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Tuesday, January 31, 2006

Environment - House amendment would prohibit regulation of wood-fired boilers

A press release of State Representative Eric Koch, dated yesterday, announced:

(STATEHOUSE) Jan. 30, 2006 – An amendment by State Representative Eric Koch (R-Bedford) to House Bill 1332 would pre-empt the Indiana Department of Environmental Management from regulating outdoor wood burning furnaces and boilers.

“Many homes and businesses in my district are doing their part to reduce our dependency on fossil fuels by burning wood,” Rep. Koch said. “Wood is a renewable form of energy and Hoosiers should be encouraged, rather than discouraged, to burn wood, especially when fuel prices are so high.”

“Our limestone industry is a major user of these types of furnaces because of the large size of their buildings,” Rep. Koch said.

House Bill 1332 is an alternative energy bill co-authored by Rep. Koch that also includes incentives for biodiesel, blended biodiesel, and ethanol production.

Rep. Koch represents House District 65, which includes parts of Bartholomew, Brown, Jackson, and Lawrence Counties.

Here is the amendment and here is HB 1332.

See the Jan. 22nd ILB entry titled "Wood-fueled boilers stoke pollution debate" for a good overview of this issue.

Posted by Marcia Oddi on Tuesday, January 31, 2006
Posted to Environment

Ind. Courts - Supreme Court merges Clerk of Courts with Court Administrator

In a release issued late this afternnon, Chief Justice Randall T. Shepard has announced:

Supreme Court Administrator Kevin S. Smith will permanently add the duties of Clerk of the Courts to his responsibilities as part of the transition of the Clerk’s position from an elected position to an appointed one, Chief Justice Randall T. Shepard announced today.

The present Clerk of the Courts, David C. Lewis, announced Monday that he is resigning February 10, 2006 to take a job in the private sector.

Under legislation passed in 2004, the Clerk’s position was changed from an elected position to one appointed by the Chief Justice whenever the elected Clerk completes his or her term, or leaves office. Mr. Lewis’ current term would have expired December 31, 2006.

Mr. Smith has been the Supreme Court Administrator, serving as the Supreme Court’s chief appellate counsel and supervising a staff of 8 since 2004. Under the new arrangement announced today, he will also supervise the 14 employees in the Clerk’s office.

“I told the Clerk's staff this morning that for many years Indiana's appellate courts and the public have greatly benefited from effective and accurate work by our Clerk's Office. We have every reason to believe the Clerk’s office will continue to build upon its already substantial foundation,” said Chief Justice Shepard.

David Schanker, who has been serving as Mr. Lewis’s Chief of Staff, will continue in a similar capacity but with the new title, Deputy Clerk of the Courts. The Clerk’s Office is the “front door” of Indiana’s appellate judiciary where appeals to the Supreme Court, Court of Appeals, and Tax Court are filed. The Clerk’s office is also the custodian of the millions of pages of documents filed each year in Indiana’s appellate and runs a substantial operation to preserve vital court records in a lasting format.

Posted by Marcia Oddi on Tuesday, January 31, 2006
Posted to Indiana Courts

Ind. Decisions - Re recent federal court decisions on whether Indiana communities have right to restrict new medical centers

Judge Hamilton's ruling in Sisters of St. Francis v. Morgan County (SD Ind., 11/2/05) (see 11/2/05 ILB entry here) and Judge Barker's ruling in Kentuckiana Medical Center v. Clark County (SD Ind., 1/18/06) (see 1/19/06 ILB entry here) are discussed in this Indiana Business Journal article for the week of Jan. 30-Feb. 5, 2006, by Tom Murphy. Some quotes:

A federal court decision this month dealt a death blow to the idea that Indiana counties can halt health care construction to protect their own hospitals.

Representatives of safety-net hospitals say the ruling left them more vulnerable than ever to outside competition that sucks away profitable patients and leaves behind the poor and uninsured.

"I still think that issue is underlying all of this, and so far I haven't seen that issue being addressed," said Robert Keen, CEO of Hancock Regional Hospital.

Hancock, Marion County's eastern neighbor, is one of just two counties in the state with a surviving moratorium that restricts health care construction. Harrison County in southern Indiana is the other.

Those laws are probably no longer worth the paper they're written on, said Edmund Abel, director of health care services for the Indianapolis-based consulting firm Blue & Co.

"The ability to do something on a county-by-county basis has, I think, pretty much been mooted," he said. * * *

[Daniel Warncke, a lawyer who represented plaintiffs in the Kentuckiana case] said he hopes the court rulings end talk of county moratoriums.

"It never made sense to me," he said, noting the General Assembly wants to promote competition, and the state years ago repealed a certificate-of-need law that restricted health care construction.

County moratoriums would lead to a "patchwork of regulation that would basically Balkanize the state," added Dave Bromund, a partner with the Indianapolis law firm of Sommer Barnard who represented St. Francis in its case.

"It would just be incredibly difficult for hospitals and health systems to operate if each county had their own rules about this," he said.

County hospital representatives, however, say they need the protection. They've long argued that other health care companies move into their territory and skim off profitable business while avoiding emergency care and other unprofitable segments.

