accident as passengers in a car driven by their father while he was intoxicated.

The father, Jackie Crabtree Jr., died about year later of unrelated causes. The children, through their mother, then sued Crabtree's estate for compensatory and punitive damages. * * *

The plaintiffs appealed the trial court's dismissal of their claim for punitive damages, and the case ultimately reached the state's high court.

In a 3-2 decision, the ruling said most jurisdictions reason that punitive damages are intended to punish the wrongdoer and that goal cannot be accomplished if that person is dead. The Supreme Court majority found that view persuasive.

The decision, issued 11/9/05, is Alicia and Jacelyn Crabtree, b/n/f Kimberly Kemp v. Estate of Jackie L. Crabtree, Jr. Acccess the ILB entry here.

Posted by Marcia Oddi on Friday, November 11, 2005
Posted to Ind. Sup.Ct. Decisions

Law - Kentucky Governor's pardons of accused in hiring investigation trouble judge

Two stories today on the long-running Kentucky merit -hiring investigation. The Evansville Courier& Press has an AP story that begins:

FRANKFORT, Ky. - Franklin County Circuit Judge William Graham appeared troubled Thursday by the prospect of a governor using his power to pardon to close off a grand jury's own authority to examine evidence and indict wrongdoing.

"You can imagine every kind of heinous circumstance," Graham said.

Yet Graham is confronted with just such a circumstance - a request from Gov. Ernie Fletcher to halt the work of the current special grand jury to return an indictment if it finds probable cause to believe a crime was committed from the beginning of his administration to Aug. 29.

Fletcher's lawyer, Sheryl Snyder, said a governor's pardon makes any potential crime disappear. And if there is no crime, there can be no indictment, Snyder argued.

A story in the Louisville Courier Journal, headlined "Judge indicates pardons will stand: Grand jury's fate still isn't certain," reports:
FRANKFORT, Ky. -- The pardons issued by Gov. Ernie Fletcher in the state hiring investigation likely mean that those accused will never be prosecuted, Franklin Circuit Judge William Graham said yesterday.

"I can easily be persuaded … the court has a duty to probably dismiss that indictment forthwith," Graham said during a hearing on the Fletcher administration's motion to block the grand jury from issuing any more indictments.

But the judge left unsettled the question of whether the pardons mean the grand jury "goes away."

"Does that give the governor the right to challenge the grand jury's constitutional privilege and right and power to go about its business?" he asked. Graham said he would rule before the grand jury's next scheduled meeting on Thursday.

Posted by Marcia Oddi on Friday, November 11, 2005
Posted to General Law Related

Environment - Ethanol; Polluted land returned; Contamination exceeds expectations; Pines transfer station; Great Lakes carp; Porter County wetlands

Ethanol. The Fort Wayne Journal Gazette reports today:

Wells County Council members are still waiting for key information before they decide whether to guarantee more than $50 million in bonds for a proposed ethanol plant, but Council President Pete Cole has expressed some concerns about the plan.
Polluted Land Returned. The headline to the story in the Munster (NW Indiana) Times is "Habitat for Humanity returns polluted land: Lead levels make living there unsafe." Some quotes:
The large lot west of the iron nine-span bridge on Indianapolis Boulevard and south of the Gibson railroad yard was just too polluted. * * * "The ground would have to be stripped 2 feet or more." * * * [T]he Willis Avenue property was tainted with lead -- a common problem throughout the Calumet Region, particularly near railroad tracks. It was too much lead for anyone to live there safely, according to an environmental assessment done at the site. "We're going to take responsibility for it," said Redevelopment Commission President McKinley "Mac" Nutall, in accepting the property back from Habitat for Humanity.
Contamination Exceeds Expectations. "More soil testing will raise Scribner costs: Commission OKs $8,800 for work," is the headline to a story in the Louisville Courier Journal. Some quotes:
Contamination at the Scribner Place site in New Albany is more extensive than expected, and it will cost more to test the soil there. The New Albany Redevelopment Commission approved an $8,800 increase in the soil-testing contract at a meeting Tuesday. * * *

"That's a big miss," said Jack Messer, a member of the Redevelopment Commission and the City Council, noting that the $17,600 the company is requesting is about 60 percent above the initial $28,800 contract. * * *

Nearly 14,000 tons of dirt contaminated with lead, arsenic and petroleum products has been removed from the site by Focus Contracting Inc. in the last three weeks and taken to the Outer Loop Landfill in Louisville. The excavation is ahead of schedule and within its $515,000 budget, according to John Rosenbarger, director of the redevelopment commission. But more contamination -- primarily lead -- has been found in samples from the western part of the site than had been expected. * * *

If the state's requirements can't be met with the additional excavation and sampling, [Curt Jones, senior project manager with Shield Environmental Inc.] said, it may be necessary to use statistical approaches to convince the agency that the site can be used safely. State environmental regulators are supposed to visit the Scribner site next week, Jones said.

The Pines Transfer Station. Two more stories on the IDEM approval of the "Great Lakes Transfer Station, proposed on about five acres north of U.S. 20 and about one-half mile south of the Indiana Dunes National Lakeshore’s Mount Baldy." The quote is from a story in the Chesterton Tribune. More:
The transfer station would serve as a collection site for trash before the garbage is loaded onto larger trucks for transport to a landfill. Residents in the area who have opposed the station have cited the dangers of increased truck traffic, the existence of Ice Age-era wetlands in the vicinity, the proximity of the Indiana Dunes National Lakeshore, and the potential for prehistoric artifacts on site.

For Pine Township residents in particular, the transfer station represents a step backward in the progress that they have made recovering from groundwater pollution attributed to the Brown Landfill.

For the Porter County Commissioners, one of the main issues has been that County Line Road is not an all-weather road and cannot withstand heavy trash-hauling trucks due to the poor soils. The commissioners have refused to lift the current weight limit on the road, which some have said would be needed in order for garbage trucks to get to the transfer station.

The Munster (NW Indiana) Times has a story headlined "Group to plan appeal of waste transfer station."

Great Lakes Carp. The Chicago Tribune has a story that reports:

Two barriers intended to keep gluttonous Asian carp out of the Great Lakes could be shut down because nobody wants to pay the electric bill.

Members of a House-Senate budget committee decided this week not to pay the roughly $1 million needed to keep the electrical barriers operating in the Chicago Sanitary and Ship Canal, the last line of defense between Lake Michigan and the carp-infested Illinois River. * * *

Only 50 miles of water and the pair of barriers stand between the lakes and the advancing carp, which took less than a decade to eat their way up the Mississippi and Illinois Rivers.

If Congress doesn't set aside money for the barriers in another bill, the Army Corps of Engineers is expected to run out of money to keep them operating by May. It then would be up to the State of Illinois to pick up the tab, something state officials say they aren't able to do, either.

"This should be a federal responsibility," said Mike Conlin, director of resource conservation at the Illinois Department of Natural Resources. "These barriers are in place to protect all of the Great Lakes, not just the Illinois portion of Lake Michigan."

Asian carp worry biologists who study the Great Lakes because the fish devour up to 40 percent of their body weight each day, mostly by straining out tiny organisms that provide the base of the food chain for popular sport fish such as bass and walleye.

Porter County Wetlands. Vicki Urbanik of the Chesterton Tribune reports today that:
In a 5-3 vote Wednesday, the Porter County Plan Commission rejected plans for The Preserve, a proposed 99-lot subdivision surrounded by wetlands at C.R. 1050N and 50W in Liberty Township.

The decision clearly was a difficult one for some of the plan commission members, who, after holding a one-hour long public hearing, questioned and debated the proposal for nearly two more hours before taking a vote.

The case was reminiscent of the debate that occurred earlier this year over a subdivision planned farther east on 1050N in Jackson Township. One the one hand, the development met and even exceeded the county’s open space requirements and came with the likelihood of sanitary sewer and water, as the county planners favor. But other characteristics of the property ended up outweighing those positives.

The Preserve developers pledged to protect 51 acres of existing wetlands on site and an additional 10 acres of open space, while leaving the remaining 29 acres for the housing.

They also called for educating homeowners on the environmental sensitivity of the land, partnering with a non-profit group to manage the wetlands, and employing “best management practices,” such as the use of vegetative filter strips to slow water and rain barrels to collect water.

This is a long and detailed article that deserves full reading.

Posted by Marcia Oddi on Friday, November 11, 2005
Posted to Environment | Indiana economic development

Ind. Gov't. - Daniels hires new general counsel

A brief item just posted on the Indianapolis Star website reports:

Gov. Mitch Daniels has appointed a federal prosecutor to become his new top lawyer.

Mark Massa will become his general counsel on Jan. 1, replacing Steve Schultz, who will return to Columbus-based Irwin Financial Corp. as general counsel. * * *

Massa, 44, has been a prosecutor for the U.S. Attorney's Office for Southern Indiana for three years, assigned to the counter-terrorism and white collar fraud units. Previously, he was an aide and speechwriter for the late Gov. Robert Orr, law clerk for Indiana Supreme Court Chief Justice Randall Shepard, Marion County deputy prosecutor under Stephen Goldsmith and Jeffrey Modisett, and for 8 years, he was chief counsel to Marion County Prosecutor Scott Newman. Massa is a graduate of Indiana University and the IU School of Law-Indianapolis.

Posted by Marcia Oddi on Friday, November 11, 2005
Posted to Indiana Government

Ind. Decisions - Question of making town's private settlement public argued before Court of Appeals

The Court of Appeals heard oral arguments yesterday in Knightstown Banner, LLC vs. Town of Knightstown, et al. Unfortunately, the Court of Appeal's calendar generally gives no description of the subject of the upcoming arguments, and doubly unfortunate, very few Court of Appeals oral arguments are available as part of the Courts' "Oral Arguments Online" -- in fact, the last one was in February of 2005.

But Bill McCleery of the Indianapolis Star was there yesterday, and today's paper contains this story, headlined "Newsmen vs. Knightstown: Court hears dispute over making terms of a settlement public." Here is the side-bar timeline:

Timeline of the Knightstown dispute

• GiGi Steinwachs was fired in May 2002 from her job as a police dispatcher. Steinwachs later sued the town, alleging her civil rights were violated.

• In 2003, the Knightstown Town Council approved a private settlement of Steinwachs' lawsuit. The town paid $5,000 out of its coffers, and the town's insurance carrier, Governmental Interinsurance Exchange, paid the rest.

• The Knightstown Banner, a weekly newspaper, sued the town and the insurance company in 2004 to gain access to the details of the settlement. A Henry County court ruled against the Banner, which appealed the decision.

• The Indiana Court of Appeals agreed to consider the Banner's case and heard oral arguments Thursday.

From the story:
Lawyer Joel Harvey, representing the town, argued that open access laws would not pertain to the internal records of a road-paving company that performed work for a city or town. "I don't see how (the insurance company) is different," he said.

Judge Patricia A. Riley pressed Steven Pearson, a lawyer for the insurance carrier, to consider whether taxpayers might consider it their right to know the specifics of a legal settlement made on behalf of the town.

"We contend respectfully, your honor, that they are not entitled to that," he replied.

A ruling might be months away, but the newspaper's lawyer, Kurt Webber, said he was encouraged simply because the court took the Banner's case seriously enough to request a hearing.

Reading this story immediately brought to mind the quote from this ILB entry from Wednesday (third item) that the City of South Bend has settled its lawsuit against Allied Products Corp., but city officials and the attorney for the company wouldn't disclose the amount awarded in the settlement - the company's attorney said a confidentiality agreement with Allied bars them from discussing it.

See also this ILB entry (3rd item), also from this Wednesday, on the unavailability of a settlement "struck between Greenfield-based IMI and the Indiana attorney general's office" whereby "[a]n Indianapolis-area concrete firm that pleaded guilty to price-fixing will be given $30 million in state contracts to pave roads from Fort Wayne nearly to Evansville."

Posted by Marcia Oddi on Friday, November 11, 2005
Posted to Ind. App.Ct. Decisions | Indiana Government

Courts - Still more on retention vote for Pennsylvania justices becomes a battleground

The Legal Intelligencer has a rehash of Tuesday's Pennsylvania judicial retention vote, covered in the ILB 11/5/05 (before the election), 11/9/05, and 11/10/05.

Posted by Marcia Oddi on Friday, November 11, 2005
Posted to Indiana Courts

Thursday, November 10, 2005

Environment - 8,000-head confined hog operation challenged in court

An ILB report on Oct. 16th included this quote from a story in the Seymour Tribune by Danya Cain:

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.

Some quotes from the start of a lengthy story today by the same reporter in the same paper:
BROWNSTOWN — The legal battle against a Reddington confined hog farm has begun.

Petitions to reverse a decision by the county’s board of zoning appeals approving a confined feeding operation have been filed this week in Jackson Circuit Court.

Jennings Water Inc. filed a petition to reverse the approval of an 8,000-head hog operation approved by the Jackson County Board of Zoning Appeals in October.

The petition for a writ of certiorari, filed Tuesday on behalf of the company by Columbus attorney Pete King, calls for Jackson Circuit Court to reverse the BZA’s approval of Talara Lykins’ request for a special exception. It also accuses the BZA of violating Indiana Open Door Law during the Oct. 11 meeting at the Vallonia gymnasium, saying members held an “illegal executive session.”

Robert Sexton, a member of Families Against (CAFO) in Reddington, a collection of residents opposed to Lykins’ operation, filed a petition against the BZA on Wednesday afternoon, according to the Jackson County clerk’s office.

That petition was still being processed in the clerk’s office this morning and was not available for review in the Jackson Circuit Court office.

Posted by Marcia Oddi on Thursday, November 10, 2005
Posted to Environment

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending November 11, 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 November 11, 2005. There are 27 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.
________________
*Of interest may be Jason W. Holcomb v. Walter's Dimmick Petroleum, Inc. on page 2, an opinion by Judge Robb that reverses and remands, a decision in which Judge Bailey concurs. Judge Friendlander, however, dissents with opinion. With all that, the ruling was classified as "NFP" by the judges under Rule 65(A), which provides the criteria for publication. Under those criteria, this decision does not: (1) establish, modify, or clarify a rule of law; (2) criticize an existing law; or (3) involve a legal or factual issue of unique interest or substantial public importance.

Posted by Marcia Oddi on Thursday, November 10, 2005
Posted to NFP Lists

Law - Definition of "pro bono" at issue in Milwaukee Clean Water Act case

Milwaukee Journal Sentinel columnists Cary Spivak & Dan Bice had an interesting piece this week about the definition of "pro bono" and the Chicago-based firm of Jenner & Block. A few quotes, but it really should be read in full:

On its Web site, Jenner boasts that it is a national leader in pro bono work, noting that "the editors of The American Lawyer in 2003 referred to Jenner & Block as a pro bono powerhouse." Indeed, it's virtually impossible to find a news story about pro bono work that doesn't heap praise on Jenner.

Up here in Milwaukee, Jenner is running up the hours as the lead attorney in the federal suit that charges the Milwaukee Metropolitan Sewerage District with illegal dumping into Lake Michigan. Jenner is proud of this litigation, which it took on behalf of the Friends of Milwaukee's Rivers and the Alliance for the Great Lakes.

So proud, in fact, that it has touted its pro bono work in repeated press releases, including one in June that proclaimed its lawyers as "heroes" for their work on the case.

And leave it to those heroes to come up with a way to collect a few hundred grand for their efforts.

Posted by Marcia Oddi on Thursday, November 10, 2005
Posted to General Law Related

Ind. Decisions - Transfer list for week ending November 11, 2005

Here is the Indiana Supreme Court's transfer list for the week ending November 11, 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 Thursday, November 10, 2005
Posted to Indiana Transfer Lists

Courts - Still more on retention vote for Pennsylvania justices becomes a battleground

How Appealing (located in Philadelphia) today has more reports from the state's newspapers on the ousting of one of Pensylvania's Supreme Court justices in Tuesday's retention election. Unfortunately, most of the papers cited require registration before you can read their stories.

Posted by Marcia Oddi on Thursday, November 10, 2005
Posted to Indiana Courts

Ind. Decisions - Court of Appeals posts seven today

The Court of Appeals handed down seven opinions today, dealing with school trespass, custody and child support, sentencing, criminal contempt, assumption of risk, another sentencing, and workers' compensation.

Posted by Marcia Oddi on Thursday, November 10, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Medical lawsuit award at issue

"Medical lawsuit award at issue" is the headline to a story today by Bryan Corbin in the Evansville Courier& Press. Some quotes:

Two months after a jury awarded one of the largest civil judgments in a medical malpractice case in Vanderburgh County, the plaintiffs still haven't received a dime of the $6.2 million judgment.

The reason: Indiana law limits malpractice awards in such cases to $750,000. A judge must decide whether to order the $6.2 million as a judgment against the doctor who was held liable, or follow the state's cap and reduce damages. No matter how he rules, an appeal is likely; and the plaintiff's attorney said the case could drag out another two or three years. * * *

Jurors awarded $3 million in damages for Amelia's physical injuries while she was alive, $2.5 million for her parents' emotional anguish and $700,000 for wrongful death.

Malpractice awards usually are paid from the Indiana Patient Compensation Fund. Health-care providers voluntarily pay premiums into the fund and then are responsible for only a portion of any jury award against them, with the fund covering the rest.

The law in effect at the time limited damages awards to $750,000 per injury.

On Oct. 11, the Indiana Department of Insurance, which manages the patient compensation fund, filed an objection in the Baumgart lawsuit. The $6.2 million judgment would exceed the cap, insurance commissioner James Atterholt contended.

Moreover, Indiana law does not allow a jury to award damages both for personal injuries and for wrongful death, he argued. And, Atterholt contended the parents were not legally entitled to a separate judgment.

Wednesday in Circuit Court, Judge Carl Heldt met with attorneys for the Baumgarts, DeFries and the state. Heldt gave all sides 10 days to file written briefs before he decides how to proceed.

Plaintiff's attorney Wayne Turpin is asking the judge to find the $750,000 cap unconstitutional because, he said, it creates two classes of individuals: "One group who gets fully compensated and another group who is terribly undercompensated. That's not applying the law in a fair equal and just manner," Turpin said.

He also alleges multiple acts of negligence occurred that could expand the damages.

Posted by Marcia Oddi on Thursday, November 10, 2005
Posted to Ind. Trial Ct. Decisions

Environment - Dunes Lakeshore Transfer Station; Deer Sterilization

Transfer Station. Disputed transfer station granted IDEM permit, reports both the Munster (NW Indiana) Times and the Gary Post-Tribune today. The Times reports:

THE PINES | State regulators granted a permit on Wednesday to Great Lakes Transfer LLC, for a solid waste transfer facility about a mile from the Indiana Dunes National Lakeshore near The Pines, a move that a citizens' group opposed to the station said they will appeal.

Great Lakes President Sean Blieden said he will begin construction right away on the 5-acre facility off County Line Road in LaPorte County.

Blieden has faced strong opposition from government officials in LaPorte and Porter counties, Michigan City, The Pines and Burns Harbor, as well as citizens groups created to fight the transfer station, People In Need of Environmental Safety and Residents Against Trash In Our Neighborhood Alliance.

The citizens groups have said The Pines, which already has contaminated water from industrial waste, has endured enough environmental damage and will suffer again when garbage trucks roll through town. Officials have raised concerns about large trash transport trucks that will likely exceed the 10-ton weight limit on County Line Road and the effect on the nearby National Lakeshore.

Each day, the transfer station will take about 250 tons of household waste, construction debris and recyclables, which are then shipped out to landfills within 24 hours.

The Tribune story reports:
“We expected this ... ” said opponent Larry Silvestri of Residents Against Trash in Our Neighborhood Alliance. “We’re going to appeal it,” he said. * * *

The station, which will straddle Kintzele ditch, less than a half mile from the Indiana Dunes National Lakeshore has the potential for overflowing contaminated water into surrounding wetlands and onto Central Avenue Beach near Mount Baldy, Silvestri said. * * *

Indiana Dunes National Lakeshore Superintendent Dale Engquist said the park had listed its concerns and questions in a letter to IDEM, which were never answered.

Deer Sterilization. "Sterilization caps expansion of suburb's deer population" is the headline to a story today in the Chicago Tribune. Some quotes:
A four-year study on controlling Highland Park's deer population by sterilizing instead of killing the animals has proved successful and could be a model for urban and suburban areas, Wisconsin researchers say.

The scientists, working with city police, caught and sterilized 67 does from 2002 to 2004. They also tracked the movement of the does and determined that they stay close to home, which is critical because if the spayed deer were leaving, fertile ones would simply take their place.

"Our findings are exciting. This is really the first time we've been able to [determine] under what circumstances this can work," said Nancy Mathews, a wildlife ecologist at the University of Wisconsin-Madison. * * *

Since its two main deer populations are separated by U.S. Highway 41, researchers were able to designate a treatment group and a control group, critical to a scientific experiment. All of the sterilized deer were from the east side herd; the west siders were left to reproduce naturally.

In the control group, the observed population rose from 88 to 103 from 2002 to 2005; in the treatment group it rose from 50 to 57, Mathews said. More important, the population in the treatment group appeared to drop significantly from 2004 to 2005, which is in line with models that suggest it takes 3 1/2 years for sterilization to have an effect on population growth, she said.

Posted by Marcia Oddi on Thursday, November 10, 2005
Posted to Environment

Ind. Decisions - City orders billboards down by Dec. 10

"Court decides billboards must go: 10 interstate signs in Indy ruled illegal" is the headline to a story today in the Indianapolis Star Business section, by JK Wall. References are to the Indiana Supreme Court's ruling Nov. 3rd in the case of Metropolitan Development Commission of Marion Co., et al v. Pinnacle Media. See ILB entry here. Some quotes from the story:

Ten signs that Indianapolis Mayor Bart Peterson finds unsightly and against city rules must be torn down after the Indiana Supreme Court reversed two lower courts' decisions.

The five-year court battle came down to the issue of timing. The state Supreme Court ruled that Pinnacle Media should not have been allowed to erect the billboards along inner-city interstates because a city zoning rule was passed in time to stop it.

City officials will send a letter to Pinnacle representatives this week, asking them to take down the 10 billboards by Dec. 1. If Pinnacle does not comply, the city will pursue legal action, said Maury Plambeck, director of the Department of Metropolitan Development. * * *

The five Supreme Court justices were unanimous in their decision, handed down Nov. 3.
"The question (is) whether, at the time of the change in the zoning ordinance, construction had proceeded on the project to the point that the developer had a vested interest," Justice Frank Sullivan Jr. wrote in the opinion. "In this case, no construction of any kind had proceeded on the 10 billboards" when the city changed its zoning rules.