Posted by Marcia Oddi on Tuesday, January 31, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - 7th Circuit issues two, both Indiana-related

In USA v. Belk, Joshua (ND Ind., James T. Moody, Judge) Judge Easterbrook begins:

In 1996 George Rogge hired Joshua Belk as the bookkeeper for his insurance agency. Belk decided that he could multiply his income through embezzlement. Over the years he siphoned more than $675,000 from Rogge’s business, driving it into bankruptcy. Belk has been convicted of mail fraud, see 18 U.S.C. §1341, because several of the devices used to divert funds from Rogge’s accounts to his own entailed mailings. Only the sentence—51 months’ imprisonment plus $678,306.65 in restitution to George C. Rogge Agency, Inc.—is contested on appeal. *** Affirmed.
In Rising-Moore, John v. Red Roof Inns (SD Ind., Sarah Evans Barker, Judge), Judge Easterbrook writes:
John Rising-Moore prefers to litigate this slip-and-fall case in state court. But after his lawyer said that the claim was worth between $180,000 and $200,000, and demanded $160,000 in settlement, the suit was removed to federal court, where summary judgment was granted in defendant’s favor. 368 F. Supp. 2d 867 (S.D. Ind. 2005). Rising-Moore asks us to return the proceedings to Indiana, where he can have a second chance on the merits. Diversity of citizenship is established, but the amount in controversy is disputed. * * *

Only if Rising-Moore were risk-neutral and had more than an 80% chance of winning a favorable verdict would the $60,000 offer imply that the full controversy is under $75,000. Given the district judge’s belief that Rising-Moore has no chance of prevailing before a reasonable jury, that hardly seems likely.

Only brief mention of the merits is required; the district judge has said everything that needs saying on this score. Indiana does not make land owners absolutely liable for falls on their property. See Hammond v. Allegretti, 262 Ind. 82, 88, 311 N.E.2d 821, 826 (1974). With respect to winter storms, in particular, Indiana does not require immediate removal of snow or ice. Hammond, 262 Ind. at 88. Although Rossow v. Jones, 404 N.E.2d 12 (Ind. App. 1980), held that a week is too long to wait, action within shorter times (such as at daybreak during a storm, or soon after a storm ends) has been treated as reasonable diligence. See Orth v. Smedley, 378 N.E.2d 20, 23 (Ind. App. 1978) (dictum). Red Roof Inns did not wait a week, or even overnight. As Rising-Moore tells the tale, the path was clear and dry when he entered and slippery (because of an ongoing ice storm) when he left the motel’s office about 15 minutes later. Only a duty of continuous monitoring and clearing during a winter storm would make an owner liable under these circumstances, and there is no such duty in Indiana.

Posted by Marcia Oddi on Tuesday, January 31, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues three today

In Progressive Insurance Company, Inc. v. Misty Sweet Bullock, a 15-page opinion, Judge Barnes concludes:

Progressive may not borrow the anti-stacking clause in the contract between Farm Bureau and Jones and apply it to its policy. Although Progressive may set off the amount paid to the Bullocks by Indiana Insurance on behalf of Kemp, Progressive may not set off the amounts paid to the Bullocks by Jones’s UIM coverage. A limits-to-limits comparison is not the appropriate method for determining whether Kemp was underinsured, and Progressive may not set off or otherwise reduce its obligation to the Bullocks by the amount paid to Jones by Kemp. S.E.B. is a person when construing the policy against Progressive. Thus, the trial court properly denied Progressive’s motion for summary judgment. We affirm in part and reverse in part.
Justin T. Frey v. State of Indiana is a 13-page sentencing appeal with three different opinions. Judge Friedlander concludes:
We find that the aggravating circumstances outweigh the mitigating circumstances. Accordingly, we reach the same conclusion as the trial court with respect to the sentence that is appropriate in light of Frey’s character and the nature of the offense he committed. See Neale v. State, 826 N.E.2d 635 (Ind. 2005). Frey is sentenced to eight years incarceration, which, although the maximum allowable under the plea agreement, we note is nevertheless less than the presumptive sentence for a class B felony.

Judge Sullivan concurs with a separate opinion. Judge Vaidik concurs in part and dissents in part, concluding:

The task of identifying aggravating and mitigating circumstances is a matter best entrusted to our trial courts and juries and not to us. See Ind. Code § 35-38-1-7.1; Blakely v. Washington, 542 U.S. 296 (2004). This is so because the identification of aggravating and mitigating factors often depends on credibility determinations. And trial courts and juries are in a better position to judge the credibility of the evidence as they view the evidence first-hand. Our task, then, is to review the findings of aggravators and mitigators for an abuse of discretion only after the findings are made. Admittedly Indiana Appellate Rule 7(B) authorizes appellate courts to revise sentences, but that function should not give us a green light to identify aggravators and mitigators in the first place. In other words, our authority to revise sentences does not mean that when a trial court fails to identify aggravators and mitigators, we should do that for them. I therefore disagree with the lead opinion’s decision to identify and weigh the aggravators and mitigators in this case. Instead, I would remand the case for the trial court to do so.

In Edward Hopkins v. State of Indiana, a 12-page opinion, Judge Barnes writes:
Edward Hopkins appeals the denial of his petition for post-conviction relief, which challenged his two convictions for Class B felony robbery. We reverse and remand. * * *

We conclude that Hopkins received ineffective assistance of counsel on his first direct appeal. Counsel should have developed a more thorough argument and alerted this court to clear, binding precedent that would have dictated that Hopkins’s convictions for Class A felony robbery had to be reduced to Class C felonies, not Class B felonies. We reverse the denial of post-conviction relief and remand with instructions that Hopkins’s two convictions for Class B felony robbery be reduced to Class C felonies and that he be resentenced accordingly.

Posted by Marcia Oddi on Tuesday, January 31, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues two today

In Gene Lasater and Carolyn Lasater v. Donald House, Sr., et al., Justice Rucker writes:

The question presented is whether in a will contest the hearsay statements of a testator are admissible to prove undue influence. We conclude they are not.
In Karen C. Horseman v. J. Scott Keller, Justice Rucker writes:
The trial court affirmed a decision of the court-appointed Recount Commission that concluded J. Scott Keller was the winner of the 2003 election for the Marion County City-County Council District 16 seat. In so doing the trial court also declared unconstitutional an absentee voting statute. We previously announced (on February 11, 2005) that we agreed with the trial court’s conclusion concerning the ultimate outcome of the election. However, we disagree with its decision concerning the constitutionality of the statute and now write to explain our reasoning.
[Here is what the ILB posted at the time on the 2/11/05 order.]