Posted by Marcia Oddi on Thursday, November 10, 2005
Posted to Ind. Sup.Ct. Decisions | Indiana Government

Law - Forcing the Supreme Court by statute to allow cameras at oral arguments

Tony Mauro of Legal Times has a story today titled "Bill Allowing Cameras in Supreme Court Gains Momentum." Some quotes:

"It's a question of when, in my judgment, not if," said Senate Judiciary Committee Chairman Arlen Specter, R-Pa., at a hearing on a bill that would mandate broadcast access unless a majority of justices voted against it in an individual case. * * *

After decades of futile efforts to persuade the Court to end its steadfast opposition to cameras on its own, the legislative approach -- forcing the issue by statute -- seems to be gaining momentum.

One factor cited by several witnesses is the renewed public interest in the Supreme Court, beginning with Bush v. Gore in 2000 and continuing with this year's confirmation hearings for Chief Justice John Roberts Jr. * * *

Specter also squared the proposal with his long-standing annoyance with the Supreme Court for overturning federal statutes in language that insults Congress. "Americans would be flabbergasted," Specter said, to see on television how the Supreme Court disrespects Congress. He predicted the coverage would put some "legitimate pressure" on the Court. * * *

C-SPAN CEO Brian Lamb pledged that if the bill, S. 1768, passes, his channels would provide gavel-to-gavel coverage of all Supreme Court proceedings. Lamb said he was reminded of the need for more public education about the Court when a student recently asked him "where they put the jury in the Supreme Court."

Adding a dramatic touch to the hearing, political scientist Peter Irons played the audiotape of part of the late Thurgood Marshall's 1958 argument in the civil rights case Cooper v. Aaron. The Court has recorded the audio of its arguments for the past 50 years, he said, "and I can't see any reason not to add the pictures to the audio."

Irons' appearance before Congress showed how far the debate has evolved in recent years. A dozen years ago, Rehnquist threatened Irons, a professor at the University of California-San Diego, with legal action for selling high court argument audiotapes in an educational package that has been used in hundreds of schools and colleges. On Wednesday, Irons' efforts were praised.

Also on the agenda Wednesday was another bill, S. 829, which would give federal appellate and trial judges the option of opening their courtrooms to cameras. The 2nd and 9th U.S. Circuit Courts of Appeals already allow broadcast coverage if the media request access and the panel hearing the case approves.

Here is a link to the Senate Judiciary Committee's page on the "Cameras in the Courtroom" hearing, including links to the testmony of the various witnesses.

Posted by Marcia Oddi on Thursday, November 10, 2005
Posted to General Law Related

Ind. Decisions - Court hears arguments on sex offender policy

Yesterday the Indiana Supreme Court heard oral arguments in the case of Jane Doe v. J. David Donahue. Here is the description from the Court website:

Inmates who have been convicted of sexual offenses with minors and are therefore subject to a Department of Correction directive restricting their visitation with minors filed this class action against the D.O.C.’s Commissioner and argued the directive violates their visitation rights under a state statute and federal constitutional. The Marion Superior Court granted the Commissioner summary judgment. The Court of Appeals affirmed. Doe v. Donahue, 829 N.E.2d 99 (Ind. Ct. App. 2005), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for Doe:Kenneth Falk,Indianapolis, IN. Attorneys for Donahue: Attorney General Steve Carter,Deputy Attorney General, Francis Barrow,Indianapolis, IN.
Mike Smith of the AP has a story today on the arguments, headlined "Court hears arguments on sex offender policy: Rules to protect kids visiting prison." Some quotes:
A state prison policy violates Indiana law and the U.S. Constitution by prohibiting virtually all visitation between minors and child sex offenders, the Indiana Civil Liberties Union told the state Supreme Court yesterday.

ICLU attorney Ken Falk, representing inmates in a class-action lawsuit, said not every imprisoned child sex offender poses a risk to minors. He said some visits should be allowed if the inmate and child are separated by a physical barrier.

The state argued that the policy was designed to protect children. In a legal brief it said there had been past incidents when children were sexually abused in visiting areas while guards were presen. * * *

Under a policy imposed by the Department of Correction in 2001, inmates convicted of sex offenses against minors were not allowed visits from children. The agency said the offenders had a high risk of committing sex crimes again and could traumatize children in psychological as well as physical ways.

The policy was revised in 2002 to allow certain child sex offenders who had been denied visitation with children to request a review for reconsideration. If granted permission, the child visitor had to be an immediate family member and not a victim of the offender.

But Falk said the standards for getting permission were extremely difficult to meet, and between September 2002 and June 2003 only nine offenders were allowed visitation with a minor under the policy. * * *

Deputy Attorney General Frances Barrow said that even if a child sex offender and minor were separated by a physical barrier, "you still have that psychological effect of face-to-face contact." She said there were more than 2,000 child sex offenders in state prisons and suggested that the department would have to hire more guards to supervise an increase in the number of visits if the policy is struck down.

Listen to yesterday's oral arguments in Jane Doe v. J. David Donahue here, via the Court's "Oral Arguments Online." The vacated Court of Appeals decision is available here.

Posted by Marcia Oddi on Thursday, November 10, 2005
Posted to Ind. Sup.Ct. Decisions

Wednesday, November 09, 2005

Courts - More on retention vote for Pennsylvania justices becomes a battleground

Recall this ILB entry from Saturday labeled "Retention vote for Pennsylvania justices becomes a battleground." It reported that many were calling for "no retention" votes for State Supreme Court Justices Russell Nigro and Sandra Newman, because of what was deemed a legislative pay-grab bill, passed in the dead of night.

So what happened? According to this entry on Howard Bashman's How Appealing this morning, one of the justices failed to be retained. Here are some quotes from the Pittsburgh Post-Gazette:

HARRISBURG -- State Supreme Court Justice Russell M. Nigro lost his retention bid last night, ousted by voters outraged over hefty pay raises given to legislators and judges.

Results in Justice Nigro's yes-or-no election were too close to call through most of the night, but as more than 90 percent of the votes were tallied, the numbers increasingly showed he was behind by 2 percentage points.

Justice Nigro, a Philadelphia Democrat, became the first Supreme Court justice to lose a retention election in more than 200 years of Pennsylvania history. * * *

Only about 20 to 25 percent of the voters in retention elections historically cast no votes, so the negative reaction to both justices was far above normal, said G. Terry Madonna, a pollster and professor at Franklin & Marshall College in Lancaster. * * *

Both Justices Nigro and Newman, along with more than 1,000 other state judges and district magistrates, did benefit from the raises. Supreme Court justices had their annual salaries go to $171,800 from the previous $150,369 because of the Legislature's action. * * *

Newly formed citizens groups, such as Pa. Clean Sweep, Democracy Rising and Rock the Capitol, quickly became upset over all the raises and urged voters to send a strong message to all state officials that "business as usual" in state government would no longer be tolerated. * * *

Timothy Potts, of Cumberland County, leader of Democracy Rising and Eric Epstein, of Dauphin County, leader of Rock the Capitol, contended that all Supreme Court justices are to blame, at least partially, for the closed-door way the Legislature operates.

They contended that many important laws passed by the Legislature, such as the July 2004 slot machine law and the July 2005 pay raise law, are enacted in the dead of night with little or no debate, but the high court typically upholds the Legislature.

Justice Nigro denied claims by the critics that Supreme Court justices routinely "rubber stamps" questionable actions by the Legislature.

Mr. Potts said the pay raise bill should have been given public consideration on three different days, but instead was amended into an unrelated bill on low-income heating assistance and passed at 2 a.m. on July 7 without debate. Mr. Potts and Mr. Diamond said state judges should be paying attention to such actions, but instead haven't done anything to rein in the Legislature. [my emphasis - "log-rolling"!]

The retention election for Justices Nigro and Newman has been extensively covered in newspapers and on talk radio -- a situation almost unheard of in the past, when Supreme Court retention elections got almost no attention.

This morning's story in the Harrisburg Patriot-News reports:
State Supreme Court Justice Russell Nigro didn't vote for the pay raises, but he paid for them anyway.

Voters yesterday ousted Nigro by a 51-49 ratio, making him the first justice on the high court to ever lose a retention election.

Justice Sandra Schultz Newman won a new term on the state's highest court, with 54 percent of voters saying she should stay.

Judicial-retention elections traditionally lack drama. But Newman and Nigro were the first statewide candidates to face voters since July, when Gov. Ed Rendell and lawmakers approved the raises for themselves, judges and top state officials.

With no lawmakers seeking re-election yesterday, many said they saw the two justices as fitting targets. Government-reform advocates implored voters to make a statement. By any measure, they did. * * *

Nigro became the state's first appellate judge to lose a retention vote since the yes-no vote was instituted in 1969. * * *

"Any way you cut it, the reformers have sent an incredible message," said Terry Madonna, political science professor at Franklin & Marshall College. "This election was a proxy for bigger reforms, and the momentum will now be ratcheted up. The insurrection continues."

Potts noted that the July 7 pay-raise law was passed at 2 a.m. without public debate. He said the court has previously allowed lawmakers to take extra pay in midterm through unvouchered expenses, despite a state Constitutional ban on legislators' raising their pay in the same term.

"It's not the job of the courts to say, 'Whatever they want is OK by me,'" Potts said.

Posted by Marcia Oddi on Wednesday, November 09, 2005
Posted to Indiana Courts

Environment - Many interests combined to make possible the State's purchase of the Goose Pond and Beehunter Marsh properties

The Linton Daily Citizen has a good story today by Andrea McCann on the purchase of the Goose Pond and Beehunter Marsh properties. It begins:

Funds for the purchase of the Goose Pond and Beehunter Marsh properties south of Linton came from a variety of sources eager to see the wetlands restored to their original natural state.

Around two dozen groups partnered to make the $8 million acquisition. At a news conference Tuesday to announce the purchase, it was repeatedly called a “landmark acquisition” and a “historic event” for that reason, among others.

Posted by Marcia Oddi on Wednesday, November 09, 2005
Posted to Environment

Courts - Running for judge in Pennsylvania

In a March 23, 2005 ILB entry we reported on "Running for judge in North Dakota." A federal judge in North Dakota had held, according to a press release from the winning attorney, James Bopp, Jr, Terre Haute:

that two canons based on the American Bar Association’s 1990 Model Code of Judicial Conduct were unconstitutional. The court held that provisions of North Dakota’s Code that forbid judicial candidates from making “pledges or promises” of conduct in office or to “commit or appear to commit” candidates to decide a case violate the First Amendment because they forbid judicial candidates from announcing their views on disputed legal and political issues.
The ILB entry links to the North Dakota opinion, plus to a entries on a similar decision in Kentucky, and to pending cases in other states, including Indiana.

Last week a federal judge in Pennsylvania rejected a similar suit because "Plaintiffs fail to satify standing and ripeness requirements." The decision, which I have posted, is Pennsylvania Family Institute v. Black (MD Pa., 11/4/05).

Howard Bashman of How Appealing reported on the decision in an item Tuesday. In a story written before the decision but after the oral argument the Harrisburg Patriot-News reported:

A federal judge is considering a request by a conservative family values group to lift the rules that bar Pennsylvania judicial candidates from commenting on issues.

U.S. District Judge Sylvia Rambo is considering a petition filed by the Pennsylvania Family Institute to determine whether she should issue a restraining order to allow judicial candidates to answer a questionnaire they sent out in September. * * *

The suit says of 20 responses PFI received, 15 candidates declined to answer some of the questions, citing the state's Canons of Judicial Conduct, which prohibit candidates from making promises or committing themselves to certain positions.

The suit asks Rambo to prohibit the Judicial Conduct Board or the Office of Disciplinary Counsel from enforcing those provisions against candidates who answer the survey.

The survey asks questions such as whether the landmark abortion case Roe v. Wade was correctly decided and whether the state constitution would permit same-sex marriage, prayer in school or the display of the Ten Commandments in a courtroom.

James Bopp Jr., an attorney for PFI, argued for a temporary restraining order yesterday, saying the judicial code violates the candidates' right to free speech and the group's right to receive free speech. Some candidates answered the questions, which are attached as an exhibit to the suit.

Under questioning by Rambo, Bopp said PFI has chosen not to publish the surveys for fear the candidates will be disciplined under the judicial canons. In the letter to candidates, the group says it planned to publish the responses on its Web site. The letter says the group believes responses are protected by a 2002 U.S. Supreme Court decision from a case in Minnesota. Bopp said similar cases in Indiana, Kentucky, North Dakota and Alaska have been decided in their favor.

However, the Indiana case, Right to Life v. Shepard, is still pending. The defendants' motion to dismiss on standing, ripeness and abstention is pending before Judge Sharp in the ND Indiana. In answer to my question, George T. Patton, Bose McKinney & Evans LLP, representing defendants (Randall T. Shepard, et al.), along with the Attorney General, reports that "Because affidavits were attached to our motion, Judge Sharp has converted our dismissal into summary judgment and ordered all parties to file any arguments and evidence relevant to that by the end of the year with replies in April of next year."

Posted by Marcia Oddi on Wednesday, November 09, 2005
Posted to Indiana Courts

Law - New Chief Justice learning the ropes

NY Times reporter Linda Greenhouse has a story today that starts on a light note about the new Chief Justice and moves on to touching observations on the last days of the Rehnquist term. Some quotes:

At the end of the first week of the Supreme Court's new term, the justices assembled to discuss the week's cases, and, following protocol, Chief Justice John G. Roberts Jr. stated his own views first. Then, in keeping with the court's tradition for the justices-only conference, the new chief called on the others, one by one.

He did so in order of seniority, referring to his colleagues in the most formal terms. First, "Justice Stevens," followed by "Justice O'Connor" and then "Justice Scalia."

Justice Antonin Scalia interrupted. "I will always call you Chief," he said. "But to you, I'm Nino, and this is Sandra, and this is John."

This vignette, described by Justice Clarence Thomas at a judicial conference in Colorado Springs late last month, is deliciously revealing of a Supreme Court in the midst of a generational shift.

Posted by Marcia Oddi on Wednesday, November 09, 2005
Posted to General Law Related

Ind. Econ. Dev. - Mountains of Corn and a Sea of Farm Subsidies

"Mountains of Corn and a Sea of Farm Subsidies" is the headline to a very interesting (and long) front-page story in the NY Times today. Those who recall the "mountain of corn" photo from the NWI Times last week can compare it with this one from Ralston, Iowa photo in the NY Times story. Some quotes:

For critics of the American subsidy system, the record corn production highlights the tenuous assumptions underlying the program. Farmers are encouraged to produce as much as they can with the idea that greater exports will soak up the excess production. More recently, there are high hopes for using corn to produce ethanol for gasoline, but the infrastructure to produce large amounts of ethanol will take time.

But the huge volumes in recent years have not been matched by greater demand for American corn, and the woes created by two big harvests, along with the stifling effect of Hurricane Katrina on the transport of grains, have kept exports in check, analysts and grain traders said.

"We are still in a condition of grossly overproducing for what the market can pay, at least what the market can pay that is acceptable to our corn producers," said Ken Cook, president of the Environmental Working Group, an environmental research group based in Washington that has been critical of farm subsidies. "We can't make up the difference in the export market, and the taxpayers are on the hook."

The government spent $41.9 billion on corn subsidies from 1995 to 2004, according to the Environmental Working Group.

So far, current and future corn shipments of 550 million bushels are running 11 percent behind last year's level of 640 million bushels in early November, according to government figures. But lately foreign and domestic buyers, sensing fire-sale conditions, have started to snap up corn at historically cheap prices, said Steve Bruce, a grain trader with Man Financial in Chicago. "We have reached the saturation point where the grain elevator managers have said we just have to sell the stuff," he said.

With corn spilling out everywhere, the Agriculture Department predicted last month that American corn growers would receive an average of $1.85 a bushel for their new corn, which would be the lowest price since the late 1990's. The government is expected to release new estimates for crop production and exports on Thursday.

Thise photo and this photo are also pretty overwhelming in terms of lack of storage space.

Posted by Marcia Oddi on Wednesday, November 09, 2005
Posted to Indiana economic development

Ind. Decisions - Indiana law does not permit recovery of punitive damages from a decedent’s estate

In Alicia and Jacelyn Crabtree, b/n/f Kimberly Kemp v. Estate of Jackie L. Crabtree, Jr., decided today, Justice Boehm writes:

The plaintiffs in this case were injured in an accident as passengers in a car driven by their father while he was intoxicated. After their father died of unrelated causes, the children brought this suit against his estate. We hold that Indiana law does not permit recovery of punitive damages from a decedent’s estate. We also hold that under the terms of this policy, the final judgment should exclude damages included in the verdict that were already satisfied by pay-ments under the defendant’s medical expenses coverage. * * *

Conclusion. The trial court’s dismissal of the punitive damages claim and also the trial court’s grant of the Estate’s motion to reduce the compensatory judgments by amounts advanced by Allstate on behalf of the Estate for the plaintiffs’ medical expenses under the terms of the insurance policy are affirmed.

Shepard, C.J., and Rucker, J., concur.
Dickson, J., dissents from Part I and concurs in Part II with separate opinion. Sullivan, J., dissents from Part I with separate opinion and concurs in Part II.

Posted by Marcia Oddi on Wednesday, November 09, 2005
Posted to Ind. Sup.Ct. Decisions

Environment - Peabody mine waste; Visclosky appropriation; South Bend settlement

"Peabody mine waste plan worries environmentalists" is the headline to an AP story today in the Evansville Courier& Press. The story begins:

MARISSA, Ill. - Peabody Energy Corp. wants to store on previously mined land coal-combustion waste from its planned $2 billion power plant near this Southern Illinois town, stoking worries among environmentalists that the waste could seep into local water supplies.

The Illinois Environmental Protection Agency plans to hold a hearing Wednesday night in this Washington County community over two Peabody permit requests - one to allow some runoff from the mine to flow into a Mud Creek tributary, the other to allow the disposal of coal combustion waste at an existing coal mine.

"Visclosky secures $24 million for flood protection, environmental projects" is the headline to this story today in the Munster (NW Indiana) Times:
WASHINGTON, D.C. | U.S. Rep. Pete Visclosky, D-Ind., announced Tuesday that Northwest Indiana will receive $24.275 million for flood control, infrastructure and environmental projects under the Energy and Water Appropriations Act that is set to pass both houses of Congress and signed into law by President Bush.

According to Visclosky, the projects, which will be directed at flood control projects, environmental cleanup efforts and investment in local infrastructure, are all part of improving the quality of life in Northwest Indiana.

In the legislation, Visclosky secured a total of $14.7 million for flood control projects in Northwest Indiana. $6.5 million will go toward the Little Calumet River Flood Control project, which includes 22 miles of levees and flood walls to protect citizens and businesses in Gary, Griffith, Hammond, Highland and Munster. To date, Visclosky has secured $105.2 million for this project.

In addition, Visclosky secured $8.2 million for the Cady Marsh Ditch project, which provides a necessary marsh-land offset for the Little Calumet Flood Control Project. This funding amount is $4.2 million higher than the originally budgeted $4 million as passed by the House in May of this year.

Visclosky also secured funding for several environmental projects in Northwest Indiana. The Indiana Shoreline Erosion Project will receive $275,000 to fund operations. For many years, the natural movement of sand along the lakeshore has been interrupted by harbor structures, causing accelerated erosion of the beach and dunes. The continuation of this project is necessary to slow the erosion and reverse its effects to protect the beaches for future generations.

Visclosky also secured $300,000 to continue the environmental restoration at Wolf Lake. These funds will assist with the reconstruction of wetlands and aquatic habitats.

In Whiting, Visclosky secured $100,000 for the Whiting Shoreline Protection project. This project will determine the best way to protect the Whiting shore from storm damage and reverse existing damage to the area.

Visclosky was also able to secure $300,000 for an ecosystem restoration project for Cedar Lake. The goal of the project is to deepen the lake and restore its natural ecosystem, which for decades has been affected by natural pollution.

Several infrastructure projects throughout Northwest Indiana will also receive funding. The Indiana Harbor in East Chicago will receive $8 million for a Confined Disposal Facility, $300,000 for operation, maintenance and dredging, and $300,000 for dredging along the Indiana Harbor and Grand Calumet River. Visclosky also secured $800,000 for operation, maintenance and dredging at the International Port of Indiana in Porter County.

"South Bend settles environmental case: Lawsuit against Studebaker's successor continues" is the headline to this story today in the South Bend Tribune. Some quotes from the story by Jamie Loo:
SOUTH BEND -- The city settled its environmental case with Allied Products Corp. but is still involved in a lawsuit with Studebaker's insurers.

City officials and the attorney for the two cases, Jeff Featherstun of Plews, Shadley, Racher and Braun, wouldn't disclose the amount awarded in the settlement. Featherstun said a confidentiality agreement with Allied bars them from discussing it. [my emphasis]

The Common Council approved transfer of the settlement money to Fund 209, a city Community and Economic Development fund. Fund 209 is for nontax revenue money such as federal grants and private donations, specifically related to the Studebaker/Oliver Revitalization Project. All money in the fund goes toward redevelopment for the corridor.

Public records for transactions in Fund 209 for the month of October show a "proceed settlement" of more than $600,000. Featherstun would not confirm or deny that amount.

In the early 1990s, the city found environmental contamination affecting the soil and groundwater at the former Studebaker facilities and surrounding area. Allied Products Corp. occupied some of the former Oliver Plow Works properties and a nearby stamping plant on South Franklin Street. Two separate lawsuits were filed to help the city recover costs for contamination cleanup and building demolition, according to Tribune archives. * * *

The other environmental case in the Studebaker/Oliver Corridor involving Studebaker's successors has taken many twists and turns. Studebaker Corp.'s alleged liability insurance company, McGraw-Edison Co., tried to claim it was not the legal successor to the Studebaker Corp. But in August, Marion County Superior Court ruled that McGraw-Edison is the legal successor. The court also denied McGraw-Edison's motion for a summary judgment on all claims.

Here is a 1/20/05 ILB entry relating to the Studebaker case.

Posted by Marcia Oddi on Wednesday, November 09, 2005
Posted to Environment

Law - Election results on items the ILB has been following

The creation of an independent panel to redraw legislative districts failed yesterday in Ohio, as did a similar proposal in California, according to this story in the NY Times.

Fanon Rucker lost his bid for election as judge in Hamilton County, Ohio, according to this report from the Cincinnati Enquirer.

Posted by Marcia Oddi on Wednesday, November 09, 2005
Posted to General Law Related

Ind. Gov't. - "Transparency in government" remains a goal

Town of Speedway. "Confusion about the availability of Speedway's redevelopment plan stalled a public hearing and prompted officials to improve efforts to keep residents and business owners informed." So reads the lead to this story by Josh Duke today in the Indianapolis Star. More:

"We don't want to be in a situation where the public feels like they don't have all the information," said Commission President Scott Harris. "I was embarrassed by that, and it won't happen again."

Harris' pledge came after Susan Luebbert, who owns Speedway Monogramming, a business within the town's designated redevelopment area, objected to Monday's public hearing because she could not obtain the complete redevelopment plan from the town before the meeting.

Harris promised to have copies available by Thursday at Town Hall and rescheduled the public hearing to 6 p.m. Nov. 21 at Speedway Public Library.

The Star had a story Sunday about the upcoming public hearing. Some quotes:
Town leaders envision transforming the aging industrial community into a year-round tourist destination by tapping into the motor sports industry. Upscale restaurants, condominiums and racing-related activities have been considered. The effort will include dressing up downtown buildings along Main Street and adding decorative landscaping and lighting.

Don Katterhenry, a member of the Old Speedway City Neighborhood Association, which was formed partly to seek the historic designation, is happy the park service acted before rehabilitation work could begin. "I just want the town's history preserved," he said. "The redevelopment members seem to agree, but this redevelopment thing is a little scary for me."

The historic designation, encompassing an area bounded by Main, 16th and 10th streets and Winton Avenue, is largely honorary. It puts no restrictions on what residents can do to their homes.

However, rehabilitation work on private property in the area now is eligible for income-tax credits, said Amy Walker, survey and registration assistant for the state's Division of Historic Preservation and Archaeology.

Also, nonprofit agencies, government organizations and educational institutions are now eligible for grants to help pay for work within the district, she said.
"Hopefully, the people that live in this historic district will take care of their homes and will not change them too much," Katterhenry said. The neighborhood association had sought the historic designation for years but lacked funding to pay a private company to catalog the buildings. * * *

The Speedway Redevelopment Commission will give residents and business owners an opportunity Monday to share views on how to revitalize the town.

The Town of Speedway does not appear to have a website where governmental documents such as the redevelopment plan and the historic designaation plan could be made readily available.

State of Indiana. JK Wall of the Indianapolis Star reports today, in a story headlined "IMI wins $30 million in state contracts," that:

An Indianapolis-area concrete firm that pleaded guilty to price-fixing will be given $30 million in state contracts to pave roads from Fort Wayne nearly to Evansville.

Irving Materials Inc. won those contracts for one of its subsidiaries after agreeing to give $2 million toward a possible settlement with the state of Indiana.

That deal, struck between Greenfield-based IMI and the Indiana attorney general's office, was announced Tuesday. The state said it wants to recover money lost by taxpayers, but it also wants to get the best deal on the highway projects, and IMI was the lowest bidder on these contracts.

Four IMI executives, who also pleaded guilty to price-fixing, have agreed to not serve as officers or directors of IMI for three years. Those four -- Fred R. "Pete" Irving, Price Irving, John Huggins and Daniel Butler -- had already stepped down from their positions before the agreement was reached. They are scheduled to be sentenced in December. * * *

Federal investigators have said IMI conspired with other firms to fix the price of ready-mix concrete between July 2000 and May 2004. The scheme affected nearly all concrete sold in the Indianapolis area during that time, investigators said. IMI is paying a $29 million fine, the largest ever in a domestic price-fixing case.

IMI will benefit from the settlement because its wholly owned subsidiary, E&B Paving, will be awarded 10 contracts with the Indiana Department of Transportation. E&B Paving had been the low bidder on those contracts, but INDOT had held those contracts in a "pending" status until IMI agreed to acceptable terms with the attorney general.

INDOT would have paid $1.9 million more if it had hired the second-highest bidders on the contracts, according to INDOT spokesman Gary Abell. In 2004, E&B Paving performed 63 contracts or subcontracts for INDOT valued at $151 million. These are the first contracts it has received from INDOT since IMI's guilty plea was announced June 29. "We wanted to serve the taxpayer interests here," Abell said. "IMI has shown good faith, so we're reciprocating as we move toward a settlement."

In releasing those contracts, which are for roadwork from Fort Wayne to Warrick County, the state also insisted that IMI appoint one independent director to the board of E&B Paving.

The state will consider future contracts with IMI or E&B Paving case by case, Schultz said.

Here is the Governor's press release, dated Nov. 8. However, a copy of the "deal, struck between Greenfield-based IMI and the Indiana attorney general's office," as described in the Star story, does not appear to be available online at the State's website. The federal antitrust filings, plea agreement, and federal DOT "Suspension and Proposed Debarment From Federal Nonprocurement Programs" are all readily available, however.

State of Kentucky. The Louisville Courier Journal reports today:

FRANKFORT, Ky. -- A Transportation Cabinet lawyer refused to say yesterday whether the agency would go to court to keep secret the bills from outside lawyers hired to review records sought in the state hiring investigation.

The refusal frustrated Sen. Ernesto Scorsone, D-Lexington, a member of the General Assembly's Government Contract Review Committee. "Are you all still going to stonewall the public looking at these records?" Scorsone asked Transportation Cabinet lawyer David Sanford.

Sanford said the agency would abide by a final order of a court, but then refused to say if the cabinet would go to court to prevent disclosure of the records. "This is unconscionable," Scorsone responded.

At the Finance Cabinet, spokeswoman Jill Midkiff said her agency will ask a court to allow lawyers' bills to be kept secret.

Posted by Marcia Oddi on Wednesday, November 09, 2005
Posted to Indiana Government

Tuesday, November 08, 2005

Ind. Law - Judge uses "new law" to take guns from Carmel man [Updated]

"Judge uses new law to take guns from Carmel man" is the headline to a story by James A. Gillaspy posted earlier today on the Indianapolis Star website. Some quotes:

NOBLESVILLE, Ind. -- A judge today blocked a Carmel man's attempt to retrieve his legally-owned guns from police custody.

The ruling by Hamilton Superior Court Judge Steve Nation may be the first use of a new state law enacted after the 2004 slaying of an Indianapolis policeman by a rampaging mental patient. * * *

"We thought that Mr. Sloan was potentially a threat to himself or others," said Hamilton County Prosecutor Sonia Leerkamp. Leerkamp presented the police request to retain the firearms under a law legislators passed after IPD Patrolman Timothy "Jake" Laird was killed by Kenneth Anderson as he shot his way through a Southside city neighborhood. * * *

As a result of the subsequent rampage, legislators enacted a law allowing police and prosecutors to seek a court order to retain custody of weapons taken from uncharged but "dangerous" subjects who may be mental or emotionally unstable.

Here is the 2005 law, HEA 1776 (PL 187-2005).

[Updated 11/9/05]
Here is the story as published today in the Star, accompanied by a side-bar summarizing the new law:
A "dangerous" person is defined as one who presents an imminent or future risk of injury to someone and who has either a mental illness not voluntarily controlled by medication or is shown by documented evidence to have a "propensity for violent or emotionally unstable conduct."

A county prosecutor can petition a judge for a court order extending police custody for at least six months, at which time the petition can be renewed. A judge's decision is based on a court-ordered review of the risk posed.

Here is the codified provision itself, IC 35-47-13. Notice that two differing versions of the law passed, that cited above ("version b") and PL 140-2005 (HEA 1159) (version a).

Posted by Marcia Oddi on Tuesday, November 08, 2005
Posted to Indiana Law

Ind. Gov't. - Angola dentist's attorney blasts suspension

"Angola dentist's attorney blasts suspension" is the headline to a story by Jim Measel
on WTHD, LaGrange Indiana this afternoon. Some quotes:

ANGOLA - The attorney for an Angola dentist whose license was suspended is complaining about the way the state handled the proceedings. Angola attorney Beth Beech says she and fellow attorney Allen Stout were given less than 48 hours by Indiana Attorney General Steve Carter to prepare for a hearing before the State Dental Board last Friday concerning their client Doctor Penny Dunlap.

Beech says in a written statement issued this morning that the Attorney General's office filed a petition with the Dental Board last Wednesday and that she and Stout did not get a copy until the following afternoon for the Friday hearing. Beech adds the Hearing Notice was not issued by the Board until last Thursday afternoon and that she and Stout got the notice yesterday, three days after the hearing took place.

Dunlap's license was temporarily suspended for 90 days by the State Dental Board last Friday pending a full hearing by the Board over allegations she mis-diagnosed the number of cavities in three patients. Beech adds a representative from the Attorney General's office made a so-called courtesy call last Wednesday afternoon to notify her and Stout of the petition filing and hearing time with the State Board of Dentistry but the message did not include all details of the Hearing Notice.

In contrast, Beech says Carter's office had sufficient time to subpoena two witnesses to provide testimony at the hearing. A press release was issued by Carter to various news media outlets around the state following Friday's hearing.

Here is the official agenda for the meeting of the Dental Board last Friday, Nov. 4. Apparently the disciplinary action at issue is Item VIII, labeled "To be announced."

The Fort Wayne Journal Gazette had a brief story Sat., Nov. 5, headlined "Angola dentist suspended: Accused of finding phantom cavities." Some quotes:

An Angola dentist’s license was suspended Friday after allegations that she diagnosed patients with cavities that didn’t exist.

The Indiana Board of Dentistry suspended the license of Penelope Lynn Dunlap, 35, at the request of state Attorney General Steve Carter. According to a written statement from Carter’s office, the suspension will be effective for 90 days pending a full hearing by the board. * * *

On Sept. 21, Dunlap’s office was searched as part of a Medicaid fraud investigation, according to the attorney general’s office. At that time, patient records, Medicaid claims and computer equipment were seized by Carter’s Medicaid Fraud Investigation team and the Indiana State Police.

Dunlap’s office was closed about two days as a result of the search. That investigation is ongoing, the attorney general’s office said.

Posted by Marcia Oddi on Tuesday, November 08, 2005
Posted to Indiana Government

Ind. Econ. Dev. - Gary's Marquette Park gets $20 million

"Visclosky wins $20 million for Marquette Plan" was the headline to a story yesterday in the Chesterton Tribune that reported:

U.S. Rep. Pete Visclosky, D-Ind., today announced that he has secured $20 million for the Marquette Plan, his proposal to reclaim sites along the Lake Michigan shoreline for public recreational use.

The funding, secured in the Energy & Water Appropriations Act of 2006, will give the Marquette Plan a head start for the design, construction and completion of specific projects along the lakeshore, Visclosky said.

The state law that created the new Northwest Indiana Regional Development Authority cites the lakeshore development as one of the projects that the RDA is expected to financially support. The others are enhanced air, rail, and bus transportation and other economic development projects.

“The pieces are in place to successfully invest in Lake Michigan’s shoreline,” Visclosky said in a statement. “We have the support of all five lakefront mayors. We have significant financial support at the federal level, and we have the Northwest Indiana Regional Development Authority (RDA), which is a permanent local funding source that was created specifically to match federal investment in lakeshore and other economic development projects. The fact that we have identified funding sources for the Marquette Plan means that we’ll be able to hit the ground running when it comes to initiating work on specific projects.” * * *

The Marquette Plan, which has been agreed to by the mayors of Portage, East Chicago, Gary, Hammond and Whiting, calls for 75 percent of the lakeshore, from Illinois to the eastern edge of Portage, to be open for free public use. The plan also calls for a minimum setback of 200 fee for projects on the lakefront, with a continuous biking and walking trail.

The Gary Post-Tribune has a story today.

For background, see this ILB entry from 6/15/04.

Posted by Marcia Oddi on Tuesday, November 08, 2005
Posted to Environment | Indiana economic development

Ind. Law - Your castle -- or government's domain?

"Your castle -- or government's domain? Legislatures, including Indiana's, respond to high court ruling" was the headline to this story by Joe Gerrety yesterday in the Lafayette Journal&Courier. Some quotes from one aspect of the lengthy story:

For Lafayette resident Norman DeBoy, it's hard to imagine the process of eminent domain could be worse than the 15 years of stress he and his wife went through after Prophetstown State Park was announced.

Giving up the 7.5-acre site that he'd called home for 70 years to make way for a park was hard enough. But the thought that the government could have taken the property to clear the way for a private development would be another matter altogether.

"That's a whole lot worse," said DeBoy, a retired farmer. "The private sector is supposed to be free enterprise, isn't it? And that's not free enterprise." * * *

After two years of "pretty hard negotiating," Norman DeBoy took the state's offer for the home he built in 1969 and raised his four children in, along with his land and a pole barn. The house and barn have been torn down and the lot sits vacant, across Swisher Road from the Museum at Prophetstown.

DeBoy and his wife, Rita, now live in Lafayette, closer to their grandchildren. DeBoy said it's a shame the state park isn't really using the land, and no one is paying taxes on it anymore.

In that respect, it might have been better if a private developer had been involved. "If it'd been private," he said, "we'd still have taxable property, wouldn't we."

For more, see this 11/4/05 ILB entry.

Posted by Marcia Oddi on Tuesday, November 08, 2005
Posted to Indiana Law

Ind. Decisions - Court of Appeals deals with several issues today [Updated]

In Frank Rembusch v. State of Indiana, the Court, in an opinion by Judge Baker, affirms the trial court:

Rembusch argues that: (1) the admission of the breath machine certification in this case violated the Confrontation Clause3 of the United States Constitution and his right to meaningful cross-examination, and the State failed to establish a proper foundation for its admission; (2) the breath test results were erroneously admitted because of hearsay prohibitions; (3) the BAC conviction must be reversed because the State failed to prove Rembusch’s alcohol level at the time he operated the vehicle; and (4) the evidence was insufficient to support the conviction for public intoxication. Concluding that there was no error, we affirm the judgment of the trial court.
In Stephen C. Hilbert, et al. v. Conseco Services, L.L.C., a 30-page opinion, Judge Darden concludes:
The trial court did not err in granting Services’ motion for partial summary judgment because the language of the pertinent agreements establish Hilbert’s liability on the Services Notes and Guarantees and the inapplicability of the equal treatment provision. Further, Hilbert cannot assert a Regulation U defense. Therefore, the trial court’s order is affirmed.
[Update] Posted on the Indianapolis Star website at 11:39 a.m. is a story by JK Wall that begins:
The Indiana Court of Appeals upheld a lower court's decision to require Stephen C. Hilbert to pay $72 million to Conseco Inc., the insurance company he founded and led onto the Fortune 500. The debt stems from company-backed loans Hilbert borrowed in the late-1990s to buy Conseco stock. Hilbert will appeal the decision to the Indiana Supreme Court, said spokeswoman Myra Borshoff Cook.

The 30-page ruling comes two months after attorneys for Hilbert and Conseco argued the case before a three-judge panel in Muncie, Ind. Judges Patricia Riley, Carr Darden and Paul Mathias were unanimous in their opinion, issued this morning.
See the 9/9/05 ILB entry titled "Tomisue and Stephen Hilbert attend Court of Appeals arguments in Terre Haute."

[Updated again 11/9/05] Here is the story as published in today's Indianapolis Star.

In City of Carmel, Indiana v. Carl Michael Steele, et al, Judge Robb writes:

The City of Carmel appeals the trial court’s order finding that its ordinance C-265 was invalid. We affirm. * * *

Carmel raises two issues for our review, which we consolidate and restate as whether the trial court properly found that Carmel’s ordinance C-265 was invalid because the territory that ordinance sought to annex was not contiguous with Carmel. * * *

Carmel did not introduce sufficient evidence to prove that at the time AMLI filed its petition requesting annexation its property was contiguous with Carmel’s boundaries. Therefore, Carmel did not have the authority under Section 5.1 to pass an ordinance annexing AMLI’s property, and the trial court properly found that ordinance C-265 was invalid.

Conclusion. The trial court had the authority to review whether Carmel satisfied the statutory conditions of annexation provided in Section 5.1. Carmel did not produce sufficient evidence to prove that at the time AMLI filed its petition requesting annexation its property was contiguous with Carmel’s border, and, thus, Carmel lacked the authority under Section 5.1 to pass an ordinance annexing AMLI’s property. The trial court’s order finding ordinance C-265 invalid is therefore affirmed.

Posted by Marcia Oddi on Tuesday, November 08, 2005
Posted to Ind. App.Ct. Decisions

Environment - Mountaintop mining; Delaware County Ag Park; Recycling Building Waste

Mountaintop mining. The Louisville Courier Journal reports today:

PIKEVILLE, Ky. -- Environmentalists asked a federal judge yesterday to stop the Army Corps of Engineers from issuing permits that allow coal mine companies to push mountaintops into valleys. The opponents of mountaintop mining are hoping for a victory similar to one they won last year in West Virginia. Environmentalists argue the mining practice is so destructive that it should be banned.

But Paul Cirino, a lawyer for the U.S. Department of Justice's environmental defense section, said the corps has scientists who make sure the environmental effects from so-called valley fills are minimal. * * *

U.S. District Judge Joseph R. Goodwin of West Virginia ruled last year that the corps failed to comply with the federal Clean Water Act in approving valley fill permits in southern West Virginia's mountainous coalfields.

The Ohio River Environmental Coalition argued that valley fill applications should undergo individual scrutiny because of the potential of significant environmental effects.

See this 8/24/05 ILB entry. Type "mountaintop mining" in the search box for more.

Ag Park. The Muncie Star-Press has a story on the Delaware County Ag Park here.

Recycling Building Waste.
The Fort Wayne Journal Gazette has an editorial on recycling building waste. Some quotes:

More than 130 million tons of debris from construction sites is dumped in U.S. landfills annually, according to the U.S. Environmental Protection Agency. Much of that debris – between 80 percent to 95 percent – could be recycled, but it isn’t happening. A new project from the Allen County Solid Waste Management District to encourage home construction site recycling should extend the life of local landfills and save contractors money. * * *

To get local builders and contractors interested in recycling, the district invited contractors to a demonstration of new technology that takes huge loads of recyclable construction materials and grinds them into tiny pieces. Construction companies should find the amount of money they are able to save through recycling impressive.

Leftover lumber becomes landscaping mulch. Drywall becomes a sought-after soil additive for local farmers. Farmers use the gypsum to loosen clay soil reducing the amount of irrigation needed. “It saves the environment and saves contractors money, which will, hopefully, trickle down to the consumer as well,” Copeland said.

Posted by Marcia Oddi on Tuesday, November 08, 2005
Posted to Environment

Ind. Decisions - Implications of "Decision in one federal trial over whether communities have right to restrict new medical centers"

The Munster (NW Indiana) Times has a story today on last week's ruling by federal Judge David Hamilton on whether communities have right to restrict new medical centers (see ILB entries here and here). The headline is "Federal judge blocks hospital building ban: Ruling confirms suspicions of local officials who considered similar measure." Some quotes:

A federal judge has ruled that Indiana's counties do not have the authority to block hospital construction projects, a ruling that confirms the fears of Porter County officials who considered passing a similar measure this summer.

However, another judge is weighing arguments in a similar case where hospital operators are looking to expand into growing suburban areas. * * *

At least four other Indiana counties have adopted similar ordinances.

Officials at Porter hospital asked the Porter County Commissioners to consider passing the ordinance in June, but Commissioner Bob Harper was cool to the idea, which he said restrained competition.

County Attorney Gwenn Rinkenberger said she didn't expect the moratorium could survive a legal challenge after she studied the lawsuits against Morgan County and Clark and Floyd counties.

On Monday, Harper said, "I think it agrees with what I always thought legally and what the county attorney always said." * * *

Bob Morr, a spokesman for the Indiana Hospital and Health Association, said it was unclear whether Hamilton's decision would remove the barriers posed by the county ordinances. "Another judge could see it a different way," he said.

Posted by Marcia Oddi on Tuesday, November 08, 2005
Posted to Ind Fed D.Ct. Decisions

Monday, November 07, 2005

Courts - A look at the the coming judicial elections in Kentucky

In Kentucky all judges are elected on non-partisan ballots. The Louisville Courier Journal on Saturday published two stories that bring into focus a variety of items that have been posted on the ILB over the past months.

The first is an editorial from the paper itself:

Wednesday, when candidates can begin to file their papers, will be the first day of the 2006 campaign in which every judicial post in Jefferson County, and 272 judicial seats statewide, will be on the ballot.

The job of sorting through so many candidates would be daunting for voters under the best of circumstances. But there's a wild card that could make it even harder and change, not necessarily for the better, the quality of justice and the promise of fair trials.

Because of a 2002 Supreme Court ruling written by Justice Antonin Scalia, candidates for judge can no longer be prohibited by judicial conduct rules from stating their views on issues such as abortion, capital punishment and gay rights -- issues that very well could come before them for supposedly impartial adjudication.

The case was brought by the Republican Party in Minnesota, but it has been very popular with far-right groups that want to polarize judicial campaigns over those hot-button topics.

To its credit, the legal profession is reacting forcefully to the challenge. In an article on the facing page today, two leaders of the Louisville Bar Association outline ways in which their group plans to monitor the elections and educate the public. We'll be paying close attention in this space, too.

As the bar leaders note in their article, despite the high court's ruling, judges still have to follow the Kentucky Code of Judicial Conduct, which says: "A judge or candidate … shall not intentionally or recklessly make a statement that a reasonable person would perceive as committing that judge or candidate to rule a certain way on a case, controversy or issue that is likely to come before the court."

Not every candidate may heed this warning. It's going to be up to the electorate to be aware of those who do not, and to reject their blandishments at the ballot box.

The second is this piece, labeled "The coming judicial challenge," from the Louisville Bar Assocation:
In two months, Kentucky's judicial campaigns will be in full force, with some unprecedented challenges.

First, nearly every seat in every courtroom in Kentucky will be open, a total of 272 judicial campaigns across the commonwealth, including 44 in Jefferson County alone.

Second, because of a recent U.S. Supreme Court ruling, Kentucky's rules governing judicial candidates have been changed to remove the limitations on what can and cannot be said about personal beliefs and political views.

It is not yet certain what impact this will have on campaign rhetoric. Some people believe that "judicial free speech" will make a more informed voter on Election Day. Others argue that judicial campaigns will become just as volatile and partisan as any other election campaign.

This judicial election season is the beginning of a learning process for voters and candidates alike.

Judicial candidates will be asked to share their opinions and beliefs with the public. If they choose to do so, they will need to follow the Kentucky Code of Judicial Conduct, which states in part that: "a judge or candidate … shall not intentionally or recklessly make a statement that a reasonable person would perceive as committing that judge or candidate to rule a certain way on a case, controversy or issue that is likely to come before the court."

Judicial candidates will consider whether they want to walk that fine line in stating personally held opinions or beliefs without suggesting they will rule in a particular way on any issue.

Voters are going to hear about judicial candidates' opinions on all sorts of issues, related and not related to the law. Voters will be exposed to more names, faces, emotions and promises than they have in past elections. Sorting through the rules and the rhetoric will be difficult for candidates and voters alike.

Because of this, the piece continues:
So the Louisville Bar Association has launched an education campaign to help voters in the Louisville area gather the information they need to make informed decisions on Election Day.

The LBA will provide this community with answers to questions about the judicial campaign and about the role judges play in the legal system. This new educational campaign will go into your schools, into your churches and into your social organizations.