Justice Rucker concludes today's 13-page opinion:

We affirm that portion of the trial court’s judgment that concluded the Recount Commission’s findings of voter intent were non-appealable findings of fact. We reverse that portion of the trial court’s judgment declaring unconstitutional Indiana Code section 3-12-1-13.

Posted by Marcia Oddi on Tuesday, January 31, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Monroe Circuit Judge Marc R. Kellams has filed for re-election to a fifth term

The Bloomington Herald-Times reports today:

Monroe Circuit Judge Marc R. Kellams has filed for re-election to a fifth term.

Kellams has served on the bench since Jan. 1, 1981, and has also held appointment as an adjunct professor of law at the Indiana University School of Law since 1983. * * *

[H]e has served on the Judicial Ethics Committee of the Indiana Judicial Conference and presided as its chairman during a review of the American Bar Association's Model Code of Judicial Conduct. This resulted in a recommendation to the Indiana Supreme Court for significant amendments to the Indiana Code of Judicial Conduct, which were substantially adopted.

Posted by Marcia Oddi on Tuesday, January 31, 2006
Posted to Indiana Courts

Environment - Deal Eases Fines for Farms That Pollute; What this Means for Indiana

An AP story in the NY Times yesterday reported:

WASHINGTON, Jan. 30 (AP) — The Bush administration will exempt thousands of farms that raise poultry, cattle and hogs from heavy fines for fouling the air and water with animal excrement in exchange for data to help curb future pollution.

The Environmental Protection Agency has signed agreements with 2,681 animal feeding operations in the egg, chicken, turkey, dairy and hog industries. They would be exempt from having to pay potential fines of up to $27,500 a day for violations either in the past or over the next four years.

On Monday, the agency said its Environmental Appeals Board had approved the first 20 of those agreements, selecting accords it thought were representative of the whole. Ten are with swine-raising operations and 10 with operations that raise egg-laying birds.

The board said it had determined that the agreements were consistent with the Clean Air Act. Agency officials said the approvals set the stage for the remaining agreements to gain approval quickly. * * *

The agency said its consent agreements with the animal feeding operations would cover more than 6,700 farms in 42 states. The participating farms range from relatively small dairy operations with perhaps five dozen cows to large hog and dairy operations with tens of thousands of animals.

Pollutants to be monitored include soot and volatile organic compounds, as required by the Clean Air Act, and ammonia and hydrogen sulfide, as required by Superfund's emergency reporting provision.

By signing on, the farms agree to abide by clean air, hazardous waste and emergency reporting laws after the data are collected. They would pay $2,500 into an E.P.A. fund and agree to let agency-approved contractors monitor the air. The fund would pay for two years of air monitoring at 28 to 30 farms nationwide at a cost of up to $500,000 each.

Companies also would have to agree to pay civil penalties of $200 to $100,000, depending on the size and number of farms they operate. Those fines would cover presumed violations, past and present. * * *

Agency officials say they retain authority to take immediate action against any company if its operations pose an imminent or substantial threat to public health, and the deal will not affect state and local agencies' enforcement of their laws for corporate farm operations. The agency has settled two recent Clean Air Act cases involving animal feeding operations.

Randy Spronk, chairman of the National Pork Producers Council's environmental policy committee, said the agreements would allow the agency "to use sound science to develop practical policies that work for pork producers of all sizes and types."

Environmentalists plan to file suit challenging the new consent arrangements.

"This decision is a great disservice for people who live around large factory farms," said Ed Hopkins, environmental quality director for the Sierra Club. "It basically gives these farms a free ride on the backs of the public. There's really nothing in this that holds the polluters accountable for the toxic air emissions they release."

For background, see these ILB entries from 1/22/05, 1/30/05, and 4/4/05.

Here is EPA's press release from 1/30/06.

What does this mean for Indiana?

Here is EPA's list of the first 20 of the 2,681 agreements it has signed. Three of them are located in Indiana.

So fifteen percent of the first twenty farms exempted by EPA under this program are located in Indiana. If the percentage holds true, and if the NY Times analysis is correct, this means that 15% of the 2,681 agreements already signed, or 402 Indiana farms "that raise poultry, cattle and hogs [will be exempt] from heavy fines for fouling the air and water with animal excrement in exchange for data to help curb future pollution" under this EPA program. The Times story also has indicates that EPA ultimately plans for the program to cover 6,700 farms.

Here is a link to the 41-page agreement, which the ILB has not yet reviewed.

Posted by Marcia Oddi on Tuesday, January 31, 2006
Posted to Environment

Not law but interesting - "Gun-Toting Delegate Misfires at Va. Capitol"

Yes, this is starting out as a slow news day for the ILB. But I had marked this story, from last Friday's Washington Post, for just such a situation. Headlined "Gun-Toting Delegate Misfires at Va. Capitol," the story begins:

RICHMOND, Jan. 26 -- Del. John S. "Jack" Reid had gone through this morning routine dozens of times. He'd reach into his pocket, pull out his small semiautomatic .380 handgun, release the clip and store the weapon safely in the desk drawer of his office on the seventh floor of the Virginia General Assembly Building.

But something went wrong Thursday. Reid's pistol, which he said he carries for protection, fired as he popped the clip from the handle, sending a single bullet into the cushion of a bulletproof vest that was hanging from the back of his closed office door.