One thing is certain: Kentucky voters are going to read and hear a lot more about judicial candidates than they ever have in the past.

And the Louisville Bar Association is ready to help both voters and candidates alike. To speak to an LBA representative or to inquire about having a qualified LBA member talk to your group, please call our hotline (502) 583-8568.

For background, start with this 10/2/05 ILB entry.

[Thanks to the Kentucky Law Blog for the links to this weekend's LCJ stories.]

Posted by Marcia Oddi on Monday, November 07, 2005
Posted to Indiana Courts

Law - Juries in Jefferson County, Kentucky the focus of a LCJ series

"Jury not of their peers: In Jefferson County, people who live in mainly African-American areas are less likely to serve than those from mostly white areas, a Courier-Journal analysis found." That is the overall headline to a series of stories in the Louisville Courier Journal this month. In "About this project" the paper writes:

The Courier-Journal obtained electronic records on 34,000 people who were summoned for jury duty in Jefferson County from May 1, 2004 to May 30, 2005. For privacy reasons, the courts wouldn't release the names or addresses of those summoned for jury duty — only the ZIP codes in which they lived.

The information included whether each person summoned was in the jury pool, served on a trial and was paid for jury service.

The courts also provided information on how many jury summonses went undelivered and how many people were excused from jury service in each ZIP code. * * *

The Courier-Journal's computer-assisted reporting director, Mark Schaver, compared the rate at which people were summoned for jury duty in each ZIP code and found it roughly was the same .

The newspaper then looked at the rate s at which people ended up in the jury pool, served on juries and were paid in 28 ZIP codes where half or more of the residents are white and compared them with the rates for the five ZIP codes where at least half of residents a re black.

The newspaper also compared the rates for people in the five wealthiest ZIP codes with the rates for people in the five poorest ZIP codes, and the rates for people in the five most-educated ZIP codes with the rates for people in the five least-educated ZIP codes.

Posted by Marcia Oddi on Monday, November 07, 2005
Posted to General Law Related

Environment - State can't check all caps on oil wells

"State can't check all caps on oil wells: 2 admit falsifying documents" is the headline to an AP story today reporting:

EVANSVILLE, Ind. -- The government has paid to clean up hundreds of abandoned Southern Indiana oil wells that weren't properly capped and could threaten ground water, officials say.

As many as 670 wells might not have been capped properly, but officials with the Indiana Department of Natural Resources said the state does not have the money to check them all to determine if they are leaking. * * *

Former agency well inspector Donald G. Veatch and contractor Carl F. Hanisch pleaded guilty Friday in U.S. District Court to federal charges of falsifying documents.

Evansville Courier&Press stories published this weekend recount the entire story. See ILB entries at 11/6/05 and 11/5/05.

Posted by Marcia Oddi on Monday, November 07, 2005
Posted to Environment | Indiana Government

Ind. Decisions - Requirements for child in need of services determination

Today the Court of Appeals issued a 10-page rulng in In Re the Matter of J.Q. It is an appeal from the Marion County Superior Court. Judge Riley writes:

Julia Quinton (Quinton), appeals the trial court’s adjudication of her son, J.Q., as a Child in Need of Services (CHINS). We reverse and remand, with instructions. * * *

The limited findings of the trial court, on record at least, make it difficult for this court to determine whether or not a mistake has been made in adjudicating J.Q. as a CHINS. * * * Indiana Code § 31-34-19-10(5) requires that the trial court give reasons for its disposition in a CHINS proceeding. Specifically, we are concerned that procedural irregularities, like an absence of clear findings of fact, in a CHINS proceeding may be of such import that they deprive a parent of procedural due process with respect to a potential subsequent termination of parental rights. * * * Our legislature’s enactment of an interlocking statutory scheme governing CHINS and involuntary termination of parental rights compels this court to make sure that each procedure is conducted in accordance with the law. See id. Both statutes aim to protect the rights of parents in the upbringing of their children, as well as give effect to the State’s legitimate interest in protecting children from harm. Id. We conclude that in order to properly balance these two interests, the trial court needs to carefully follow the language and logic laid out by our legislature in these separate statutes.

In light of the trial court’s failure to adequately state reasons for its disposition, along with its procedural error in admitting J.Q.’s statements, we choose to remand the CHINS determination with instructions that the trial court more specifically follow the requirements of I.C. § 31-34-13-3 and I.C. § 31-34-19-10.

Posted by Marcia Oddi on Monday, November 07, 2005
Posted to Ind. App.Ct. Decisions

Sunday, November 06, 2005

Ind. Courts - High court puts history on trial

"High court puts history on trial: Re-enactment highlights 1820 case that set Indiana on on anti-slavery course" is the headline to a story today by Martin DeAgostino in the South Bend Tribune. The story begins:

INDIANAPOLIS -- Ask anyone who has to read Supreme Court decisions: Fun reading they're not.

But what about a staged re-enactment of one of the most significant cases in Indiana legal history, one that set a course for bold court action against legal slavery and its imitators?

The Indiana Supreme Court will do just that Tuesday, with help from Hoosier students playing the roles of Polly Strong, a Vincennes woman fighting for freedom, and the three Supreme Court justices who recognized her cause.

The premiere of "Bound for Freedom: the Case of Polly Strong" will mark the fourth Supreme Court re-enactment of historically significant cases.

A side-bar indicates that the re-enactment also wll be available "live on the Web at 10:30 a.m. Tuesday at:
www.in.gov/judiciary/citc

Posted by Marcia Oddi on Sunday, November 06, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Lake County judicial election; election vs. retention at the local level

Rich James, Gary Post-Tribune columnist, had a piece Friday titled "Villalpando will survive Cantrell’s onslaught." Judge Jesse Villalpando, James writes, is:

the guy who sits in County Division Room 4 of the Lake Superior Court system.

He has been there since the the court was created in late 2000. The late Gov. Frank O’Bannon appointed him.

With Jesse facing the voters for the first time, [Bob] Cantrell says he’ll do whatever it takes to see that Villalpando goes back to a life of magic tricks or being a lawyer, although some contend there is little difference in the two professions.

Cantrell’s reasons are weak and somewhat ironic. “As a state legislator, he helped get the legislation passed that created that courtroom, then got appointed to the bench and spent more than a year hardly hearing any cases,” Cantrell said.

So, what’s your point, Bob? Aren’t you the guy who thrives on politics? Sure, it was a convenient arrangement for Villalpando, but it worked out in the end. He’s honest and caring — the kind of person you want on the bench.

It is true that Villalpando didn’t have the busiest caseload his first year, but that wasn’t his fault. It takes a while to get a docket up and running.

So what’s really eating at Cantrell? We know it isn’t the size of Villalpando’s caseload five years ago.

Villalpando didn’t mince words in talking about the Cantrell assault. The judge said Cantrell wants him off the bench because he has refused to refer more defendants in his courtroom to the Addiction and Family Services drug center.

Cantrell has worked as a consultant for Addiction and Family Services, meaning he gets a cut of the action when he can pressure someone — such as Villalpando — to provide the clientele.

Villalpando won’t do it, and he’s a better man for it. “He has tried and failed to take control of this court and to corrupt me in the process, so now he wants me out,” Villalpando said.

It’s people like Cantrell who reinforce my contention that judges should be appointed, not elected. That is the case with the bulk of the Lake County judges — those in the civil and criminal divisions.

The appointed judges stand for retention — a yes or no vote. Since the system was instituted in the 1970s, just two judges have lost a retention vote. Criminal Division Judge Andy Giorgi, who should have been retained, wasn’t. Juvenile Division Judge Darlene Wanda Mears, who used her staff as personal servants, was rightly ousted.

Judges shouldn’t have to bow to political pressures in order to keep their jobs. When it comes to that, we no longer will have an honest judiciary.

Quid pro quo is often what lands public officials in court. It shouldn’t be something that determines how long a judge will stay on the bench.

According to the trial court section of the Indiana Court website:
Trial Judges are Elected. In Indiana, the voters elect the judges of most courts every six years, but there are some exceptions.

Lake and St. Joseph Counties
(which include the cities of Gary and South Bend)
Candidates for superior court judge are nominated by local nominating commissions, chaired by a Justice of the Indiana Supreme Court or a Judge of the Indiana Court of Appeals.

After nomination, the Governor appoints judges to serve six-year terms.

Thereafter, they run on a “yes-no” retention ballot.

However, Villalpando's court is called "Lake Superior Court, County Division" and is elective. See this Munster (NW Indiana) Times story from 8/20/05, where: "Merrillville attorney Stanley W. Jablonski announced Friday he will challenge Lake Superior Court, County Division, Judge Jesse M. Villalpando."

Posted by Marcia Oddi on Sunday, November 06, 2005
Posted to Indiana Courts

Law - Two interesting law stories from the area, one about auctions, one about discrimination

"Auction gone bad winds up in court: sellers wanted to keep part of land" is the headline to an AP story in the Evansville Courier& Press today. Some quotes:

BRIDGEPORT, Ind. - A couple who sued an auctioneer for auctioning off five acres near the Ohio River they told him they wanted to keep are awaiting a judge's ruling in the complicated case.

Roger and Carolyn Ehalt allege in their lawsuit that when their historic property in southern Harrison County sold at auction two years ago, they thought they had arranged to reserve five acres for a son.

The further you read in the story, the more complicated it gets.

A story in the Chicago Sun-Times today begins:

CUB RUN, Ky. -- A woman who left the Amish community years ago is refused service by an Amish thrift store owner. The shopper claims her civil rights have been violated; the owner says that serving someone excommunicated from the church would be a serious moral offense.

That's the crux of a vexing discrimination case before Kentucky's Commission on Human Rights, testing how far the Amish can go in practicing their centuries-old faith under the modern-day mores of civil rights.

Posted by Marcia Oddi on Sunday, November 06, 2005
Posted to General Law Related

Ind. Law - Tale of two cities and their curfew laws

The Fort Wayne Journal Gazette has two stories today on curfew laws. One is headlined "Police making do without teen curfew law" and reports that:

City police don’t arrest Fort Wayne teens for staying out past 1 a.m. anymore, but they still keep tabs on the numbers of kids they spot out long after the street lights come on.

Making sure kids get home safely at a decent hour, police said, is part of what officers do to protect the city’s young people. But Fort Wayne police are doing the job without the power of a curfew law and with less money to keep a juvenile safety program going at full force.

The curfew law is defunct because of a federal appeals court ruling last year. And the department did not continue receiving a grant that paid for the program for the past year. But officials believe it’s worth the time and money to continue a scaled-down version of the program.

Before the curfew law was thrown out by the court, police conducted sweeps and focused on kids who violated the curfew. Now, a small group of officers hit the city streets looking for parties, drinking and poor driving most weekends during the summer and several other times throughout the school year.

The second story (both are by Amanda Iacone) reports that:
Indianapolis officials fought to keep its curfew law on the books.

The city revised its own law after the state’s version was ruled unconstitutional three times during the last several years. The city has amended its local ordinance, and in July the Indianapolis Police Department began enforcing a curfew law again, said Lt. Lloyd Crowe, spokesman for the department.

Under the city’s new law, breaking curfew is an infraction, not a crime.

Indianapolis police used to arrest children but now issue citations. Possible fines range from $50 to $2,500.

Sunday through Thursday, those younger than 18 must not be in public past 11 p.m. unless they are going to or from a job, school or religious activity or they are with a parent or guardian. Friday and Saturday nights, teens ages 15, 16 and 17 can stay out until 1 a.m. The 11 p.m. curfew still applies to children ages 14 and under on the weekend. The old state law included these same restrictions.

The updated Indianapolis law, however, gives parents the chance to say they allowed their children to be out past curfew. But for police, the parental exception clause takes some of the bite out of the law, Crowe said.

The state’s curfew law was ruled unconstitutional by a federal judge because it infringed on parental rights, and it was upheld last year by a federal appeals court.

The ILB has had a number of curfew law entries.

Posted by Marcia Oddi on Sunday, November 06, 2005
Posted to Indiana Law

Environment- PCBs; ethanol study; ethanol plant

PCBs. The Indianapolis Star reports today:

Bloomington -- Workers cleaning up PCB-tainted sediment at the former site of a Westinghouse plant have found a previously unknown site contaminated with the harmful chemical -- a discovery that worries nearby residents.

The site was found by workers for Viacom Corp., the corporate owner of what used to be Westinghouse Electric Corp. Viacom is working to clean up PCBs left from Westinghouse's decades of production of electrical capacitors at a now-shuttered plant.

Viacom's testing at the site has revealed PBC levels of up to 180 parts per million, many times more than the 5 parts per million or less that is considered safe, said Dottie Alke, Viacom's vice president of environmental projects.

Alke estimates that, at most, the sludge site covers a couple thousand square feet, but she and Tom Alcamo, the U.S. Environmental Protection Agency's local manager for PCB cleanups, said its exact size has not been determined.

Alcamo said the site -- an abandoned lot southwest of Bloomington -- appears to have been a sludge-dumping site, because no electrical capacitors or related equipment have been found.

Ethanol report. An AP story today reports:
A study of Indiana's agriculture industry concludes that it is well-positioned to become a leader in the production of biofuels, particularly corn-based ethanol.

The study by the State Department of Agriculture [ISDA] found that Indiana has enough corn to support additional ethanol production at a time when there is growing demand for the corn-based fuel additive, which is made from distilled grain mash.

The report does not appear to be online at the state site; rather, a news release on the ISDA site directs you to the site, where all that is available is the news release.

Ethanol plant. "Wells asked to guarantee $50 million for fuel plant" is the headline to a story today in the Fort Wayne Journal Gazette. The story begins:

Wells County business leaders want to build a $134 million ethanol plant on the western edge of Bluffton, a project that they say is timely and necessary.

But to pull it off, they are asking the citizens of Wells County to guarantee $50 million worth of revenue bonds, necessary to the plant’s construction – putting the county on the hook for the money if the project were to fail.

The project is the brainchild of Indiana Bio-Energy LLC, a group of local investors that includes Wells County Commissioner Randy Plummer, and Garry Jones, the chief executive officer of the Wells County Chamber of Commerce and husband of county Auditor Connie Prible. One of Prible’s sons is also listed as an investor.

The matter has not yet come before the County Council for a vote, but developers plan to bring it up within the next month to take advantage of guaranteed construction costs.

A similar story appear 10/10/05 in the Decatur Daily Democrat.

Posted by Marcia Oddi on Sunday, November 06, 2005
Posted to Environment | Indiana economic development

Ind. Law - More on ex-state DNR worker admits fraud

Following up her story yesterday in the Evansville Courier& Press on how a former DNR inspector has admitted to creating fake records for an Illinois oil-well contractor is this story today, also by Maureen Hayden, reporting that:

State officials believe hundreds of old and abandoned oil wells throughout Southern Indiana pose a risk to the environment because of the actions of two former state oil-well inspectors and a private contractor implicated in what prosecutors call a scheme to defraud state and federal environmental regulators.

They also fear the cost of the crime could run into the millions of dollars and could bankrupt the state fund used to clean up abandoned oil wells.

Officials with the Indiana Department of Natural Resources' Division of Oil and Gas say more than 670 old or abandoned oil wells in Southern Indiana should be checked for groundwater contamination, but likely won't be. "We can't open up every well to inspect it,'' said Herschel McDivitt, director of the Oil and Gas Division. "We simply don't have the money."

The cost of reopening, inspecting and replugging the wells could run anywhere from $2,000 to $20,000 per well. Instead, McDivitt has instructed his staff to prioritize the wells in question and come up with a plan for inspecting them. The 670 wells in question are linked to Mount Carmel, Ill., contractor Carl Hanisch, who pleaded guilty Friday to 21 counts of falsifying government documents.

Hanisch and two former DNR inspectors came under investigation in 2002 after the DNR learned one of them, Donald G. Veatch, 54, of Francisco, Ind., was inspecting wells owned in part by Veatch's wife.

There is much more detail in the story, including that "federal prosecutors are pushing for restitution as part of a plea agreement offered to Hanisch and Veatch. In court Friday, Assistant U.S. Attorney Steven DeBrota said the estimated cost of restitution involving 21 wells in Vanderburgh County is between $350,000 to $500,000."

Posted by Marcia Oddi on Sunday, November 06, 2005
Posted to Environment | Indiana Government | Indiana Law

Ind. Gov't. - Failure of school boards to observe open door law

"Private decisions upset public" is the headline to a lengthy story today by Andy Gammill in the Indianapolis Star about the failure of school boards to observe the open door law. Some quotes:

Despite the state's Open Door Law -- which requires most decisions and the discussions leading to them to occur in the open -- many school boards around the state skirt the law, don't know it or simply break it to do their business in private. * * *

The law allows school boards and other government councils to meet privately in narrow circumstances, such as to discuss performance reviews or discipline individual students.

But the law never requires closed-door meetings, and legislators enacted the laws requiring openness in the first place because residents perceived the government to be operating in secrecy.

Lawrence Township School Board President Cheryl McLaughlin said that any time the Northeastside board meets privately, it's to ensure the privacy of students and staff or to avoid tipping the district's hand in negotiations with teachers.

Education lawyers and open government advocates say the law sets an extremely high threshold for private meetings and that budget or curriculum matters should always be discussed at a meeting open to the public. * * *

Some districts adhere rigidly to the law and voluntarily go to great lengths to fix the problem if they mistakenly violate it. But it's impossible to monitor whether school boards stay within the law once the doors are shut.

Karen Davis, Indiana's appointed public access counselor, said she can't think of any legal way the Lawrence Township School Board could have discussed the middle school foreign language curriculum or the budget related to it in an executive session.

An earlier executive session discussing the Lawrence North basketball team, its schedule and an appearance on ESPN also appears to have been illegal, Davis said.

School board members elsewhere have called Davis to ask whether they can have closed-door meetings for similar subjects. "Elected officials are motivated by a strong desire -- not necessarily a nefarious sort of reason -- but a genuine concern that their discussion may bring up a lot of controversy," she said. "If there is a close question, the assumption is it should be open unless there is a specific reason (under the law)."

Posted by Marcia Oddi on Sunday, November 06, 2005
Posted to Indiana Government

Environment - State buys 8,000-acre Goose Pond and Beehunter Marsh

"For birds in transit, a spacious stopover: State buys 8,000-acre site to draw little-seen migratory species" is the headline to the front-page story today by Tammy Webber in the Indianapolis Star. This is a big deal. DNR has been working on this for a long time, through various administrations. Congratulations.

Some quotes from the story today:

After decades of trying, the state purchased the Greene County properties two weeks ago from a Florida businessman for $8 million. Most of the money came from federal grants and groups such as The Nature Conservancy and Ducks Unlimited.

Ecstatic conservationists and state officials, including Gov. Mitch Daniels, will celebrate Tuesday with a formal announcement of the state's newest fish and wildlife area.

"This is not just a gas station for these birds; this is a Super Wal-Mart," said Mary McConnell, director of The Nature Conservancy's Indiana office, which contributed $1 million toward the purchase because of the wetlands' importance to non-native, migrating shorebirds. "This is so big, it can literally change migratory patterns."

Kyle Hupfer, director of the Indiana Department of Natural Resources, said buying Goose Pond was one of his top priorities when he took over the agency at the beginning of the year. The state nearly lost the property last summer, when landowner Maurice Wilder threatened to sell it at auction unless officials met his asking price.

The DNR, which will manage the property, helped find enough investors to seal the deal this year.

Now biologists must finish restoring Goose Pond, a former shallow lake carved out by glaciers that once was famous for its vast waterfowl habitat. Since the early 1900s, though, the land has been drained for farming.

The Natural Resources Conservation Service paid Wilder more than $7 million in 2001 for rights to restore 7,138 acres at Goose Pond and Beehunter Marsh. Since then, crews have broken field drainage tiles to encourage flooding, installed systems to control water levels, planted trees and restored grasslands. Restoration of Beehunter Marsh, which takes up about 1,200 acres of the conservation service's work area, was completed last fall. It will cost more than $5 million to restore both properties.

"We will not get it back exactly like it was because of roads and utilities, but to the best of our ability, we are getting as close as we can to what it was historically," said Jeff Coats, project coordinator for the conservation program.

That is especially important in Indiana, where 87 percent of the original wetlands have been destroyed, experts said. Wetlands help filter groundwater and control flooding, in addition to being important waterfowl habitat.

I looked back for earlier ILB entries on Goose Pond and found this one from Nov. 7, 2004 (last item), which quotes a Fort Wayne Journal Gazette "open letter"/opinion piece, presenting a number of conservationist thoughts/ideas for the new Governor-elect. Two were "buy Goose Pond" and "ban canned hunting of white-tail deer." See also 5/4/04 and 7/8/04.

Posted by Marcia Oddi on Sunday, November 06, 2005
Posted to Environment

Saturday, November 05, 2005

Ind. Decisions - More on decision in one federal trial over whether communities have right to restrict new medical centers

The Moorseville-Decatur Twp. Times has lengthy coverage today of the Morgan County/St. Francis Hospital ruling yesterday (see ILB entry from 11/5/05 here). The story is headlined "St. Francis wins injunction against moratorium ordinance" and is written by Amy Hillenburg and Keith Rhoades. The story begins:

United States District Court Judge David F. Hamilton has ruled against Morgan County’s health care facility planning ordinance on St. Francis Hospital’s behalf, giving St. Francis protection against enforcement of the ordinance as it pertains to plans to expand the hospital’s facilities in Mooresville.

Despite the blow to the ordinance, Ralph Foley, a state representative and attorney for Morgan Hospital, said Thursday afternoon the county was vindicated by the judge because the judge ruled against St. Francis on the two federal counts and the Indiana zoning law. He said the only point the judge found in St. Francis favor was the ordinance was a violation of the state’s home rule law.

Foley said the attorneys for all sides are reviewing the judge’s ruling before making a decision on appealing and said the county continues to struggle with serving uninsured people who need medical care.

Morgan County Attorney Pete Foley said that since the judge ruled against St. Francis on the two federal counts, neither the county nor the hospital will be required to pay St. Francis Hospital’s attorney fees.

Posted by Marcia Oddi on Saturday, November 05, 2005
Posted to Ind Fed D.Ct. Decisions

Courts - Retention vote for Pennsylvania justices becomes a battleground

Two Pennsylvania Supreme Court justices are up for retention next week and there are many newspaper stories arguing that they should not be retained. Why? Because, it is claimed, they have not abided by the "checks and balances" inherent in the separation of powers which would enable them to throw out the Pennsylvania legislature's pay "grab" bill; instead, they have apparently bowed (or it is anticipated that they will bow) to the theory of "legislative discretion" or "legislative prerogative."[*] At least, that is what I get from these stories Howard Bashman linked to in his blog, How Appealing, yesterday. Remember, Bashman is based in Philadelphia.