Posted by Marcia Oddi on Tuesday, January 31, 2006
Posted to General News

Monday, January 30, 2006

Not law but interesting - The day the Louisville Courier Journal left town

"The Day the News Left Town" is the headline to this lengthy story today that begins on the front page of the business section of the NY Times. Some quotes:

HAZARD, Ky. — On a rainy day in mid-January, Alan Maimon, a reporter here for The Louisville Courier-Journal, packed up his desktop computer, fax machine and printer in his company-owned Ford Explorer. He then drove three hours to Louisville, turned in the equipment to the newspaper and, with that, officially brought to a close The Courier-Journal's storied Hazard bureau in eastern Kentucky.

"The paper doesn't even circulate here anymore," Mr. Maimon, 33, said before leaving the bureau he has run from his house for the last five years. "There's no financial reason to keep it open."

It was an anticlimactic moment, especially compared to some of the high drama witnessed by a string of correspondents who had run the Hazard bureau over the years. From the heart of coal country, the reporters used the megaphone of The Courier-Journal's front page to tell the world about mining disasters and the strip mining that cut across the roller-coaster terrain here. The strip mining articles won the paper a Pulitzer Prize for public service in 1967. In 1998, its reporters wrote about the widespread doctoring of air quality tests in the mines, which left hundreds of miners breathing dangerous levels of coal dust, leading to black lung disease.

And always, the paper served as a roll call for the region's dead — 38 miners killed near Hyden in 1970; 15 in the Scotia mines in Whitesburg in 1976, and then, two days later, 11 more; seven in Floyd County in 1982; and so on.

The Courier-Journal, which was bought 20 years ago by the Gannett Company, announced in December that it was pulling the plug on its bureau in Hazard (population 5,000) and two others in the state.

They are the last of the newspaper's once-robust statewide system of bureaus, all of them gone now except for one in Frankfort, which is the state capital. * * *

The paper became a force in eastern Kentucky decades ago with its crusade against strip mining. And its uncovering of abuses helped lead to the establishment of the Mine Safety and Health Administration.

"The Courier has had such an impact in eastern Kentucky," said Bill Gorman, 81, who has been the mayor of Hazard since 1978 and ranks The Courier-Journal with the Bible in terms of required reading.

"We used to have bad floods, and The Courier-Journal took a look at it and got the dams built," he said. "We got the road situation improved and developed eastern Kentucky because of The Courier's influence in Frankfort and in Washington, D.C."

Now, he said, "they've pulled their horns in, and closing the bureaus will hurt the regions they've been serving more than it will hurt The Courier-Journal."

For the paper's commitment to the region, Hazard deserves a "historic sites in journalism" marker, said Al Cross, a former Courier-Journal reporter who now directs the Institute for Rural Journalism and Community Issues, based at the University of Kentucky in Lexington.

"It showed the willingness of a faraway institution to make a substantial investment in a place where it gained nothing economically," he said.

One group not weeping over the loss of the Hazard bureau is the coal industry. Bill K. Caylor, president of the Kentucky Coal Association, which lobbies in Frankfort on behalf of coal operators, said there was little need for the paper's presence in eastern Kentucky because the industry had cleaned up its act.

Posted by Marcia Oddi on Monday, January 30, 2006
Posted to General News

Ind. Decisions - Summary judgment practice is topic of SD Ind. ruling posted today

Thomas Carter v. Citizens Gas is the subject of Magistrate Tim A. Baker's just posted, but dated 1/19/06, 6-page ruling on pending motions that begins:

This Court’s local rules were amended in 2002 to provide much-needed streamlining of what had become a rather cumbersome and unwieldy summary judgment process. These amendments were not overly complicated, yet this case demonstrates that summary judgment practice in this district continues to go astray from time to time. As a result, the quest for consistently focused and streamlined summary judgment briefing remains elusive.

In the present case, two motions to strike have been filed in connection with the summary judgment briefing. A review of these motions and related filings reveals that Plaintiff’s counsel does not adequately comprehend the revised summary judgment process, so some clarification of this procedure is in order.

Posted by Marcia Oddi on Monday, January 30, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Who is running in the primaries?

The Indiana Secretary of State's Election Division website includes the 2006 Primary Candidate List.

It is in two parts, the Democratic filings are first, then the Republican.

The list includes Congressional seats, Indiana House and Senate, Judges of the Circuit and Superior Courts, Prosecuting Attorneys, and Small Claims Court Judge.

By noon, Friday, February 17, 2006 is the deadline for filing a declaration of candidacy for the May 2, 2006 primary election.

As you will see in looking at the lists, most candidates for their party's primary nomination do not currently have opposition.

Posted by Marcia Oddi on Monday, January 30, 2006
Posted to Indiana Government

Ind. Courts - Judge Robert A. Pell is candidate for Clay Circuit Court

From the Brazil Times:

Clay Circuit Court Judge Robert A. Pell has announced his candidacy for Judge of Clay Circuit Court. * * *

He obtained his law degree from Indiana University School of Law at Indianapolis in 1980. After admission to practice in Florida and Indiana, he practiced law in Florida and returned to Clay County in 1982. He served as Chief Deputy Prosecuting Attorney under Fritz Modesitt.

He also served as Child Support Deputy Prosecuting Attorney and as Chief Deputy Prosecuting Attorney under David Thomas.

In all, Judge Pell has spent 15 years with the Prosecutor's Office together with 18 years in private practice in Clay County.

In March 2005, Judge Pell was appointed by Gov. Mitch Daniels to fill the vacancy created when former Judge Ernest Yelton left to head the Indiana Gaming Commission.

Posted by Marcia Oddi on Monday, January 30, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides five today

None of them involve Indiana. Two are immigration appeals; here are the others.

Bassiouni, Mahmoud v. FBI is a 26-page opinion by Judge Ripple:

Pursuant to the Privacy Act, 5 U.S.C. § 552a, Mahmoud Cherif Bassiouni sought to amend records maintained by the Federal Bureau of Investigation (“FBI” or the “Bureau”) that pertained to his contacts with, and activities concerning, the Middle East. After exhausting his administrative remedies, Mr. Bassiouni filed this action under the Privacy Act’s enforcement provisions, id. § 552a(g). The district court granted summary judgment to the FBI; it held that the records were exempt from the Privacy Act’s amendment requirements. Mr. Bassiouni now appeals. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
USA v. Gilbertson, Allen K. is a criminal appeal, "affirmed in all respects."

In Ford Motor Company v. Phillips, Joy, Judge Posner writes:

Before us are petitions for leave to appeal under the Class Action Fairness Act of 2005, Pub. L. 109-2, 119 Stat. 4, from orders remanding two class action suits to Illinois state courts. The question the petitions present is whether amending a complaint to add or substitute named plaintiffs (class representatives) “commences” a new suit. Id., § 9. The suits were filed before the effective date of the Class Action Fairness Act but the amendments came after. So if the amendments are deemed to commence new suits, these suits are removable to federal district court; otherwise not. Knudsen v. Liberty Mutual Ins. Co., 411 F.3d 805, 806 (7th Cir. 2005); Pritchett v. Office Depot, Inc., 404 F.3d 1232 (10th Cir. 2005). No appellate court has yet decided whether adding named plaintiffs to a class action suit “commences” a new suit for purposes of removal under CAFA. * * *

Relation back to add named plaintiffs in a class action suit is of particular importance because of the interests of the unnamed members of the class. Suppose Mr. X files a class action and after the statute of limitations has run the defendant settles with X. If a named plaintiff cannot be substituted for X with relation back to the date of the filing of the original complaint, the class will be barred from relief. That is the fate looming in Boxdorfer if relation back is denied, and for all we know in Phillips as well for class members who own 1996 Ford models. Since, for this reason, Illinois in effect allows named plaintiffs to be substituted with relation back (“in effect” because the formal rule is that the filing of a class action tolls the statute of limitations for class members, so that they can if necessary be substituted for the named plaintiffs, without being barred by reason of the passage of time since the suit was filed), Steinberg v. Chicago Medical School, 371 N.E.2d 634, 645 (Ill. 1977); Regnery v. Meyers, 679 N.E.2d 74, 81 (Ill. App. 1997) (this is also the federal rule, American Pipe & Construction Co. v. Utah, 414 U.S. 538, 553 (1974); Culver v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir. 2002)), the addition of such plaintiffs in the two cases before us did not commence new suits. Remand was therefore required, as the district judges ruled.

Posted by Marcia Oddi on Monday, January 30, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues four

Orthodontic Affiliates, P.C. v. Shawn R. Long, D.D.S., a 7-page opinion by Judge May, deals with termination of an employment contract, and concludes:

The language of Paragraph 7 is not ambiguous and the contract between Long and Orthodontic Affiliates was properly terminated by Long’s letter. Because there are no genuine issues of material fact and Long was entitled to judgment as a matter of law on this issue, the trial court did not err in granting partial summary judgment in Long’s favor. Accordingly, we affirm.
In Mattie Smith v. Estate of Jodie Mitchell, Judge Riley's 8-page opinion concludes:
While the law has taken more than one turn in deciding the requisite components of commencing a civil action, it appears to have been settled that a plaintiff must fulfill all the obligations of Ind. Trial Rules 3 and 4 to commence a lawsuit, including an action to contest a will.3 Therefore, we find that it was proper for the trial court to grant summary judgment in favor of the Estate.
Richard Lee v. Kimberly Hamilton - "The trial court did not abuse its discretion in excluding Exhibits 6 and 24 or in declining Defendant’s Tendered Instructions Nos. 9 and 10. Accordingly, we affirm."

Villas West II of Willowridge v. Edna McGlothin is a 38-page opinion by Judge Sharpnack dealing with whether a homeowners' associations' restrictive covenant that prohibited leasing of a residence violated the Fair Housing Act, 42 U.S.C. §§ 3601-3619. The court here affirms the trial court's finding that it did, writing in conclusion:

While we think this is a close case, we cannot say the trial court’s finding of a violation of the federal Fair Housing Act is clearly erroneous. In doing so, we do not intend to imply that all restrictive covenants prohibiting leasing violate the federal Fair Housing Act. Rather, this is complex, fact-sensitive analysis that should not be taken to apply to all such covenants.

Posted by Marcia Oddi on Monday, January 30, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Indiana Inmate Executed Amid Federal Court Drama"

Charles Wilson of the AP had a story this weekend tracking multiple courts' actions in the last minute appeals to stay the execution of Marvin Bieghler. It begins:

After two decades on Indiana's death row, Marvin Bieghler was executed after a late night of appeals, a stay and a reversal.

By the end, Bieghler seemed to have had enough.

"Let's get it over with," was the 58-year-old man's final comment before he was executed early Friday for the 1981 murders of a Howard County couple.

Less than 90 minutes earlier, the U.S. Supreme Court overturned a lower federal court order allowing him a new appeal.

Late Thursday, the 7th U.S. Circuit Court of Appeals in Chicago granted Bieghler a chance to challenge the legality of lethal injection. The Supreme Court rejected a similar appeal from Bieghler just hours earlier, and the Indiana attorney general's office turned to the justices again after the appellate order.