Here are some quotes from an editorial in The Harrisburg Patriot-News:

State Supreme Court Justices Russell Nigro and Sandra New man, who have served 10 years on the state's highest court and face a "yes" or "no" retention vote on Tuesday, have let the people down.

We don't mean to suggest that they are bad jurists. Quite the contrary. By every account, they are honest, hard-working and quality judges. Nevertheless, they fundamentally failed in the performance of their duties by giving the Legislature a pass when it abridged or ran roughshod over constitutional processes.

Last July's early-morning legislative pay increase has focused an unusual degree of attention on the judicial retention vote, which rarely ever stirs much interest. But if the pay grab pushed Nigro and Newman into the spotlight, there is a much broader and ultimately more important is sue at stake in this vote. And that is whether this commonwealth is going to have a Supreme Court that respects the separation of powers and enforces the checks and balances that are at the heart of a government that deliberately has three centers of power -- the legislative, executive and judicial branches.

Too many times, the state's highest court has extended the Legislature a presumption that in fashioning legislation it adhered to the state constitution, when in fact it had done no such thing. * * *

The state Supreme Court, even in the face of more appropriate lower court rulings, has allowed, more often than not, the Legislature the latitude to operate according to its own rules, overriding in the process the people's rules: the constitution.

An opinion from the The Clarion News:
The issue: Two state Supreme Court justices want you to keep them on the bench.

We suggest: Given their own questionable fiscal behavior and complicity in the pay-grab, a ‘no’ vote is recommended. * * *

We are recommending a "no" vote on the retention question regarding state Supreme Court Justices Sandra Schultz Newman and Russell Nigro.

We can’t list here their respective political parties – we didn’t look their party affiliation up because it doesn’t matter. Democrat or Republican, both justices should be rejected for retention for two reasons.

First, the two justices are part of a state Supreme Court which recently was spotlighted for its members expense accounts.

According to the Patriot News of Harrisburg, the seven justices spent a total of $164,000 on expenses last year.

The expenses included: $1,766 to frame a picture; 115 dinners for Nigro with bills as high as $400, including an $85 bottle of wine; OnStar subscriptions for their privately-owned vehicles; and 34 washes for Justice Thomas Saylor’s car.

Second, this is the first chance voters have to tell our state legislature how we feel about their middle-of-the-night pay grab back in July. The legislature is hoping you’ve forgotten their greed and arrogance.

Why involve the state Supreme Court justices in your anger? Isn’t the Supreme Court – the judicial branch of our state government – supposed to be separate from and a balance to our state legislature and the executive branch? Yes, it most certainly is. Was it a separation from and balance to those branches in the pay-jacking? Not at all. Pennsylvania State Supreme Court Chief Justice Ralph Cappy actually helped engineer the dirty deed and then had the nerve to tell the public the legislature’s action was "courageous." Unfortunately, Cappy doesn’t face a retention vote until 2009.

Those are some of the "opinion pieces." In news stories, the Uniontown Herald Standard reports:
Two Pennsylvania Supreme Court justices are facing a rare foment of opposition to what would normally be quiet and apolitical re-election bids Tuesday as anger from the July pay raise spills into the polls for the first time.

Critics campaigning to unseat Supreme Court Justices Sandra Schultz Newman and Russell Nigro say the two justices do not deserve second, 10-year terms because they and the rest of the seven-member court have failed to keep the Legislature in check with the Pennsylvania constitution.

Specifically, critics point to the court's upholding of what they believe are unconstitutional procedures used by the Legislature to ram through controversial laws, procedures that shut out the public and also debate among rank-and-file members.

The pay raise - which raised salaries for top government officials including the justices themselves - became law at 2 a.m. because the Supreme Court has enabled such procedures, critics claim. * * *

Nigro and Newman did not play an overt roll in the pay raise bill, as Chief Justice Ralph Cappy did, but in a kind of guilt-by-association, the two justices are now having to stand alone for the court's actions and a public that's grown hostile towards state government.

Newman and Nigro did not return calls for comment, in keeping with the typically reserved response judges have towards public debate. But supporters - namely the Pennsylvania Bar Association which endorsed the two justices - say it's unfair to pin judges to individual court decisions because doing so politicizes the bench.

"It is simply unfair on every level to say, 'I've looked at the universe of decisions that a justice has made and I disagree with a couple of them and therefore oppose them,'" said Pennsylvania Bar Association president William Carlucci. "You give justices the feeling that their continued service to the public is based on a popularity contest." * * *

It would be notable, indeed, if opponents were successful in turning one or both of the justices out of office. Never before in the 283-year history of the Supreme Court - the oldest appellate court in the nation - have voters removed a justice in a retention vote.

Normally, such retention elections barely register a blip in public consciousness.

The last time a justice even came close to losing a retention was in 1993 when former Justice Nicholas Papadakos managed only 54 percent of the vote because of controversy over his and other justices' taxpayer-funded expenditures, according to G. Terry Madonna, a political pollster at Franklin & Marshall College.

Similar criticism has arisen this time around, with critics pointing to a Harrisburg newspaper's report showing $164,000 in court expenditures last year, including Nigro's charging of an $85 bottle of wine and meals worth more than $400.

"We are not getting snapshots of public servants, we are getting portraits of royalty," said Russ Diamond, the Lebanon County leader of the anti-pay raise group, Operation Clean Sweep.

From the NEPA (NE Pa.) News, dated 10/31/05:
In "retention" elections like those on Nov. 8 that feature Nigro and Newman, voters do not have the option of replacing the judges, only an up-or-down decision on whether to grant them another term. Voter turnout is typically small for these off-year elections and no statewide judge in Pennsylvania has ever been ousted in a retention vote.

But this year, public furor lingers over the Legislature's handling of a pay-raise law that generously boosted salaries for its members, as well as judges, top executive-branch officials and district attorneys. With no legislative election campaigns until next year, citizen groups and other critics of the law have filled the political void with an ad hoc campaign to oust Nigro and Newman. * * *

If voters refuse to retain Nigro and Newman, they would finish their present terms, which end in January. Gov. Ed Rendell would appoint temporary successors and they would serve through the 2007 judicial elections, when voters would elect new justices to full 10-year terms, said State Department spokesman Brian McDonald.

Nigro's campaign raised more than $350,000 through mid-September _ mostly from lawyers _ in what he described as a safeguard against unexpected attacks. He has said he will return all the money to contributors if it is not needed. On Friday, he said he had not aired any radio or TV ads of his own and had no immediate plans to do so.

Pensylvania's judicial selection process differs from Indiana's. In Pennsylvania, all judges initially are elected on a partisan ballot, and thereafter on a non-partisan retention ballot; whereas in Indiana our appellate judges and justices are appointed by the Governor from a slate proposed by a judicial nominating commission. After two years, they are subject to a "yes/no" vote from the voters, and again every 10 years thereafter.

My recent Res Gestae column on the Indiana retention vote is discussed in this 10/21/05 ILB entry, and this 10/23/05 entry.
___________
*It actually is not clear whether the Pennsylvania Supreme Court has been asked to rule yet -- as I read more, it looks like they haven't. Here, from a columnist in the Pittsburgh Tribune:

At 2 a.m. Friday, July 7, the General Assembly passed a pay-raise bill covering the three branches of government without debate or public input. Salaries were raised up to 54 percent and, adding insult to injury, the pay-jacking bill allowed legislators to claim their raises as "unvouchered expenses." That sneaks around the state Constitution prohibition of legislators giving themselves instant raises before standing for re-election.

Speaking of sneaking around without public input, the Legislature's ringleaders along with executive and judicial branch representatives were involved in many backroom talks -- public not invited. And since so-called informal meetings produce no paper trail, Pennsylvanians are assuming the worst about the looters.

House Speaker John Perzel had told this column that Chief Justice Cappy was involved in "a lot" of the secret meetings. He refused to say how many. Mr. Cappy and his fellow justices surely will be asked to rule on the constitutionality of the bill that includes pay raises for them. Could Cappy have a more troubling ethical dilemma?

And here, from today's Scranton Times-Tribune:
In perhaps the most shocking political development since Dewey defeated Truman, Pennsylvania legislators grudgingly acknowledged this week that the public has a say in how it’s governed. * * *

In what newspapers statewide described as “a stunning reversal,” “a shocking turnaround” and “a desperate attempt to avoid being voted out and having to get real jobs,” the state House and Senate passed bills that would repeal the extraordinarily outrageous pay raises legislators granted themselves in the wee hours of July 7.

The raises, which also increased the salaries of Gov. Ed Rendell, D-Cheesesteak, his staff and some 1,000 judges, were greeted with the kind of public backlash usually reserved for tax hikes, sex scandals and Michael Jackson. * * *

Mr. Rendell promised to sign the repeal bill, as soon as legislators produce a version with no loopholes. Most observers expect that to happen by early next week, or 2010.

For constitutional reasons no one understands, the Senate version of the repeal would leave pay hikes for judges intact, but the rollback of the remaining raises can only be seen as a victory for a relentless, vocal public, who, due to high unemployment and other factors, had lots of free time to devote to the cause.

Posted by Marcia Oddi on Saturday, November 05, 2005
Posted to Indiana Courts

Ind. Gov't. - Another look at the Democrats plan to access public records

The Fort Wayne Journal Gazette has an editorial today, titled "Open Government," that praises the state Democratic Party's Project Open Government, wherein "The party will submit public records requests to state agencies and monitor the state response." Some quotes:

Nobody’s being snowed. There is little doubt that there is more to it than an “initiative aimed at helping Gov. Mitch Daniels keep his campaign promise to improve public access to state records” as the party’s press release states. But Daniels’ representatives are suckers for taking the bait. The only appropriate response to any request that falls under the state’s open records laws is to politely and quickly fulfill that request.

“We don’t think the people of Indiana will appreciate the state Democratic Party harassing the governor with records requests,” Jankowski says.

When asked about the allegation that the effort was really a political ploy meant to bombard state government with frivolous and nuisance requests for records, Jennifer Wagner, spokeswoman for the state Democratic Party, said, “We’re trying to avoid that at all costs. We’re doing this with the best intention and hope it wouldn’t be looked at in any other way.”

The ILB's first reaction to "Project Open Government" was "file this under bad ideas." Now that the first five requests have been posted at the Demo's web site, perhaps another look may be warranted.

Posted by Marcia Oddi on Saturday, November 05, 2005
Posted to Indiana Government

Environment - NW Ind. air; nerve gas; endangered species; ag park

NW Indiana Air. Both the Munster (NW Indiana) Times and the Gary Post-Tribune report today that Gov. Daniels has "announced plans to petition the federal government to change the ground-level ozone air quality designation for Lake and Porter counties to attainment, which means the area is meeting Clean Air Act standards." The NWI story contiues:

Indiana's petition to be considered separately from the Chicago metro area for purposes of Clean Air Act attainment will include a long-term maintenance plan to ensure the area meets national standards for ground-level ozone in the years to come. The public will be able to view and comment on the state's plan once it is developed and before it is submitted to the EPA in about a month.
Nerve Gas. Troubles at Newport. Tammy Webber of the Indianapolis Star writes, in a lengthy story headlined "VX destruction shaky: Problems at plant delaying process to eliminate nerve agent," that:
A $533 million western Indiana plant built to destroy the world's deadliest chemical has been idle nearly half of the time since it began operations six months ago, plagued by equipment and other unforeseen problems.

The latest problem at the U.S. Army's Newport Chemical Depot in Vermillion County, near the Illinois border, occurred Oct. 29 when an as-yet-undiagnosed problem caused a spill of almost 500 gallons of the caustic chemical byproduct created during destruction of the Cold War-era nerve agent VX.

The spill, the plant's third, forced officials to halt operations for the second time since the process began May 5. Work also had come to a stop most of the summer, triggered by a June 10 spill blamed on faulty valves. The facility remained closed after a second, smaller spill in July during a testing procedure and the discovery that the byproduct was more flammable than thought. Operations resumed in late August, after the valves were replaced and officials learned how to reduce the byproduct's flammability

Meanwhile, the Terre Haute Tribune Star reported yesterday that "Contractor employees threaten to leave job at Newport." The story by Patricia Pastore begins:
Modifications in a contract between the Army and Parsons, the contractor the Army hired to build and operate the Newport Chemical Agent Disposal Facility, have employees threatening to walk off the job.

These are highly trained employees who are responsible for operating and maintaining the plant that destroys the deadly nerve agent VX, said Scott Rowden, environmental director for Parsons Technologies Inc. * * *

The destruction of VX won't be halted, however, if those members of the work force leave, said Col. Jesse L. Barber, project manager for the Army's Alternative Technologies and Approaches Project.

Endangered species. "Endangered Species Act in cross hairs" is the headline to a lengthy story today in the Chicago Tribune.

Ag park. I commented on Kemplog.com that I'd like to actually see a copy of the proposed/now final zoning ordinance for the Delaware County Agricultural Bio-Enterprise Zone. Here it is, via the Indiana Pork Advocacy Commission website. And here it is, via the Delaware County website.

Posted by Marcia Oddi on Saturday, November 05, 2005
Posted to Environment

Ind. Law - Justice Willis Van Devanter featured in Marion paper today

The Columbia Encyclopedia has this entry for Willis Van Devanter:

1859–1941, American jurist, Associate Justice of the U.S. Supreme Court (1910–37), b. Marion, Ind. He practiced law (1881–84) in Indiana and, after he removed to Wyoming, became (1889) chief justice of the Wyoming supreme court. He had a prominent role in Republican party politics and served as Assistant U.S. Attorney General (1897–1903) and U.S. circuit court judge (1905–10). Appointed to the Supreme Court by President Taft, Van Devanter was one of the quartet of conservative justices who opposed most of the New Deal legislation.
The Supreme Court Historical Society has this entry, along with a portrait:
WILLIS VAN DEVANTER was born on April 17, 1859, in Marion, Indiana. He received a law degree from the University of Cincinnati Law School in 1881 and joined his father’s law firm in Marion. Three years later, Van Devanter moved to Cheyenne, Wyoming Territory, and established his own practice. Van Devanter served as a member of the commission that revised the statutes of the Wyoming Territory in 1886. In 1887, he served as City Attorney of Cheyenne, and in the following year he was elected to the Territorial Legislature. Van Devanter was only thirty years old when, in 1889, President Benjamin Harrison appointed him Chief Justice of the Wyoming Territorial Supreme Court. After Wyoming was admitted to the Union as the forty-fourth State in 1890, Van Devanter resigned as Chief Justice and returned to private practice. In 1897, President William McKinley appointed him an Assistant Attorney General, assigned to the Interior Department. President Theodore Roosevelt appointed him to the United States Court of Appeals for the Eighth Circuit in 1903. President William H. Taft nominated Van Devanter to the Supreme Court of the United States on December 12, 1910. The Senate confirmed the appointment three days later. Van Devanter served on the Supreme Court for twenty-six years. He retired on June 2, 1937, and died on February 8, 1941, at the age of eighty-one.
Today's Marion Chronicle Tribune has a feature story on Justice Van Devanter, written by David Penticuff. A quote:
"Mr. Justice Van Devanter is a man who plays an important role in the history of the court, though you can't find it adequately reflected in the opinions written by him," [Justice Felix] Frankfurter said, "because he wrote so few. But Van Devanter was a man of great experience. He'd been chief justice of Wyoming. He was then made a circuit judge, a United States circuit judge and a member of the Supreme Court in 1910. He had a clear, lucid mind, the mind, should I say, of a great architect. He was a beautiful draftsman and an inventor of legal techniques who did much to bring about the reforms, which, of course, were effectively accomplished by Taft as chief justice."

Posted by Marcia Oddi on Saturday, November 05, 2005
Posted to Indiana Law

Ind. Law - Ex-state DNR worker admits fraud

"Ex-state worker admits fraud: Inspector says he created fake records for Illinois oil-well contractor" is the headline to a complicated story reported today in the Evansville Courier& Press by Maureen Hayden. Some quotes:

A former state employee said Friday he paid more than $100,000 in kickbacks to a former owner of an environmental company hired to clean up leaking oil wells in western Vanderburgh County.

Former Department of Natural Resources inspector Donald G. Veatch, 54, of Francisco, Ind., admitted in court Friday that he created bogus documents to hide that he was funneling federal funds to an oil-well company that he owned at the same time he was employed as an oil and gas inspector for the state.

Veatch said the scheme also involved falsifying inspection records for Mount Carmel, Ill., oil-well contractor Carl F. Hanisch.

Hanisch pleaded guilty Friday to federal charges of falsifying documents regarding oil-well cleanup projects in western Vanderburgh County. The charges, detailed in court documents and in testimony in U.S. District Court on Friday, involve 39 abandoned oil wells and six tank batteries along Bayou Creek - which feeds into the Ohio River - and 53 abandoned oil wells and seven tank batteries on property now owned by Jacob's Village, a residential center for the developmentally disabled. * * *

In court, Veatch did not name the person who he said received the money. [Assistant U.S. Attorney Steven DeBrota] declined to name the person, saying he remains under investigation. But state environmental regulators said Friday that one of the persons still under investigation is Tim Boisture, who is a former project manager and part-owner of Environmental Consulting & Engineering Co., and founder of Subcon LLC.

Boisture, who now lives in Sacramento, Ky., said he created Subcon LLC several years ago. He said he knew Veatch but never got any money from him. When asked about court documents detailing payments from Veatch's oil-well company, MJM Co., to Subcon LLC, Boisture said he had no knowledge of the payments. "I'd have to say I have no other comment until I can look at the documents involved and review all the facts," he said. Boisture said he had not been contacted by federal prosecutors about the case.

DeBrota said the investigation, spearheaded by a joint federal and state Environmental Task Force is ongoing. Task force members include the U.S. Environmental Protection Agency, the FBI, the Internal Revenue Service, and the DNR's law enforcement division.

The story includes links to a 7-page outline of the "false plugging and abandonment reports scheme," and to the 8-page "Information" (indictment), dated 11/2/05. Both are scanned documents.

Posted by Marcia Oddi on Saturday, November 05, 2005
Posted to Indiana Law

Ind. Decisions - More on Lawrence water utility contract

Today's Indianapolis Star has an extended version of Kevin Corcoran's report yesterday. Today's story is headlined "Lawrence case may go straight to top court: Judge and litigants in utility dispute will ask state's justices to decide if ruling was right," and reports that:

The judge in the Lawrence water utility dispute said Friday he would do everything he could to persuade the Indiana Supreme Court to take the case directly, bypassing the Court of Appeals. "It would seem to me the finality of that order is paramount," Judge David J. Dreyer of Marion Superior Court told lawyers for the city and the utility. * * * Meanwhile, Dreyer has halted all other action in the city's lawsuit against Lawrence Utilities. * * *

Lawyers for the city asked Dreyer on Friday to appoint a receiver to operate the utility until the city can take control of the assets. Lawyer Gary Price said this should be done to protect the city's waterworks assets, which have a book value of about $50 million.

But Dreyer said he was not sure that removing control from Lawrence Utilities before an appellate court rules makes sense. "If it's upheld, that answers a lot of questions," Dreyer said. "What if we get a ruling, and it's reversed?"

The company's Chicago lawyer, William N. Howard, praised the judge's decision to freeze action.

Dreyer said he has reservations about the remainder of the lawsuit, which seeks to force a trial on the water rates. Dreyer said those rates were set by the City Council, and he isn't sure what a court can do about them. He suggested the city's attorneys clarify their legal objectives. "I have legitimate concerns, I think, about what's next," Dreyer told the city's attorneys. "What you're describing sounds like a drawn-out, protracted procedure that could take years."

But Dreyer said he was willing to consider a motion by city officials that would force the water company's owners to make public more financial information. City officials say they need court-ordered discovery to penetrate the secrecy surrounding the company's parent, Integrated Resources LLC, and other related companies doing business with Lawrence Utilities.

See yesterday's ILB entry here, with links to earlier entries, including to Judge Dreyer's ruling. And don't miss this Star story from 10/21/04, which has links to nearly a dozen documents relvant to this dispute.

Posted by Marcia Oddi on Saturday, November 05, 2005
Posted to Ind. Trial Ct. Decisions

Friday, November 04, 2005

Ind. Law - On a lighter note

"Lawyer/musician releases album" is the title of a story today by David Johnson in the Goshen News. Some quotes:

By day, Goshen attorney Nat Jordan works at Yoder, Ainlay, Ulmer and Buckingham as a civil trial lawyer attired in a suit and tie. But at night, he is a musician who just completed his second album, “The Everywhere Tonic.”

He recently said, “I’ve been told lawyers should be multi-dimensional.”

The album “is a lyrics-driven rock ’n’ roll album blending acoustic and electric guitars with drums, organs, pianos, synthesizers and harmonic vocals,” Jordan said in a press release. * * *

Nat Jordan is accompanied on “Everyweather Tonic” by his boyhood friend Jason Poff on drums, and his sister Mary Rose Jordan, who is currently working on a master’s degree in piano performance at Indiana University.

Posted by Marcia Oddi on Friday, November 04, 2005
Posted to Indiana Law

Ind. Decisions - More on 7th Circuit upholds Judge Barker in judicial bias ruling

The Fort Wayne News-Sentinel puts it succinctly today in an "editorial brief":

A case of bad judgment

A tip for judges: If you think you have any potential at all for a conflict of interest, go ahead and recuse yourself. Otherwise, you could let some bad people get away. Posey County Judge James Redwine stayed on the bench for a murder trail against James Patrick Harrison, even though one of the victims in the case, shortly before her death, had made some wild, unsubstantiated charges against the judge and other public officials for drug trafficking. So a federal appeals court has overturned Harrison’s conviction and ordered a new trial. This is James Patrick Harrison: In the case of the overturned verdict, he was charged with killing a woman and setting her house on fire, which also killed her two children. That meant he had been charged with killing five people in three incidents over a period of 17 years. His first conviction in 1971, for involuntary manslaughter, got him a suspended sentence. On his second conviction in 1973, for a second-degree murder charge, he served less than 15 years.

Or, as Judge Sara Evans Barker concluded her 1/2004 decision that the 7th Circuit affirmed last week:
Any grant of habeas relief is no small matter. When premised on a finding of judicial bias, it is an especially sobering matter. Given the unequivocal directives of the Supreme Court where judicial bias results in structural error permeating the entire trial process, we have no alternative but to order a new trial. Harrison’s habeas petition is GRANTED. The State of Indiana shall set a new trial date within sixty (60) days of the date of this Entry at which time the State can retry its case against Harrison before an impartial judge. If the state chooses
not to retry Harrison, it must forthwith release him from custody by which he is detained pursuant to the Judgment on the Posey Circuit Court in No. 65C01-9104-CF-0008. * * *

IT IS NOW THEREFORE ADJUDGED that James P. Harrison’s petition for a writ of
habeas corpus is granted. The State of Indiana shall release Harrison from any and all further confinement as a result of proceedings in the Posey Circuit Court, styled State of Indiana v. James P. Harrison, No. 65C01-9104-CF-0008, within sixty (60) days unless within that time a new trial is set before an impartial judge.