Posted by Marcia Oddi on Monday, January 30, 2006
Posted to Indiana Courts

Courts - Political Spotlight Shines on Judicial Ethics

"Political Spotlight Shines on Judicial Ethics" is the headline to a column by Legal Times' writer Tony Mauro. The lengthy article begins:

Disputes over conflicts of interest. Reports of a junket to a Colorado resort. The prospect of ever more partisan and expensive elections. Last week was quite a week in the life of the judiciary.
The article looks at several different issues, including this one:
On another front in the judicial ethics battle, the Supreme Court let stand an 8th Circuit appeals court ruling that invalidated judicial canons in Minnesota that bar judicial candidates from declaring their party affiliations and individually soliciting campaign funds. The Court was expected to take up the case, and by not doing so, critics say it will hasten the day when judicial elections are indistinguishable from other rancorous, costly campaigns.

"I feel like we are going back to the 19th century, where judges were an active part of the political arena, except judges have a lot more power now," says former Texas Supreme Court Chief Justice Thomas Phillips, now a partner in the Austin office of Baker Botts. Phillips was referring to the Court's action denying review in the Minnesota case, in which he represented the Minnesota Board on Judicial Standards in its effort to resurrect the ethics rules.

"It means a judicial candidate can go up and say to someone, 'I'm dead set against abortion, I'm a loyal Republican, can you write me a check?'" says Northwestern University School of Law Professor Steven Lubet. "We're involved in a race to the bottom in state judicial elections. It's a phenomenal mess."

The disarray on several ethics fronts is already having an effect. An American Bar Association commission tasked with revising its influential model code of judicial conduct may have to pull back its proposed Canon 5, which would bar exactly the kind of judicial politicking the 8th Circuit ruling now permits. A hearing on the proposals is set for the ABA's meeting in Chicago on Feb. 11.

"I don't have a high degree of confidence that we are proposing a code that is constitutional," says Jan Baran, a partner in D.C.'s Wiley Rein & Fielding and a member of the commission.

The denial of review in Dimick vs. Republican Party of Minnesota is discussed in this ILB entry from Jan. 24th.

Posted by Marcia Oddi on Monday, January 30, 2006
Posted to Indiana Courts

Ind. Law - Star editorial on redistricting bill; my thoughts

The Indianapolis Star today urges the state senate to adopt HB 1009, the redistrcting bill. Some quotes:

Legitimate questions about implementation remain and the problem of partisanship certainly hasn't disappeared, but passage of the legislative redistricting bill by the Indiana House sends a clear challenge to the Senate to make a choice between voters' interests and those of politicians.

So far, unfortunately, Senate President Pro Tempore Robert Garton, R-Columbus, has shared the coolness of Democratic leaders toward the creation of a bipartisan commission to draw boundaries after the 2010 census.

They point out that the Indiana Constitution empowers the legislature to design the maps; but that's why the bill authored by Rep. Gerald Torr, R-Carmel, makes the commission advisory and gives the legislature at least a semi-final say. Whether the legislature would enjoy indefinite veto power, and how much change it could order in the commission's drafts, remains to be worked out.

Those concerns are real, but they should not serve as an excuse to dismiss a genuine break from the tradition of shameless gerrymandering whereby incumbent elected officials insulated themselves from challengers and the parties conspired in comfort rather then competitiveness. The result has been shoo-in re-elections, voter apathy, emboldened special interests and political fragmentation of neighborhoods. * * *

House Minority Leader B. Patrick Bauer, D-South Bend, reminds us that a commission made today might well be unmade by whoever's in power in 2010.

My thoughts. There are valid concerns about the redistricting bill. It is ambiguous. It may well be unconstitutional. It could be repealed next year, one General Assembly can not bind the next.

A redistricting commission is an excellent idea, but it has to be done right -- by constitutional amendment. Going the constitutional route would solve each of the above problems.

A constitutional amendment needs to be passed by two separately elected General Assemblies. This is the second session of the 114th General Assembly, next year is the first session of the 115th ...

Then the proposed constitutional amendment goes on the ballot at the next general election. And the voters decide.

Posted by Marcia Oddi on Monday, January 30, 2006
Posted to Indiana Government | Indiana Law

Sunday, January 29, 2006

Ind. Decisions - More on Judge Hamilton's ruling in Hinrichs, et al. v. Bosma

Fran Quigley, executive director of the American Civil Liberties Union of Indiana in Indianapolis, has an opinion piece today in the Indianapolis Star titled "Inaccuracies swirl around decision on state prayer." He begins:

The recent ruling by U.S. District Court Judge David Hamilton on sectarian prayer in the Indiana General Assembly has spurred a disturbing number of misstatements about the decision and its implications. Unfortunately, the column by Russ Pulliam and the interview with Sen. Brent Steele in the Jan. 22 Star repeat some of those inaccuracies. I would like to clear up five of the most common misunderstandings about the decision.
For the decision itself, see this ILB entry from 11/30/05. For what has happened since, type "prayer" in the search box.

Posted by Marcia Oddi on Sunday, January 29, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Telecom bills subject of "Pro and Con" columns

The Indianapolis Star today has pro and con columns on telecommunications deregulation.

A quote from the "pro" column:

The choice is clear: Do we maintain the status quo of arcane and unnecessary regulation that will limit citizens' choices for traditional and newly emerging communications services, or do we provide a climate conducive for communications companies of all shapes and sizes to invest and provide competitive services?
A quote from the "con" column:
Ratepayers are in for shock if the state's giant monopoly telephone companies are successful during the 2006 legislative session. Two bills, Senate Bill 245 and House Bill 1279, are being rammed through the Indiana House and Senate at the request of the new AT&T, formerly SBC, and Verizon, which just bought MCI. These bills would allow monopoly telephone companies to set their own rates.