Posted by Marcia Oddi on Friday, November 04, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending November 4, 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 November 4, 2005. There are 32 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, November 04, 2005
Posted to NFP Lists

Ind. Law - More on Crown Point "big box" ordinance; South Bend looks at in-traffic solicitations

"Zoning fix gives council final say" is the headline to a story today in the Gary Post-Tribune. Some quotes:


CROWN POINT — The City Council wants to make sure all developers realize they’ll have to convince the council before a big-box development comes to town.

A proposed change to the city’s zoning ordinance wouldn’t have given the City Council the final say. So now the council has presented an alternate proposal that plugs the hole.

Under the newest proposed zoning change to B1, B2 and B3 Business Districts, any structure more than 75,000 square feet would require a “special use” zoning designation.

Planning and Building Director Curt Graves said the latest proposal was presented to him on Monday after the council realized its first proposed change would require only a zoning variance from the Board of Zoning Appeals for developers wanting to build such a structure.

“The BZA is the final authority for a variance,” Graves said. “On special uses, the council is the final authority.”

See also this ILB entry from 11/2/05.

"South Bend proposal puts brakes on solicitations: Some groups defend raising funds at intersections" is the headline to a story today in the South Bend Tribune. Some quotes:

Groups that have chosen to play in traffic to raise money or hand out fliers may soon be told to stay on the sidewalk.

City attorneys Chuck Leone and Ann-Carol Nash are working on an ordinance prohibiting people from stepping into traffic at city intersections to solicit donations, hand out literature or conduct fundraisers.

Nash presented the idea to the Common Council during committee meetings Monday. Nash said she wanted to give the council time to think about the issue and get feedback from local groups. There is no timeline set for when the proposal would appear before the council.

"I don't want to rush it, " Nash said. "I want everyone who might be affected by it to be heard."

The ordinance would become a separate section under the streets and traffic safety code. During the meeting Monday, Gary Gilot, public works director said the board of public works stopped issuing permits for traffic fundraisers since he has been director. With no law prohibiting it or formal permit process, it's also difficult to tell the real fundraisers from the frauds.

"I've gotten a lot of complaints from police and the driving public," Nash said.

But there is concern that the ordinance would hurt the legitimate fundraising efforts of local groups. Nash said the proposed ordinance is meant to keep streets safe for pedestrians and motorists, not to deter people from raising money for good causes.

Posted by Marcia Oddi on Friday, November 04, 2005
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending November 4, 2005

Here is the Indiana Supreme Court's transfer list for the week ending November 4, 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, November 04, 2005
Posted to Indiana Transfer Lists

Ind. Decisions - More on Lawrence water utility contract

The Indianapolis Star website is reporting this morning, in a story by Kevin Cocrcoran headlined "State supreme court asked to rule on Lawrence utility," that:

Lawrence's private water company and city officials agreed today to ask the Indiana Supreme Court to quickly determine whether a judge's ruling that would give day-to-day control of the city's water and sewer utilities to Mayor Deborah Cantwell's administration was correct. * * *

During a meeting in his courtroom this morning, Dreyer said he would do everything he could to persuade the high court to take the case. "It would seem to me the finality of that order is paramount," he told attorneys for the city and the water company. "That issue is the driver." Meanwhile, Dreyer has halted all other action in the case.

See earlier ILB entries at: 11/3/05 and 11/2/05.

Posted by Marcia Oddi on Friday, November 04, 2005
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Supreme Court rules on billboard dispute; finds inmate's complaint "unreasonable"

Apparently the Court's website is being updated twice a day now, as I've just spotted two Supreme Court opinions that must have been posted late yesterday.

In Metropolitan Development Commission of Marion Co., et al v. Pinnacle Media, LLC, Justice Sullivan writes:

Pinnacle Media, LLC, seeks a declaration that a change in the zoning ordinance of the City of Indianapolis concerning billboard location permits is not applicable to its plan to erect 10 billboards in Indianapolis. Because no construction or other work that gave Pinnacle a vested interest in the billboard project had begun on the billboards at the time of the ordinance change, the ordinance change did apply to the 10 billboards. * * *

The question of whether Pinnacle’s 10 billboards are subject to the 2000 zoning ordinance amendment implicates two disparate lines of Indiana cases. Both lines employ the term “vested rights” and generally stand for the proposition that a person’s “vested rights” are protected against retroactive application of a change in law. But each line takes a quite different approach to defining or determining when a “vested right” exists, and these approaches can lead to different results. * * *

Pinnacle argues adamantly that this is not a nonconforming use case for which Lutz is precedent but a permit application case controlled by Knutson. While for reasons we will set forth in a moment we think this is a nonconforming use case, we also think, at least in respect of building permits, the Knutson rule should be revisited. * * *

Regardless of Knutson’s viability, we do not believe its rule is available to Pinnacle in this case. While Pinnacle argues vehemently that this is not a nonconforming use case, we believe that it is properly analyzed under Lutz’s principles. When Pinnacle set out to erect the 10 (initially 15) billboards, there was no location permit required by the City. This is exactly the position the developer in Lutz was in when it started out to de-velop the gasoline service station. The question there—as we find it to be here—was whether, at the time of the change in the zoning ordinance, construction had proceeded on the project to the point that the developer had a vested interest. As discussed, the Court held that the construction had not. Lutz, 230 Ind. at 81, 101 N.E.2d at 190.

In this case, no construction of any kind had proceeded on the 10 billboards as of April 26, 2000, the date the ordinance change was officially proposed, or even July 10, 2000, the date it was enacted. Pinnacle does not present us with any argument that it made construction expenditures before the enactment of the zoning ordinance change. Nor could it. It was not until 11 months later, June 18, 2001, that Pinnacle received the separate approvals required by the State.

Pinnacle argues that its filing of applications for permits with the State on April 19, 2000, immunized it from the City’s zoning change but we see no basis in law or logic for this proposition. * * *

Most telling in this respect is the fact that regardless of what the City’s billboard location regulation was, or even whether it had one, Pinnacle would still have been re-quired to obtain State approval for its project. State approval was in addition to, and not a substitute for, local approval. That being so, Pinnacle cannot use its compliance with State requirements as a substitute for compliance with local requirements.

Conclusion. Having granted transfer, Indiana Appellate Rule 58(A), we reverse the judgment of the trial court as to its holding that the zoning ordinance was inapplicable to the 10 permits and remand this matter to the trial court with instructions to grant the City’s mo-tion for summary judgment. Because we find that the zoning ordinance was applicable, we also reverse the trial court’s award to Pinnacle of attorney fees.

In Larriante Sumbry v. William Boklund, a per curiam ruling, the Court writes:
Larriante Sumbry filed a civil tort action against LaPorte Superior Court Judge William Boklund. The trial court granted Bokland’s motion to dismiss for failure to state a claim upon which relief could be granted, but declined to find that Sumbry’s complaint was “frivolous,
unreasonable or groundless” within the meaning of Indiana Code section 35-50-6-5(a)(4) (Supp. 2004). The Indiana Court of Appeals affirmed in an unpublished decision, Sumbry v. Boklund, No. 46A04-0404-CV-237 (Ind. Ct. App. Feb. 9, 2005), and Sumbry petitioned to transfer jurisdiction of the case to this Court. We grant transfer to address whether his complaint was frivolous, unreasonable or groundless. See Ind. Appellate Rule 58(A) (stating that “[u]pon the grant of transfer, the Supreme Court shall have jurisdiction over the appeal and all issues as if originally filed in the Supreme Court.”). We hold that it was unreasonable. * * *

The Court of Appeals has noted Sumbry’s “proclivity for filing frivolous and vexatious lawsuits.” Id. at 461 (quoting Sumbry v. Hammond, No. 45A04-0305-CV-257, slip op. at 5 (Ind. Ct. App. Apr. 19, 2004) (unpublished mem. decision), trans. denied). Sumbry’s reputation even extends to other jurisdictions. See, e.g., Sumbry v. Davis, No. 05-3028, unpublished order (10th Cir. June 2, 2005) (stating “Mr. Sumbry is a promiscuous as well as a frivolous filer”). Every resource that courts have devoted to Sumbry’s numerous civil proceedings is a resource denied to other legitimate cases with good-faith litigants.

Under the circumstances of this case, we conclude that Sumbry’s complaint against Boklund was unreasonable such that he is subject to being deprived of earned credit time under Indiana Code section 35-50-6-5(a)(4). See Parks, 783 N.E.2d at 725-26; Martin v. Heffelfinger, 744 N.E.2d 555, 560 (Ind. Ct. App. 2001).

Posted by Marcia Oddi on Friday, November 04, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Econ. Dev. - Ag park; lots of corn

"Ag park approved at emotional meeting" is the headline to this story today in the Muncie Star-Press.

"Corn, corn everywhere and not a spot to put it: Monster harvests, New Orleans problems lead to storage problem," is the headline to this story today in the Munster (NW Indiana) Times. Don't miss this photo. The caption:

Corn is piled high near the Aylesworth Farm Service Center on Thursday as the elevator has run out of storage space for grain. "You might see large piles outside on asphalt or concrete. Others are just covered with tarps," Purdue University agricultural economist Chris Hurt said.

Posted by Marcia Oddi on Friday, November 04, 2005
Posted to Environment | Indiana economic development

Law - Eminent domain in the news [Updated]

"Judge says tire shop will stay put" is the headline to a story today in the Gary Post-Tribune. Some quotes:

LAKE STATION — Lake County Judge Lorenzo Arredondo has put the brakes on the county library board’s attempt to take a Lake Station tire shop’s property. The judge dismissed the condemnation lawsuit the library board brought against Lake Tire Co. owner Len Hedinger to seize property he owns at 1901 Central Ave. The court ruling was announced Wednesday.

Library officials claimed Hedinger’s property was needed to build a $3 million library that would serve residents of both Lake Station and New Chicago. But Arredondo agreed with Magistrate Christina Miller, who found that the library branch could be built without Hedinger’s property. * * *

Miller also wrote that library officials failed to disclose the true intended use of Hedinger’s property. Library officials planned to transfer Hedinger’s land to the city of Lake Station, which owns the adjacent property and hopes to build a municipal complex on it one day.

In a deal reached by Mayor Shirley Wadding, the municipal complex would also include the proposed New Chicago/Lake Station library branch. Architectural drawings provided by the library show that only a fraction of the library’s parking lot would be on Hedinger’s property. The rest of Hedinger’s property would be used by the city for the proposed municipal complex.

But the absence of a binding contract between the city and library board made the goal of a municipal multiple-purpose building speculative at best, Miller said.

"Judge blocks Chicago from buying, razing homes for O'Hare project" is the headline to a story today in the Munster (NW Indiana) Times. Some quotes:
CHICAGO | The city's planned expansion of O'Hare International Airport hit another snag Thursday when a federal judge issued a temporary restraining order that bars the city from bulldozing homes and businesses and relocating graves.

However, construction work already underway on the $15 billion project -- including work begun last month on a new runway -- can continue, city officials said.

U.S. District Judge David Coar's order follows a request by cemetery owners and the suburbs of Elk Grove Village and Bensenville to halt work in areas where the homes, businesses and graves are located until he considers the opponents' request to stop the project.

The 10-day restraining order applies only to the affected area, where the city plans to remove 2,600 residents, 200 businesses and 1,300 graves to build another runway. The judge's ruling does not affect that phase of the project because that work is not scheduled to begin until late next year at the earliest, said project spokesman Roderick Drew.

What about the Indiana General Assembly's interim legislative Eminent Domain Study Committee. It had its final meeting Oct. 28th, but has not posted its recommendations. Fortunately, Rep. Ryan Dvorak has made the recommendations available at his website.

[Updated] The AP is reporting that:

A congressional vote to restrain local governments from seizing private property for commercial development likely will bolster Statehouse efforts to rein in similar practices in Indiana, a state lawmaker said.

The U.S. House voted 376-38 Thursday to pass a bill that would withhold federal money from state and local governments that use powers of eminent domain to force businesses and homeowners to give up their property for commercial uses.

"I think it makes it a whole lot easier in the state," State Rep. David Wolkins, R-Winona Lake, said, referring to the congressional vote's impact on state efforts to regulate property seizures. Indiana's representatives in the House voted 7-1 for passage. Rep. Steve Buyer, R-Ind., did not vote.

The bill, HR 4128, the "Private Property Rights Protection Act of 2005," is available here.

Posted by Marcia Oddi on Friday, November 04, 2005
Posted to General Law Related

Ind. Decisions - Decision in one federal trial over whether communities have right to restrict new medical centers

"Hospital expansion OK: Court ruling allows St. Francis to resume its plans to build in Mooresville" is the headline to a story today by Josh Duke in the Business Section of the Indianapolis Star. Some quotes:

A federal judge is allowing St. Francis Hospital to resume its expansion plans in Mooresville and delivered a statewide message that counties don't have the authority to prohibit the construction of hospitals. U.S. District Judge David F. Hamilton ruled that state law grants the Indiana State Department of Health -- not local government -- the power to regulate and license hospitals in the state.

The ruling, handed down Wednesday, could affect the 37 counties that run county-supported hospitals. Those hospitals, which often serve as the safety net in accepting all patients regardless of their ability to pay, have complained in recent years about being at a competitive disadvantage with for-profit, specialty-service hospitals that take away better-insured patients.

St. Francis went to court after leaders from Morgan County, southwest of Indianapolis, imposed a temporary moratorium on the construction of medical facilities within its borders as a way of ensuring the financial health of its county-run hospital, Morgan Hospital & Medical Center in Martinsville. * * *

At least four other Indiana counties have considered or adopted similar restrictions. Those counties have chosen to either prevent construction through their moratoriums or have forced health-care businesses to obtain local approval through a "certificate of need" process before they begin construction.

Another hearing Wednesday by a different federal judge involved a similar lawsuit against Clark and Floyd counties. A decision in that case could come in a few weeks, which gives those counties some hope despite Hamilton's decision. In the hearing, Judge Sarah Evans Barker, while acknowledging she was aware of Hamilton's ruling, chose to study it further before making her decision.

Inside Indiana Business has the St. Francis Hospital-Mooresville press release.

Meanwhile, the Louisville Courier Journal has coverage of the case involving Clark and Floyd counties pending before Judge Barker. Some quotes from the story by Alex Davis:

INDIANAPOLIS -- Hospital officials in Clark and Floyd counties formed a conspiracy to thwart private competition, an attorney argued yesterday in federal court. At the urging of the hospitals, both counties passed moratoriums earlier this year banning the construction of private medical facilities.

Attorney Daniel Warncke contended that those moratoriums are illegal because they violate antitrust laws and overstep the zoning authority of the two counties.

Warncke represents two groups of Kentucky-based investors who want to build hospitals in Southern Indiana. The two groups sued the counties June 13 in U.S. District Court in New Albany, challenging the moratoriums.

During a two-hour hearing yesterday before U.S. District Judge Sarah Evans Barker, Warncke said there was "evidence of communication" between the two hospitals that amounted to a conspiracy. He did not elaborate.

Attorneys for the counties argued, however, that anything the hospitals did regarding the moratoriums had no direct bearing on the counties' decisions to enact them. * * *

Barker said she would rule shortly after Thanksgiving on whether the moratoriums can remain in place.

The outcome of the suit could bring significant changes to the medical-care landscape in Southern Indiana. If the investors prevail, the number of hospitals in Clark and Floyd could grow from three to five in the next couple of years, and possibly even more in the future.

Clark Memorial and Floyd Memorial, both publicly owned, now operate along with the private Medical Center of Southern Indiana in Charlestown as the only three hospitals in Clark and Floyd counties. * * *

Attorneys for the counties argued yesterday that the moratoriums were simply a way to assess local medical needs and thus prepare for the future. Task forces in both counties have been appointed to consider those issues, they said, and the bans could be lifted at any time, depending on the outcome of those studies.

There already may be at least one strike against the counties. It came Wednesday when a similar case in Morgan County, near Indianapolis, was decided in favor of Sisters of St. Francis Health Services Inc. Sisters of St. Francis had sued to overturn a similar moratorium enacted by the Morgan County commissioners. Warncke predicted that Wednesday's ruling, by U.S. District Judge David Hamilton, would have a "positive impact" on Barker's decision in a few weeks.

But the lawyers for Clark and Floyd counties said that there are many differences between the two cases and that the Morgan County decision could still be appealed. * * *

Floyd's moratorium was approved in March and lasts one year. Clark's started in February and lasts two years. Some municipal officials also have grumbled about the moratoriums, suggesting they infringe on the zoning rights of cities and towns.

Here are earlier ILB entries on the issue from 10/6/05 and 10/10/05, plus a 10/22/05 entry on a proposed Chicago-area hospital merger.

Judge Hamilton's opinion in Sisters of St. Francis v. Morgan County (SD Ind., 11/2/05) begins:

In the past, the State of Indiana required state government approval, in the form of what was often called a certificate of need, before a new hospital could be built or an existing hospital could be substantially expanded. The state repealed that requirement in 1987 and allowed market forces of supply and demand to replace the certificate of need regulatory process. Pub. L. No. 194-1987, § 9, 1987 Ind. Acts 2270 (repealing Ind. Code §§ 16-1-3.7-1 to -12).

The central issue in this case is whether a county government in Indiana may now impose on its own a new requirement for county approval of hospital construction or expansion. Under a federal statute protecting religious freedom, a more specific question is whether such a county requirement may be applied to a hospital operated by a religious order in furtherance of its mission to heal the sick. The case was tried to the court on October 4 and 5, 2005 on an expedited schedule with the agreement of the parties. The court now states its findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure. Substance rather than the court’s label shall govern whether a matter is treated as a finding of fact or a conclusion of law. As explained below, the court finds that the new Morgan County ordinance imposing first a limited moratorium and then a county approval requirement on hospital construction in the county is preempted by Indiana’s Home Rule Act. The court also finds that the ordinance is not preempted by the federal Sherman Act, does not at least on its face violate plaintiff’s rights under the federal Religious Land Use and Institutionalized Persons Act known as RLUIPA, and does not violate Indiana zoning laws.

I have uploaded a copy of the 53-page decision; access it here.

Posted by Marcia Oddi on Friday, November 04, 2005
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Intelligent editorial

Some quotes from an editorial today in the Fort Wayne Journal Gazette:

Not to be outdone by a Senate colleague who tried to limit reproductive rights to happily married couples, Indiana House Republicans are pursuing their own legislative initiative destined to divide Hoosiers, tarnish the state’s reputation and draw attention away from important matters such as property tax relief. * * *

Indiana can’t afford to have its academic standards compromised by unscientific views. A profile released this week at the Indiana Technology Summit shows the state fell behind or was stagnant on 14 of 23 measures of progress in creating a technology-based economy. Adopting science standards that include instruction in intelligent design – ideas rejected by mainstream scientists – would seal the state’s backwater reputation.

Posted by Marcia Oddi on Friday, November 04, 2005
Posted to Indiana Government

Thursday, November 03, 2005

Courts - Hamilton County Ohio Municipal Court judicial candidates answer questions

The Cincinnati Enquirer has an editorial piece today where it presents the Hamilton County Municipal Court judicial candidates' answers to a question posed by the paper. The diversity of answers is particularly interesting. Here is the paper's lead-in:

In most years, incumbent judges in Hamilton County run unopposed, giving voters no say in who will serve on the bench. But not this year. There are contests in six of the nine Hamilton County Municipal Court races on next Tuesday's ballot. Five Democrats are challenging Republican incumbents, and one Republican hopes to knock off an incumbent Democrat.

This competition is refreshing change, and we encourage voters to learn more about the candidates in order to make informed choices. To help, we've asked the candidates to respond to the following question:

What, if anything, do you believe is the biggest impediment to the fair and efficient application of justice in Hamilton County, and how would you address it?

Answers to the first part of the question vary and include "the need for a new jail," "the sheer volume of cases," "drugs of abuse and mental illness," "the time it takes for cases to come to trial," "the rushed, assembly-line approach most Municipal Court judges use to process their 30-40 daily cases," "the dramatic rise of crime in our community," "lack of jail space in the Hamilton County Justice Center," "the incredible increase in caseload," "jail overcrowding," "the weight of large caseloads." One answer was non-responsive.

Two answers I've singled out, one from District 3, and one from District 4:

Fanon A. Rucker (D) - The single biggest impediment is the failure of the courts to adequately inform citizens of its policies and bases of decisions. Citizens subjectively determine whether the "system" is fair and just, overall or in particular cases. Most of the time, the determination is based upon a limited understanding of the mechanics of court operations. I will, if elected, issue written decisions in certain cases. Written decisions let the reader actually see what testimony was believed (and why), what statute applies, what case is "on point." Once people see how the courts make decisions, citizens will be in a better position to assess whether justice has been applied fairly and efficiently, and it will encourage broader trust in the system.

Jerry Metz (D) - The limited experience of some appointed judges interferes significantly. I've learned that judges must be mindful of the impact of their decisions on all the people. In our system of justice, each decision serves as guide and precedent for the next. Good judges build the public trust by reasoned and impartial decisions. I will decide cases impartially, according to the evidence. I will apply the law as established by statute, by our state and federal constitutions, and by precedent. Courts should punish crime appropriately, consistent with the law. But the law must apply equally and fairly to us all. I would treat each person in court with dignity and respect.

See also this ILB entry from 10/26/05.

Posted by Marcia Oddi on Thursday, November 03, 2005
Posted to Indiana Courts

Environment - Delaware County ag park proposal; Pines transfer station

The Muncie Star-Press reports today, in a story by Seth Slabaugh:

MUNCIE - The city-county planning commission is scheduled to conduct a public hearing tonight on a controversial petition to re-zone 806 acres around the community of Shideler for an agricultural bio-enterprise park.

But if opponents get their way, the hearing will be postponed.

On Tuesday, attorney Bruce Munson, representing Citizens for Responsible Economic Development, filed a notice asking the commission to continue the hearing until after the adoption of appropriate ag-park performance standards and CAFO (concentrated animal feeding operation) regulations.

Delaware County Commissioner John Brooke has forwarded to the commission proposed zoning-ordinance amendments concerning the regulation of CAFOs and performance standards for ag parks.

"Unless action on the pending (re-zoning) application is deferred there is danger that unregulated development could proceed and become grandfathered," Munson wrote.

The attorney also reported: "In addition, there is interest on the part of owners of land elsewhere in Delaware County in applying for re-zoning to (the) agricultural bioenterprise (zone). These prospective applicants own land in an area more suitable for an AB zone than the site of the present application." * * *

A commission hearing on the ag park in September was shut down by police because the crowd - made up mostly of opponents - exceeded the capacity at city hall, which holds 261. Tonight's meeting will be at the Central High School auditorium, which seats nearly 1,000.