Posted by Marcia Oddi on Sunday, January 29, 2006
Posted to Indiana Law

Environment - More on "Too many unanswered questions about Dunes lodge; Environmental Impact Statement"

The Chesterton Tribune Friday carried a letter from noted Indiana environmentalist Charlotte Read on DNR's plan for the Indiana Dunes State Park:

The Indiana Dunes State Park is one of the most scenic, historic, and ecologically significant natural areas in Indiana. The beach and dunes attract one million visitors a year. At the same time the park supports over 70 native plants and animals, more than any other Indiana state park property, providing habitat for endangered and threatened species such as the Piping Plover and Pitchers Thistle. The Indiana Department of Natural Resources is proposing to seek private development of a 3- to 4- story “full-service” inn at the Indiana Dunes State Park. Any new development along or near the beach will negatively affect the park’s significant natural resources and visitor experience. It will also interfere with bird migration and affect bird mortality. This proposed private development provides no benefit to park visitors, or to the people of Indiana to whom this park belongs. It would also compete with private lodging development just a short drive from the park.

The Indiana Dunes State Park must remain a haven from commercial development, not leased out to promote such development. Therefore, the Porter County Chapter of the Izaak Walton League of America opposes the inn proposal as an unacceptable intrusion into this splendid resource and urges DNR to abandon this proposal.

See also this ILB entry from Jan. 25th, including questions about an environmental impact statement.

My thoughts. A comprehensive EIS needs to be prepared and made available to the public, and opened for discussion and comment, before this project moves beyond the talking stage.

(I speak as a native: I grew up a mile from the Dunes State Park, and worked there in the summers while in high school. The Dunes State Park is not in the middle of nowhere, where a "full service" inn might be of benefit. It is an area wisely preserved from development decades ago, at the northern edge of the increasing developed Porter County, and the adjoining Lake and LaPorte Counties, with a multitude of easily accessible inns, motels and restaurants.)

Posted by Marcia Oddi on Sunday, January 29, 2006
Posted to Environment | Indiana Government

Environment - Group tackles runoff at Lake Wawasee; Much more on Confined Feeding

"Group tackles runoff at Lake Wawasee" is the headline to this story today by Kara Hull in the Fort Wayne Journal Gazette. Some quotes:

Although he officially retired from the medical field in 1997, David Brandes willingly continues to care for one large patient: Lake Wawasee and the surrounding area.

Brandes, chairman of the Wawasee Area Conservancy Foundation and a neighbor of the state’s largest natural lake, becomes animated when he talks about the work the group is doing, often pointing his fingers and using hand gestures while visiting and describing several project sites recently near his lakeside Syracuse home.

Talking with Cromwell farmer Kevin Davidsen and trying to persuade him not to build a confined feeding hog farm on his property less than a mile from the east edge of the lake has been Brandes’ latest task. The group fought against Davidsen when he applied for the permit in February 2004 that Davidsen ultimately received.

For now, Davidsen has agreed to hold off building the hog farm after he learned from experts that manure created on his farm could destroy the lake he’s grown up near.

The dangers of mixing manure and water – whether it’s drinking water from wells or flowing in lakes and streams – is often the first concern people cite against large farming operations, often called confined-feeding operations.

While some local officials say contamination is often an exaggerated threat, farms’ opponents say that the Indiana agency that is supposed to monitor these farms is too trusting.

This is a lengthy and knowledgeable article that should be read in full.

The Muncie Star-Press has a story today by Seth Slabaugh on how the "number of applications to build or expand industrial-style swine farms [has] increased considerably last year in Jay, Randolph and Wayne counties." More:

Since Jan. 1, 2005, applications have been filed with the Indiana Department of Environmental Management to build or expand four confined feeding operations (CFOs) and 17 concentrated animal feeding operations (CAFOs) to create new capacity for more than 100,000 sows, nursery pigs and finishing pigs in the three counties.

Fifteen of the 21 applications came from Jay County, four from Randolph County, and two from Wayne County.

The 21 applications in the three counties are the most in any year during the period 1996 through 2005, which is how far back The Star Press asked IDEM to search its database. * * *

Some of the applicants are from Ohio, North Carolina, and Iowa. On Jan. 17, IDEM granted permission to Goldsboro, North Carolina-based Ivey's Spring Creek Farm of Indiana, to build an operation containing 700 sows, 2,000 nursery pigs and 4,000 grow-to-finish hogs at 4105 N. Ind. 1, Hagerstown. * * *

One of the reasons for a company like Goldsboro to move to Indiana is that in North Carolina, "they just mushroomed, exploded their hog populations before the state caught up with the need to regulate the environmental consequences of that," Hurt said. "So North Carolina placed a moratorium on any further expansion, which is reasonable."

On Jan. 18, IDEM issued a permit for Natural Pork Production II, Harlan, Iowa, to build a CAFO with a total capacity of 17,072, including 2,400 weaned pigs, 11,712 gestating sows, 2,160 lactating sows, 600 replacement gilts and 200 cull sows. The facility, which would generate an estimated 8.5 million gallons of manure a year, will be north of Williamsburg near the Randolph-Wayne county line.

Each gestating sow can produce about 20 pigs a year, Hurt said, meaning Natural Pork would produce more than 230,000 pigs a year. Natural Pork is part of Audubon, Iowa-based AMVC, the nation's 13th largest pork producer.

Andy Miller, director of the Indiana State Department of Agriculture (ISDA), was among the supporters in the audience last summer when the Wayne County Board of Zoning Appeals approved the Natural Pork Production project.

ISDA this year announced a strategic plan that included a goal of doubling Indiana's pork production. As of Dec. 1, 2004, Indiana trailed Iowa, North Carolina, Minnesota, and Illinois in the number of hogs on hand.