If the commission decides to vote on the re-zoning petition tonight, it would be in the form of either a favorable or unfavorable recommendation to county commissioners, who have final jurisdiction.

"State wants more information on transfer station: Facility is proposed for Porter-LaPorte county line" is the headline to a story today in the Munster (NW Indiana) Times . Some quotes:
Indiana Department of Environmental Management officials have asked the owner of a proposed waste transfer station on the Porter-LaPorte county line to offer more evidence for his application, according to a news release from the department.

The request for evidence came after department officials reviewed comments from a Sept. 27 public forum on the transfer station, which would take in construction debris, household waste and recyclables that will be sent to disposal facilities or landfills at the end of each day. * * *

Residents of the town of The Pines have opposed the facility because they believe the trucks will bring noise, pollution and traffic to the area. The Porter County Commissioners have refused to grant Blieden a driveway permit because they believe the waste trucks will be overweight for road, which has a 10-ton weight limit.

Posted by Marcia Oddi on Thursday, November 03, 2005
Posted to Environment

Ind. Courts - Clark County dispute between judges and County Council, involving judicial mandate, continues

"Judges, Clark still at odds on budget: County Council planning to use money courts collect" is the headline to a story today by Alex Davis in the Louisville Courier Journal. Some quotes:

A lingering financial dispute between Clark County's four elected judges and the County Council is now casting uncertainty over the county's budget for a second straight year. The two sides have been arguing since September 2004 over which of them controls hundreds of thousands of dollars a year in fees paid by participants in court-supervised probation programs.

The judges argue that the county's 2005 budget illegally relies on the fee money for $921,000 in expenses. They're also protesting next year's budget, which will use $1.1 million in fee money to keep the government operating. The judges filed a lawsuit over the matter earlier this year. If they prevail, the council could be forced to give some or all of that money back to the judges, then find the revenue needed to replace it. * * *

The suit is now scheduled to go to trial Feb. 16 in Clark Circuit Court before Elaine Brown, a special judge from Dubois County.

Similar arguments over probation fee money have surfaced in other Indiana counties in recent years. David Bottorff, executive director of the Association of Indiana Counties, said the Clark County suit could have "statewide ramifications" by producing one of the first court rulings on the matter.

Regardless of the outcome, the county's taxpayers will foot the bill for lawyers on both sides of the dispute. Legal costs previously had been estimated at $50,000, and Hollis said this week that the figure could be as much as $75,000 before the matter is resolved.

According to the story, the Supreme Court has appointed a special judge from another county, Elaine Brown, to hear the Clark County judges' Order of Mandate of Funds. This 3/5/05 Supreme Court order, re the order of mandate of Hon. Cecile A. Blau, Judge of the Clark Superior Court No. 2, appoints Hon. Chris D. Monroe, Judge of the Bartholomew Superior Court, as special judge in this matter in the Clark Superior Court No. 2. This Supreme Court order re Hon. Daniel F. Donahue, Judge of the Clark Circuit Court, also appoints Judge Monroe.

This April 4/12/05 Supreme Court order, per the order of mandate of Honorable Jerry F. Jacobi, Judge of the Clark Superior Court, appoints Judge Brown, as does this 4/27/05 Supreme Court order per the mandate order of Honorable Steven M. Fleece, Judge of the Clark Superior Court No. 3.

In this 4/27/05 order, the Supreme Court statess that "the Hon. Jerome F. Jacobi, Judge of the Clark Superior Court No. 1, and files withdrawals of his Order for Mandate of Funds, Order to Show Cause, and his Request for the Appointment of a Special Judge, all filed on or about March 10, 2005." However, today's LCJ story indicates that "Jacobi announced in April that he was withdrawing from the legal dispute because he wanted to "move forward" and save taxpayer money in a year of tight finances. But Lewis said Jacobi has now rejoined the case."

Ealier ILB stories on this Clark County dispute may be found at 2/13/05 ("Two Clark County judges' spending criticized"); 2/15/05 ("More on Clark County judges' spending issues"); and 9/9/05 ("Clark County Council restores judges' money"). See also my article, "Separation of Powers in the County Courthouse," 49 Res Gestae 2 (2005), pp. 17-19, available here.

Posted by Marcia Oddi on Thursday, November 03, 2005
Posted to Indiana Courts

Ind. Decisions - More on 7th Circuit upholds Judge Barker in trial level judical bias decision

Maureen Hayden of the Evansville Courier& Press has a followup story today to her story yesterday on the 7th Circuit's decision in Harrison v. McBride.

Today's story is headlined "Judge disputes 'bias' ruling: Posey County's James Redwine says murder defendant got fair trial." Some quotes:

A Posey County, Ind., judge is defending his decision to preside over the 1991 murder trial of James Patrick Harrison, whose death-row conviction has been overturned by a federal appeals court. Posey Circuit Judge James Redwine disputes the appeals court's ruling that his "unmistakable bias" against Harrison "infected" the proceedings and deprived Harrison of his constitutional right to a fair trial. "I had no prejudice against him,'' Redwine said Wednesday, reacting to the appeals court ruling issued late last week. "I know he got a fair trial." * * *

According to the appeals court order, Barker was "eminently correct" when she ruled Redwine had demonstrated an "unmistakable bias" against Harrison when defense attorneys alleged Redwine knew [Stacy] Forsee. Shortly before her death, the defense lawyers said, she claimed the judge was involved in illegal drug activity. Because of that allegation, the defense attorneys asked Redwine to step down. He refused.

The allegations, which involved a host of prominent politicians in Southwestern Indiana, were unsubstantiated. But defense attorneys Ronald Warrum and Thomas Swain raised the issue because they questioned Redwine's ability to rule on evidence related to Forsee's allegations. The appeals court said Redwine acted improperly when he refused to recuse himself and then conducted a pretrial hearing to dispute the drug allegations. "Indeed, Judge Redwine's active participation in the hearing and his statements on the record demonstrate precisely the bias that Mr. Harrison's counsel believed would infect the trial," the appeals court found. "Judge Redwine's fear that evidence might connect him to individuals involved in the drug trade, thereby tainting, or worse ruining, his judicial career."

The appeals court order echoes concerns raised by Barker in her 2004 ruling that overturned the conviction. Barker admonished Redwine for calling his own witness to testify during a hearing on the drug allegations, abruptly moving the trial date up by two months and refusing to allow Harrison's attorneys to raise the allegation in court without his permission. The judge also disagreed with Redwine's decision to not allow any testimony or evidence of an alibi defense.

Barker also found Redwine acted inappropriately when he refused to pay a month's worth of pay for the public defenders he appointed in the case.

On Wednesday, Redwine said he's never had the opportunity during the appeals process to defend his decision to remain on the case. All the appeals on the prosecution's side have been handled by the Indiana Attorney General's office.

Posted by Marcia Oddi on Thursday, November 03, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on Indiana hearsay/confrontation clause case to be heard by U.S. Supreme Court

Charles Wilson of the AP has a story today, appearing in several Indiana papers and the LCJ, on the confrontation clause appeals to the U.S. Supreme Court discussed here yesterday. Some quotes:

The U.S. Supreme Court will decide whether an Indiana man's rights were violated when a judge allowed prosecutors to use statements made to police officers by his wife, even though she did not testify in court.

The appeal by a Peru man convicted of domestic battery will be heard in tandem with a Washington state case involving the use of a 911-call transcript, the high court said this week.

Both cases involve the constitutional right of a defendant to confront witnesses in court. The decision to hear the cases follows a Supreme Court ruling last year that said prosecutors could not use a woman's taped statement to police to undermine her husband at trial. * * *

"If this is allowed, it means that someone can testify against someone by talking to the cops, and not appear in court and not be subject to cross-examination," said Richard D. Friedman, a University of Michigan Law School professor who is representing Hershel Hammon.

The right to confront witnesses historically has not been as strong in practice as most people believe and has been trumped by state exceptions allowing use of second-hand testimony, Friedman said.

The Indiana high court ruled that Hammon's statements were admissible under certain legal exceptions because they were made voluntarily in excitement and not intended as testimony.

It drew a distinction between such statements and those elicited by police officers during an interrogation or in an affidavit, which are clearly for use in court.

However, Friedman argued that the state court erred based on the U.S. Supreme Court's ruling last year in the case of Michael Crawford, which bolstered defendants' Sixth Amendment rights. [Crawford v. Washington]

In that case, the justices threw out Crawford's conviction in Washington because his attorneys had no opportunity to cross-examine his wife regarding a 911 tape that was played by prosecutors at his trial.

Posted by Marcia Oddi on Thursday, November 03, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on "Judge cancels Lawrence water utility contract"

"Judge throws out Lawrence water deal: Cantwell wants city to resume control of utility, cut rates" is the headline today on the front-page of the Indianapolis Star. Some quotes from today's story by Kevin Corcoran:

In public forums, Cantwell has accused water company officials of spending millions in customer money to buy lavish homes and luxury cars.

Water company officials include Michael L. Lawson, a former deputy mayor of Lawrence under [then-Mayor Thomas D. Schneider], who became company president; Mark H. Branaman, a former city engineer under Schneider who became vice president; and Micheal R. Couch, who has developed and leased property at Fort Benjamin Harrison and, under Schneider, managed construction of city projects, including the new city building.

The contract Schneider wrote gave them almost everything they needed, including a $4.84 million infusion of start-up cash, vehicles and other assets from the city. Lawrence Utilities' owners had invested $1,000 to get their company going.

The contract sparked a voter backlash that helped Cantwell defeat Schneider in November 2003.

For nearly two years, the FBI has been investigating questionable financial transactions by Schneider, including his decision to hire Lawrence Utilities. The investigation is ongoing, no charges have been filed, and it's not clear how long it will last, said Drew Northern, a supervisory special agent in the Indianapolis office.

Schneider, an ex-Marine corporal and former Indianapolis police detective, declined to comment on the ruling Wednesday from his Arizona home. He has testified in a deposition in July 2004 that when he put together the deal giving his supporters control of the city's $14 million-a-year water operations, no lawyers were present and no notes were taken.

Schneider said he had been in a hurry to protect the water utility from an outside buyer. And he trusted Lawson and Branaman, who had approached him with a plan for letting their new company take over the city's sewer and water operations. Schneider stated he had ruled out taking bids, figuring no one else could have provided such a smooth transition.

But Dreyer ruled that Indiana law is unambiguous, and that "no reasonable reading" would allow Schneider to turn over control of the utilities without bidding.

Lawrence Utilities' Chicago-based attorney, William N. Howard, said the company plans to appeal. In court, he told Dreyer the private firm has no control over the city's water rates. The proposed rate increases were written into the contract by Schneider, and the City Council, then entirely Republican, unanimously approved them in December 2001.

For more, see yesterday's ILB entry, including a link to Judge Dryer's ruling.

In addition, the ILB has located this 8/5/04 ILB entry titled "Lawrence mayor seeks to bar law firm" and this 11/20/04 ILB entry titled "More on Lawrence mayor seeks to bar law firm." The latter points to an 11/21/04 Indianapolis Star story that is still freely available online, titled "The story behind Lawrence's controversial utility contract." A side-bar to the story provides links to a weath of documents the Star has amassed and made readily available:

Current version of city's contract with Lawrence Utilities

2001 ordinance terminating sale of water utility to IWC, etc

Dec. 2001 ordinance in which Lawrence Council adopted water rate increases

Integrated Resources LLC takes $2.5 million loan

Condo loan taken from Integrated Resources LLC

Review of Lawrence Utilities 2003 finances by FSG

Lawrence Utilities' response to accounting review

Mayor Cantwell's lawsuit

Former Mayor Schneider testifies under oath

Lawrence Utilities responds to Cantwell's criticism

Ice Miller responses to Indy Star questions: April 21, April 29, May 12, July 2, July 23

"What's next" according to the Star story today:
Dreyer has set a hearing for 9 a.m. Friday. He could establish a timeline for returning the water and sewer utilities to city control. If Dreyer allows Lawrence Utilities to appeal his ruling, the transfer of control could be put on hold.

City officials say they will push for Dreyer to schedule a trial to determine whether ratepayers are entitled to money back.

Posted by Marcia Oddi on Thursday, November 03, 2005
Posted to Ind. Trial Ct. Decisions

Wednesday, November 02, 2005

Ind. Decisions - Indiana hearsay/confrontation clause case to be heard by U.S. Supreme Court

An editorial in the Las Vegas Review-Journal today reports:

[The Sixth Amendment] says the accused "shall enjoy the right ... to be confronted with the witnesses against him."

But what does that mean, in this day and age? Can domestic violence defendants (and others) be convicted based on tapes of 911 calls, or on written reports taken down by responding police officers, even if the sole witness to the alleged crime, often the spouse or domestic partner, refuses to testify or is simply not brought forward at trial?

The Supreme Court ruled on this matter last year, in Crawford v. Washington, barring such "hearsay" testimony unless the defense has had an opportunity to question the accusing witness, and unless that witness is unavailable to appear in person at the time of trial.

But lower courts have split on what that decision means. Some allowed the 911 calls or the written police reports to be admitted into evidence without personal testimony by the accuser; others did not.

On Oct. 31, the high court agreed to hear two cases that should clarify these questions. In Hammon v. Indiana, an Indiana man was convicted based on a written police report taken at the scene after he allegedly punched his wife and threw her to the ground, even though his wife, who had been subpoenaed to testify, didn't show up.

In Davis v. Washington, Adrian Davis was convicted of beating up Michelle McCottry based on her tape-recorded 911 call. Ms. McCottry was not called to testify.

In Hammon v. State (6/16/05 IndSCt) Justice Boehm wrote:
The Sixth Amendment as interpreted by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), prohibits the introduction in a criminal trial of testimonial statements where the defendant had no opportunity to cross examine the person who made the statements. We hold that statements to investigating officers in response to general initial inquiries are nontestimonial but statements made for purposes of preserving the accounts of potential witnesses are testimonial. More generally, we conclude that testimonial statements are those where a principal motive of either the person making the statement or the person or organization receiving it is to preserve it for future use in legal proceedings.
Bloomington attorney Michael Ausbrook of INCourts had an entry Monday on this grant, where he writes that he doesn't think the Supreme Court "is going to go for the attempts by state courts to divine the subjective intents of police officers and complaining, non-appearing witnesses."

Posted by Marcia Oddi on Wednesday, November 02, 2005
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit upholds Judge Barker in trial level judical bias decision

An ILB entry from 6/17/04 quotes a story by Maureen Hayden in the Evansville Courier&Press:

The Indiana attorney general contends a federal judge overstepped her boundaries when she overturned the conviction of death row inmate James Patrick Harrison because of "judicial bias" by a Posey County judge.

In a brief filed Tuesday with the U.S. Court of Appeals for the 7th Circuit, Attorney General Steve Carter contends U.S. District Judge Sarah Evans Barker should have deferred to state court judges, who have upheld Harrison's 1991 conviction in the death of two children. "The (federal) district court failed to apply the proper degree of deference to the Indiana Supreme Court's disposition of this claim," wrote deputy attorney general James Martin in the appeal. Martin also argues that Barker was incorrect when she ruled that Harrison's attorneys showed "actual judicial bias" was demonstrated during Harrison's trial by Posey Circuit Judge James Redwine.

A copy of Judge Barker's decision in Harrison v. Anderson (SD Ind., 1/22/04) is available here.

Today the Courier&Press is reporting, in a story again written by Maureen Hayden, that the 7th Circuit last week upheld Judge Barker's ruling. Some quotes:

Citing "unmistakable" judicial bias, a federal appeals court has upheld a lower [federal] court's decision to overturn the 1991 conviction of Indiana death row inmate James Patrick Harrison.

Late last week, the U.S. Court of Appeals ruled Harrison was deprived of a fair trial by Posey County, Ind., Judge James Redwine, who refused to remove himself from the case after defense attorneys raised allegations about his relationship with one of Harrison's victims. According to the appeals court opinion, U.S. District Judge Sarah Evans Barker was "eminently correct" when she ruled Redwine had demonstrated an "unmistakable bias infecting James Harrison's (murder) trial." Barker overturned Harrison's conviction last year and the Indiana Attorney General appealed her ruling.

Here is the 7th Circuit's 33-page opinion, dated 10/27/05. See particularly pages 30 through 33.

Posted by Marcia Oddi on Wednesday, November 02, 2005
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Orleans High School students reflect on oral argument

On Monday, the Court of Appeals heard oral arguments in the case of State of Indiana v. Wesley Brown at Orleans High School, Orleans, Indiana.

So, how did it go?

Jeff Hauersperger reports today in the Bedford Times-Mail:

[S]tudents said what they witnessed wasn't anything like they see on television.

“It wasn't as entertaining,” Morgan Craig said. She's a senior. She was one of about 130 Orleans High School juniors and seniors in government and U.S. history class who heard arguments in a case before the Indiana Court of Appeals.

“You watch all these court shows on TV and they're funny and entertaining so I thought it would be like that, but it wasn't that way,” Craig said.

It wasn't as entertaining, but students admitted it was educational. “You can learn things from a book all day long but this was real government at work,” said Blake Compton, a senior. “It was a good educational experience.”

It was also a first for the high school. Sean Steele, social studies teacher, said he took a class to hear a case at Paoli a few years ago but the judges had never been to OHS before.

He said this case proved to be more interesting than the last. “They were hearing a property line dispute at Paoli. Here it was about evidence obtained in an invalid search warrant,” Steele said. * * *

Students thought the state's case was weak. “It probably shouldn't have gone to the appeals court,” Compton said. “It was like she (Cynthia Ploughe as attorney for the state) was beating a dead horse.”

Andrew Carroll, a junior, agreed with Compton's assessment. “In 15 minutes she had made one valid point and appeared to have nothing else to fall back on,” he said.

“I was surprised it went to the appeals court,” Craig said. “It seemed like a pretty cut and dried case. There wasn't much (the state's attorney) could do. She went with the ‘Good Faith Exception' which is basically saying it was an honest mistake.” * * *

The students said they enjoyed how the three judges - John Baker, Patricia Riley and Edward Najam Jr. - interacted with them at the end of the case as they fielded questions.

They were also impressed with how much the judges knew about previous cases pertaining to the one at hand. “There were numerous cases that they reflected back on which made it tougher for (the state's attorney),” Compton said.

“They weren't the least bit hesitant in grilling the state with questions,” Carroll said.

Steele said it was good for the students to see an appeals court in action and not a jury trial.

“The judges would make specific points of law. They would ask (the attorneys) what was different about a particular case similar to this one that would cause them to make a different ruling on this one,” he said. “It showed the students how attorneys have to think on their feet quickly.”

Perhaps that was at least one thing that resembled what students would see on TV. But this wasn't scripted.

Access a photo of the judges here.

Posted by Marcia Oddi on Wednesday, November 02, 2005
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Judge cancels Lawrence water utility contract"

"Judge cancels Lawrence water utility contract" is the headline to a story by Kevin Corcoran posted mid-morning on the Indianapolis Star website. Some quotes:

A Marion County judge has invalidated a contract giving control of Lawrence's waterworks to a private water company run by political associates of the city's former mayor, saying the pact violated Indiana's bidding laws.

Marion Superior Court Judge David Dreyer delayed immediate compliance with his ruling, saying he wants a smooth transition to city control when, and if, the time comes. Dreyer decided the case in the city's favor without a trial. His ruling cannot be appealed without Dreyer's permission because portions of the case are still pending.

The water contract, entered into by then-Mayor Thomas D. Schneider, a Republican, gave control of the city's sewer and water utilities to Lawrence Utilities LLC. * * *

Customers have criticized the pact, which could extend for 50 years, because it included three hefty water-rate increases within nearly two years that doubled the rates, putting them among some of the metro area's highest. The contract, signed in mid-2001, sparked a voter backlash that helped defeat Schneider in 2003.

Mayor Deborah Cantwell, the Democrat who defeated Schneider, campaigned on a pledge to return control of the municipally owned waterworks to city officials. If Dreyer's ruling stands, she could get her wish. * * *

In his ruling, Dreyer stated the contract failed to follow Indiana's public-private partnership law, which requires public hearings and bidding for Marion County municipalities that want to hire public companies to run their utilities.

The ILB has obtained a copy of Judge Dreyer's ruling in this case, City of Lawrence v. Lawrence Utilities, dated Nov. 1, 2005. Access it here.

Posted by Marcia Oddi on Wednesday, November 02, 2005
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Supreme Court rules on spousal testimony

The Indiana Supreme Court has issued two opinions today, both written by Justice Boehm, dealing with spousal testimony. The decisions, which make very interesting reading, are John Glover v. State of Indiana and State of Indiana v. Dow Wilson.

In Glover, J. Boehm writes:

In the course of Glover’s trial for murder, the State called his wife to testify against him. In this interlocutory appeal, Glover challenges the denial of his motion to suppress her testimony. We hold that a court cannot require the wife to testify as to confidential communications between her and Glover, but the marital privilege does not bar her voluntary testimony. * * *

Because privileges operate to deny access to relevant and often critical information, they are strictly construed. Roach, 669 N.E.2d at 1010. In light of all of the forgoing considerations, we conclude that the marital privilege is more limited than the privileges attaching to communications to attorneys, physicians, and clerics. The marital privilege prevents a court from requiring a spouse to testify as to confidential marital communications, but does not bar the spouse from testifying if the spouse chooses to do so.

In Wilson, J. Boehm writes:
We hold that one spouse is not precluded from testifying in a criminal prosecution of the other. * * *

When the State called Heidi at Dow’s trial, Dow objected to her testimony on two grounds. First, he argued that the marital privilege, Indiana Code section 34-46-3-1(4), barred Heidi’s testimony as to communications between them. He also contended that because he was the accused in a criminal prosecution he was not required to testify, and therefore Heidi, as his spouse, was barred from testifying by Indiana Code section 34-46-3-2. * * *

The State argues that this new statute, Indiana Code section 34-46-3-2, is merely a re-codification of the Competency Statute, former Indiana Code section 34-1-14-9 (Burns 1986). Dow responds that current Indiana Code section 34-45-2-9 is a verbatim recodification of the former Competency Statute. There is therefore logic to Dow’s claim that the new section 2 of the Privilege chapter must be something other than a restatement of the old Competency Statute. And Dow argues persuasively that the language of this third provision is clear and susceptible to only one interpretation: if a party in a lawsuit is not required to testify, that person’s spouse is not allowed to testify.

On its face this new statute does just what Dow claims. * * * We nevertheless conclude that this new section ef-fected a substantial change in the law and is in conflict with other provisions of the 1998 Recodification Act. Dow’s interpretation of section 34-46-3-2 would permit the defendant in many domestic abuse cases to prevent the only witness—his wife, the victim in the case—from testify-ing. We think it highly unlikely the legislature would have intended such a result. * * *

Dow contends that when there is an irreconcilable conflict between the body of an act and a Purpose provision, the Purpose provision should be rejected. In this case we think the reverse is true—the aberration is ineffective because it conflicts with the “Purpose” provision of the Re-codification Act. The Recodification Bill, P.L. 1-1998, was 534 pages long and included hun-dreds of provisions on a wide variety of subjects. Recodifications are passed by the legislature in reliance on the technical skills of the Commission on Recodification and its staff, and on the provision in the first section of the Recodification that it will do no harm. The legislature was explicit in providing that no change in substantive or procedural law was intended, and we think this provision should be honored. Because the preexisting law was accurately preserved in other provisions, Indiana Code section 34-46-3-2 is an invalid extension of pre-recodification law and is of no effect.

Posted by Marcia Oddi on Wednesday, November 02, 2005
Posted to Ind. Sup.Ct. Decisions

Not law but interesting - The Chicago Trump Tower

The Chicago Tribune has a multi-media site called "Trump Tower: The Building of a Chicago Skyscraper." It has a "Trumpcam" zeroed in on the current hole in the ground, where you can "Watch as Chicago's new 92-story skyscraper rises along the river and begins its climb to an eventual 2009 completion (updates every few minutes)." It includes links to every Trib story on the project. It has building details, including a movie on the pouring of the caissons. Check it out.

Posted by Marcia Oddi on Wednesday, November 02, 2005
Posted to General News

Ind. Law - Crown Point considers "big box" ordinance

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

[Crown Point] city leaders have come up with another version of an ordinance aimed at keeping away most big box stores.

The proposed ordinance, which will be up for debate at a Plan Commission public hearing this month, would amend the city's zoning code. The new language would require a special use for retail businesses in structures 75,000 square feet or bigger.

While similar to an ordinance the Plan Commission briefly discussed last week, the new proposal would force developers or businesses to go before the Board of Zoning Appeals and the City Council for the special use. Under the other ordinance, developers proposing projects 75,000 square feet or larger would just go before the zoning board and request a variance from the development standards, according to Curt Graves, Crown Point's building and planning director.

In the immediate future, both proposals could affect Lauth Property Group's plans to build two anchor stores, one 203,000 square feet and another 88,400 square feet, at the intersection of Interstate 65 and U.S. 231. * * *

The Plan Commission will discuss the proposal Nov. 14.

Crawfordsville recently passed a big box ordiance, as recorded here in this 10/12/05 ILB entry.

Posted by Marcia Oddi on Wednesday, November 02, 2005
Posted to Indiana Law

Ind. Law - School may punish "unlawful activity off school property "

"Streaking incident ends in suspension: State law permits schools to punish students for inappropriate actions" is the headline to a story today by Elizabeth Holmes in the Munster (NW Indiana) Times. Some quotes:

A student from an out-of-district school who streaked at a Valparaiso High School football game has been punished by officials from his school, in what Valparaiso Superintendent Michael Benway called a "professional courtesy" between corporations. * * *

Although the streaker was not on school grounds, the event did not happen during school hours and did not involve any of the corporation's schools, East Porter County was well within its legal right to suspend the student. Indiana law allows a school corporation to punish a student in violation of a school policy anywhere at any time, according to Dana Long, assistant director for legal services at the Indiana Department of Education.

Such consequences typically stem from criminal charges being filed, like underage drinking or drug possession. But in the case of the streaker, no police action was taken, according to Cpl. Michael Grennes, public information officer for the Valparaiso Police Department.

Grennes said Valparaiso police provided security at the game and were notified of the incident, but charges were never filed because the parties involved decided to let the schools handle it. * * *

Even without criminal proceedings, schools can punish any "unlawful activity off school property that can reasonably be viewed as an interference with school purposes," according to Dave Emmert, general counsel for the Indiana School Board Association.

Posted by Marcia Oddi on Wednesday, November 02, 2005
Posted to Indiana Law

Environment - Newburgh settles water pollution problems; Hobart cemetery wetlands permit opposed; Delaware County ag park

"Newburgh settles water pollution problems" is the headline to a story today in the Evansville Courier& Press. Some quotes"

Federal and state officials have made final an agreement with the town of Newburgh to prevent sewage overflows into the Ohio River and several tributary creeks.

The agreement was filed Monday in U.S. District Court in Evansville, along with a formal record of the Environmental Protection Agency's complaint. However, the town has already taken the necessary steps to solve the problem, officials said, through a series of improvements to its waste water treatment plant and sewer system. Despite those improvements, Newburgh is still required to pay a $56,000 civil penalty.

"Wetlands permit opposed" is the headline to a Gary Post-Tribune story by Karen Snelling:
HOBART — There will be significant flooding and other adverse environmental impacts if a Hobart cemetery gets its way and fills in 41 acres of wetlands, a U.S. biologist says. The proposed filling would severely disrupt the natural hydrology of the Hobart Marsh ecosystem, said Elizabeth McCloskey of the U.S. Fish and Wildlife Service’s ecological office in Chesterton.

In addition to being a valuable fish and wildlife habitat, McCloskey said, it is a major water storage area. “The existing drainage system is probably already at capacity, and no other areas the size of the Hobart Marsh are available to hold the water,” McCloskey said.

In an Oct. 26 letter, she urged the U.S. Army Corps of Engineers to deny Evergreen Memorial Cemetery’s request for a permit to to fill in the wetlands. Hobart city officials and area environmental groups also oppose the permit. Last month, the Hobart City Council passed a resolution asking the Army Corps to reject Evergreen Memorial’s request.

Saturday was the deadline for submitting comments on the project.

The owners of Evergreen Memorial want the wetlands filled in so they will have more space to dig grave sites. The wetlands are located one- quarter mile south of the 39th Avenue and Sandusky Street intersection. They are part of the cemetery but are federally protected. Under the cemetery’s expansion plan, 41 acres would be filled and an additional six acres of wetlands would be excavated to become a deep pond.

To mitigate the loss of the wetlands, Evergreen Memorial would restore 47 acres of wetlands on property adjacent to Salt Creek south of Valparaiso. But the compensation plan, McCloskey wrote, will not mitigate for the loss of high-quality habitat in the Hobart Marsh or lessen the significant adverse impacts on both publicly and privately-owned nature preserves adjacent to the proposed project.

The biologist further told the Army Corps that the mitigation plan will not protect the water quality and quantity in Turkey Creek and Lake George. “It is the position of the U.S. Fish and Wildlife Service that it is not possible to mitigate for for the proposed filling and excavation of 47 acres of high-quality wetlands in the heart of the Hobart Marsh,” she said.

"County should review ag park policies first" is the headline to an editorial today in the Muncie StarPress. Some quotes:
Delaware County Commissioner John Brooke has effectively "tripled" the workload for members of the city-county plan commission at their Thursday meeting. But more work is crucial if planners are to make correct decisions.

Besides considering a rezoning application from a group of local farmers that would create the state's first agricultural park, the plan commission is scheduled to receive a pair of Brooke-prepared ordinances that relate directly to development of an ag park. One involves local regulation of CAFOs (confined animal feeding operations) and the other sets up additional governmental oversight of the proposed agricultural bio-enterprise park.

It seems sensible that planners, before they vote on whether to allow an ag park on 806 acres at Shideler, first consider what sort of regulations to attach to the operation.

For instance, if CAFOs are a permitted use, shouldn't there be some form of local regulation? And if the ordinance approved last summer to allow an ag park is as incomplete as some say it is, shouldn't more standards for development be considered?

Brooke's ordinances - which would need approval by the plan commission and board of county commissioners - are at least a start toward the goals of requiring more information from those who would develop sites in an ag park and in protecting the environment as well as the interests of nearby property owners.

Posted by Marcia Oddi on Wednesday, November 02, 2005
Posted to Environment

Tuesday, November 01, 2005

Ind. Decisions - Background about today's defamation decision [Updated 11/2/05]

"Defamation suit vs. Shine dismissed: Indiana Court of Appeals throws out lawsuit against GOP chairman" is the headline to a story this afternoon by Kevin Leininger in the Fort Wayne News-Sentinel. (ILB coverage of the ruling, issued earlier today, may be accessed here.) Some quotes from the story:

The Indiana Court of Appeals today dismissed a lawsuit accusing Allen County’s Republican Party chairman of defaming a former candidate for prosecutor.

Even though the three-judge panel unanimously sided with Steve Shine against Mike Loomis, Judge Michael P. Barnes in his concurring opinion wrote to “express both my concern and reservation that the First Amendment shields the conduct and speech” at the center of the controversy.

Loomis, an unsuccessful Republican candidate for prosecutor in 2002, sued Shine in November 2003 after a Nov. 21, 2001, Frost Illustrated story quoted the chairman as saying Loomis, as deputy prosecutor, used the office “as a vendetta against minorities and the multicultural community.” Shine backed Karen Richards for prosecutor, who eventually won the 2002 GOP primary and general election.

According to court records, Shine said he based his comments on conversations with a police officer, a local civil rights leader, newspaper stories and the fact that most Fort Wayne Police officers being investigated by Loomis for possible corruption were black.

Loomis and other police officers, however, insisted the investigation was driven by fact, not race.

In November 2004, Special Judge Bruce Embrey ruled that, because Loomis was a candidate for political office, he was a “public figure” under the law – meaning he would have to prove Shine acted with “actual malice” to win his case. Today’s ruling of summary judgment against Loomis means the court found no factual evidence to indicate Shine acted with the necessary malice.

[Update 11/2/05] Niki Kelly of the Fort Wayne Journal Gazette writes this morning in a story that begins:
Allen County Republican Party Chairman Steve Shine won a four-year dispute Tuesday over whether he defamed former county prosecutor candidate J. Michael Loomis when the Indiana Court of Appeals threw out Loomis’ case.

An Allen County judge originally said the case deserved to go to trial so a decision could be made on whether Shine acted with “actual malice” when saying Loomis used “the prosecutor’s office as a vendetta against minorities and the multicultural community.”

But the appellate court said Loomis failed to prove Shine made a defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.”

They ordered the trial court to grant summary judgment on all counts, which ends the case.

Posted by Marcia Oddi on Tuesday, November 01, 2005
Posted to Ind. App.Ct. Decisions

Ind. Courts - Randolph County Courthouse group meets with judges and lawyers from a seven-county area

"Legal group examines courthouse controversy" is the headline to a story today by Cynthia Aukermam in the Winchester News-Gazette. Some quotes:

The Save Our Courthouse Committee members presented their case to a gathering of judges and lawyers from a seven-county area [last] Wednesday [10/26/05] in Muncie.

Randolph County Superior Court Judge Pete Haviza said the group, called Ratliff and Cox Inns of Court, was seeking information from both sides of the controversy over the fate of the historic Randolph County Courthouse. "We don't take sides, and we're not a policy-making group," [Judge] Haviza said.

The Courthouse Calendar Girls were special guests at the gathering, which was held at Vera Mae's Bistro in downtown Muncie. Haviza said the Courthouse Calendar Girls got a nice round of applause and congratulations on their willingness to take a stand.

The Ratliff and Cox Inns of Court is part of a nation-wide program to mentor new lawyers and to provide an educational exchange in a social setting, outside the adversarial situation in courtrooms. The idea came from England. * * *

Judge Joel Roberts of Jay County [had] asked [Judge] Haviza to come up with a program about the Randolph County Courthouse controversy.

In addition to the Courthouse Calendar Girls, Wayne Goodman, of Historic Landmarks Foundation of Indiana, and Larry Francer, of Historic Farmland USA, spoke, as did Randolph County Commissioner David Lenkensdofer, who has consistently voted against demolition.

In an effort to provide as balanced a view as possible, Commissioners Drew Wright and Ron Chalfant, who have voted for demolition, were invited to speak. Both men declined, so [Judge] Haviza presented his interpretation of their stand.

Also speaking was Bill Wolfred, an aide to Indiana Supreme Court Chief Justice Randall Shepard. He is producing a virtual tour of the state's courthouses, and he began his work with Randolph County's because of its endangered status.

In his remarks, Francer said, "This is no longer just a story about tearing down, as two of our commissioners call it, an 'old' building. It is a story about saving the small town."

Francer lauded the efforts of the Courthouse Calendar Girls. He said, "They are not just our mascots or our poster girls. They are our matriarchs, our role models, our heroines. They are the essence of everything good, pure and solid about our small towns."

Francer said the women who took a creative stand for saving the courthouse are the "foundation of our small towns, rock-solid, as solid as is the foundation of our Randolph County Courthouse, which must not be demolished."

See also the ILB entry from last Friday, 10/28/05, which discusses the authority of the Randolph County judiciary in matters impacting the County Courthouse. The entry quotes from Indiana Supreme Court rulings on the authority of a county's judges with respect to the county courthouse, including this: "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."

Posted by Marcia Oddi on Tuesday, November 01, 2005
Posted to Indiana Courts

Ind. Courts - Court Security Guidelines and Priorities for the State of Indiana adopted by Supreme Court

The Supreme Court, on Nov. 18, 1994, adopted Court Security Guidelines and Priorities for the State of Indiana.

On Oct. 26, 2005, these Guidelines were posted under "New Features" on the Court website. There is no further explanation. Some quotes from the Guidelines:

Just as there are 92 counties in Indiana, there are 92 different sets of facilities, needs.and resources for which these guidelines must be relevant. A risk which may be a legitimate concern in a more heavily populated metropolitan county may not be as pressing in a less populated rural county, and vice versa. Similarly, risks in buildings which house many county offices along with courts are very different from those in buildings which house courts only. Some of Indiana's courthouses are historical treasures which do not easily lend themselves to security renovations. Some counties will plan courts-only facilities and will be able to design security into the structure and finish of such buildings. We have attempted to draft guidelines which will be of use in all of these situations. * * *

It is abundantly clear that security in court-related public facilities is not just a "big city" concern. Guns.and other weapons, when mixed with the high emotions of court proceedings, pose the same risk of deadly tragedy in whatever court-related facility they are found.

Posted by Marcia Oddi on Tuesday, November 01, 2005
Posted to Indiana Courts

Ind. Decisions - Ruling today turns on a showing of actual malice

In Steven R. Shine v. J. Michael Loomis, a 15-page opinion issued today, Senior Judge Ratiff concludes:

Taking into consideration the designated facts and the law pertaining to those facts, we determine that the trial court erred in concluding that a genuine issue of material fact existed on the question of actual malice. Accordingly, we reverse and remand with instructions that the trial court grant Shine’s summary judgment motion.4Reversed and remanded with instructions.

SHARPNACK, J., concur.
BARNES, J., concurring with separate opinion:

I concur, but write separately to express both my concern and reservation that the First Amendment shields the conduct and speech described here. The chairman of a political party made a false statement to a media outlet about a candidate whom he did not support in a primary election. This statement accused the candidate of racially intolerant behavior. The charge was clearly incendiary particular in this context. “Coincidentally,” this statement received widespread media coverage and, perhaps not so “coincidentally,” the candidate lost the primary election to the candidate favored by the chairman.

I understand that in matters of public or general concern a showing of actual malice is required and that such exists only “when the defendant publishes a defamatory statement with knowledge that it was false or with reckless disregard of whether it was false or not.” Journal-Gazette Co., Inc. v. Bandido’s, Inc., 712 N.E.2d 446, 456 (Ind. 1999) (quotation and citation omitted), cert. denied, 528 U.S. 1005 (1999). I am also well aware that for Loomis to establish reckless disregard he was required to show that Shine in fact entertained serious doubts as to the truth of his publication or proof that he made the false publication with a high degree of awareness of the probable falsity. See id. Despite the hardball politics seeping through the entire fabric of this case, I reluctantly conclude that Loomis did not make such a showing.

I do note, however, that one of the affidavits used to buttress the claim that Shine was acting with some basis in truth is from a police officer who was the subject of the investigation that spurred the comments by Shine. Clearly, this is a rather shaky foundation for the constitutional principles at issue. I believe in constitutionally protected free speech and fully grasp that political elections must be covered under that guarantee, but the context and facts of this case make it particularly painful for me to do so.

Posted by Marcia Oddi on Tuesday, November 01, 2005
Posted to Ind. App.Ct. Decisions

Ind. Courts - More courts news today, on Judge Pfaff, and on Goshen judge

"Pfaff seeks to keep law license: Former judge files bankruptcy" is the headline to this story today in the Elkhart Truth. Some quotes:

ELKHART -- Former judge Benjamin Pfaff's attorney asked the state Supreme Court to let Pfaff keep his law license when it formally disqualifies him from serving as a judge.
The story also reports that Pfaff filed for bankruptcy two weeks ago.

The Truth also reports today, in this story, that:

Goshen's longtime city court judge has taken an indefinite medical leave of absence.

Judge Cecelia McGregor decided last week to take the leave, and city court staff members said there's no time frame for McGregor's absence. McGregor has complications from multiple sclerosis, which she's dealt with for some time. * * *

Mayor Allan Kauffman said Monday that others in city government are praying for the popular elected official. "I hope that she can recover and come back to work," he said. McGregor, a Republican, has been judge since 1984. Her current term is through 2007.

Posted by Marcia Oddi on Tuesday, November 01, 2005
Posted to Indiana Courts

Courts - Safeguarding Illinois judges' voter registration records

Michael Sneed, Chicago Sun-Times columnist, has an item today about safeguarding judges' voter registration records:

Sneed hears the Chicago Election Board is drafting legislation to protect the voter registration records of the state's judiciary from stalkers and disgruntled defendants.

The downshot: Voter registration records, which include home addresses and often telephone numbers, are by law public records and subject to the Freedom of Information Act.

The upshot
: The proposed legislation, which would allow the sealing of the judiciary's registration records, was prompted by concerns of retaliation against judges by disgruntled trial participants, such as the crazed man who murdered the husband and mother-in-law of Judge Joan Lefkow in their North Side home.

The buckshot: Chicago Election Chairman Langdon D. Neal said the program would be optional for judges, who would vote by absentee ballot and omit their home addresses from public records. Neal said the program would be similar to a 2000 law that allows victims of domestic violence to enroll in an address confidentiality program.

Posted by Marcia Oddi on Tuesday, November 01, 2005
Posted to General Law Related

Environment - More on Hassan Barrel site in Fort Wayne

"EPA crew fences in toxic chemicals site" is the headline to a story today by Dan Stockman in the Fort Wayne Journal Gazette. Some quotes:

EPA-hired contractors began securing the Hassan Barrel site Monday, putting hundreds of barrels filled with flammable, toxic chemicals behind a new chain-link fence. * * *

The Environmental Protection Agency in October 2004 declared the 7-acre site a superfund site and removed thousands of barrels and secured the site, moving barrels with material in them into the main building and into semitrailers on the site. But as The Journal Gazette reported Sunday, crews had not returned to finish the cleanup, and in the meantime, the fence surrounding the site was taken down and doors were torn off the building.

The Journal Gazette also has an editorial today that begins:
The Environmental Protection Agency has a really odd idea about what it means to secure a property harboring hazardous waste. And the federal agency’s complacency about security posed a significant threat to Fort Wayne residents.
For background, see this ILB entry from Sunday.

Posted by Marcia Oddi on Tuesday, November 01, 2005
Posted to Environment

Law - Michigan appeals court halts ruling authorizing same-sex benefits

"Appeals court halts ruling authorizing same-sex benefits" is the headline to an AP story from the Lansing State Journal. Some quotes:

The Michigan Court of Appeals on Monday halted a ruling that allows governments and public universities to provide health insurance to the partners of gay workers.

The appeals court granted Republican Attorney General Mike Cox's request to delay a lower court's decision until the higher court decides the issue. The court also sped up the timetable for hearing the appeal.

Ingham County Circuit Judge Joyce Draganchuk ruled last month that public-sector employers can offer domestic partner benefits without violating a gay marriage ban approved by Michigan voters nearly a year ago.

See this 10/7/05 ILB entry for background, including a link to circuit Judge Joyce Draganchuk's 9/27/05 opinion.

Posted by Marcia Oddi on Tuesday, November 01, 2005
Posted to General Law Related

Ind. Courts - News today re Morgan County Courthouse; arrest of Greenwood court manager; Wayne County Circuit Court Judge David Kolger

"After 14 months, courthouse reopens" is the headline in the Indianapolis Star today to a report by Josh Duke on the reopening of the Morgan County Courthouse in Martinsville. Some quotes:

Noticeable changes -- such as new paint, natural light and fresh air circulating inside the building -- comforted employees as they returned last week. Circuit Court Judge Matthew Hanson said he can feel air movement within his offices that he hadn't noticed previously.
He added that he is amazed by the efficiency he has seen since returning to his office and courtroom. Employees no longer face cramped conditions where they have to search for materials and fight for courtroom space, he said.

The problem started in July 2004 with a mysterious smell inside the Circuit Court chambers that caused some employees to suffer respiratory-related illnesses. All courthouse employees moved out the next month to the administration building. An investigation traced the source to a flawed ventilation system, and the county hired Dial One Hoosier in May to fix it.

County Commissioner Norman Voyles estimated the county spent about $800,000 to fix the courthouse; however, the cost won't affect property taxes, he said. The work will be paid from the county's cumulative capital fund, which is money set aside for building repair and construction.

Returning to the courthouse will let the courts catch up on backlogged jury trials and civil cases, Hanson said. Some cases were pushed back more than a year because the county lacked courtrooms.

Beginning next week, Hanson expects to have two or three jury trials a week for the foreseeable future. Typically, his court has no more than one a week, Hanson said.

Some minor issues remained unresolved Monday. Various computers, printers and phones didn't work properly and, despite his excitement to be back, Superior Judge G. Thomas Gray isn't ready to sing the building's praises. Gray said employees may have moved back a week too soon. He said some cleaning issues remained when they returned last week, and they've been resolved.

"Court manager arrested in theft: At least $5,000 from Greenwood traffic fines may be missing, police say" is the headline to this Star story by Paul Bird. It begins:
The Greenwood City Court manager has been arrested in connection with the theft of thousands of dollars collected in traffic fines. On Monday, Johnson County sheriff's detectives arrested Paula Suzanne Borges, 41, Franklin, on an initial charge of theft. Bail was set at $3,000.

"I am beyond shock," said Judge Lewis Gregory. "If someone said a week ago I would be talking about this, I wouldn't have believed it." The court handles about $1 million annually in money paid in fines and probation. Police believe at least $5,000 is missing.
New Wayne County Circuit Court Judge David Kolger is the subject of a Richmond Palladium-Item story (first noted by E. Thomas Kemp of Kemplog.com).

Posted by Marcia Oddi on Tuesday, November 01, 2005
Posted to Indiana Courts