Officials in Randolph County have decided not to adopt any local zoning ordinances to regulate CFOs or the larger CAFOs. "We decided to pass on that," said Randolph County Commissioner Ron Chalfant, a farmer. "We're just going to let the state take care of it. A number of farmers said they were just over-burdened now with state regulations. If the county adds to those, it makes it difficult to entice livestock entities."

"Bovine battle brewing: Neighbors fear impact of planned mega-dairy near Lakeville" is the headline to this story in Saturday's South Bend Tribune. Some quotes:
As longtime friends and neighbors unite against him, Dave Schrock admits he's paying a steep price for partnering with a Dutch farmer to build a sprawling mega-dairy east of Lakeville.

"It's sad. Very sad. It's not a happy day for me," Schrock said. "I know I've lost friends over this, but I think it's good for the community and it's good for agriculture. Every industry in America is upsizing and consolidating. If I don't make a stand now and say, 'This is the future of farming,' my children are not going to be able to farm."

Schrock and Peter van der Vegt, a fifth-generation dairy farmer from Netherlands, want to build and operate a 3,500-head dairy operation on 103 acres Schrock owns on Riley Road, west of Ironwood Road. They say today's dairy industry requires producers to be more efficient and maximize volume, and they promise that area grain farmers who sign on to supply feed for the cows will net 10 percent to 15 percent more income, partly by cutting shipping costs.

The dairy would store up to a year's worth of manure the cows generate in a 10 million-gallon concrete lagoon, spreading it as fertilizer on the surrounding fields. Opponents argue that the area's relatively high water table could allow the manure to seep into groundwater. * * *

[A]s of now, commissioners have little authority over the operations, which are regulated by the Indiana Department of Environmental Management and the U.S. Environmental Protection Agency. Neal is lobbying the County Council to quickly pass an ordinance requiring any land use that needs IDEM approval to also obtain a special use permit from county officials.

Marshall County officials are considering such an ordinance, as a Mishawaka farmer plans a large hog CAFO there.

IDEM's administration decides whether to hold a public hearing or meeting in such cases. State law limits the agency's scope to safeguarding surface water quality. That leaves out concerns over roads, air pollution and property values, Neal said.

South Bend's WNDU 16 also had a story yesterday, titled "Mishawaka developer causes unrest in Marshall County," about "a Mishawaka developer who wants to use his land for a hog farm, bringing 8,000 hogs to the neighborhood."

The mention of North Carolina
recalled to me some stories from years back. On Oct. 17, 1999, the NY Times published a nearly 2,000 word story (paid subscription required) headlined "Hurricane Reveals Flaws in Farm Law as Animal Waste Threatens N. Carolina Water." Once you read these excerpts, you will see why I remembered it so vividly:
KENANSVILLE, N.C. - In the aftermath of Hurricane Floyd, loose regulations that helped eastern North Carolina become the nation's biggest producer of turkeys and the second biggest of hogs have come back to haunt the state's public health and its environment.
Officials say that the September storm that hit the region harder than anywhere else, killing 48 people and leaving behind more than $1 billion in largely inescapable damage, also left a vast amount of damage that might have been averted: incalculable and continuing hazards in ground water, wells and rivers from animal waste, mostly from giant hog farms.

For years, farmers had been free to build hog and poultry operations as big as they wanted and wherever they liked. They were allowed to dig huge pits for animal waste, without regard to the water table or the health and sensibilities of neighbors.

In the hurricane, feces and urine soaked the terrain and flowed into rivers from the overburdened waste pits the industry calls lagoons. The storm killed more than two million turkeys, chickens and livestock in the region, and waste from the farms is expected to keep leaching into the water supply until next spring. * * *

In Duplin County, of which Kenansville is the seat, and across the rest of North Carolina east of Interstate 95, Hurricane Floyd has exposed the hazards of one of farming's great innovations of the 1980's and 1990's and the political liaisons that helped it develop. That is the practice of industrial farming, or raising livestock and poultry in close and confined quarters.

It allows farmers to raise thousands of hogs on land where they could once raise only scores and gives them tight and automated control over their livestocks' diets, health and growth. The farmers raise pigs under contract to major hog processors, known in the business as ''integrators,'' like Murphy Family Farms of Duplin County. The processor supervises the construction of barns, supplies the pigs and their feed and medicine and hauls them off to slaughter after the four or five months it takes for them to grow to 250 pounds.

In eastern North Carolina, this assembly-line production of hogs and turkeys has come as a savior for tobacco farmers whose incomes plunged with the decline in smoking. But Hurricane Floyd has stirred controversy over a means of capturing the wastes of a hog, which produces four times that of a human.

Human waste in North Carolina and most of the nation must be captured in public sewers and private septic systems to prevent the spread of disease. But the state lets the waste of hogs, which carry many human diseases, be captured by nothing more than a cesspool. * * *

The state had few rules for industrial farming until 1993, when it enacted a law to prohibit livestock farms from intentionally contaminating the public water supply. Then, two years ago, it put a moratorium on hog farms. * * *

Even before the hurricane there had been flooding and ruptures of the waste pits that contaminated rivers and killed millions of fish. And with public fury rising over the acrid, ammonia-laden odors from the waste lagoons, which carry for more than a mile, Governor Hunt had begun to call for restraints on an industry he had long allowed free rein.

Mr. Hunt, a Democrat, backs the Legislature's 1997 moratorium on construction of new and expanded lagoons, which remains in effect until July 2001. In April, the Governor proposed a plan to phase out the lagoon system over 10 years while engineers devise safer methods for disposing of the hog waste. * * *

Nowhere is the industry more entrenched, or its political power stronger, or the hurricane's farm damage greater, than in Duplin County. With 48 hogs for every resident, the county has the densest concentration of hogs in the country.

The rectangular lagoons of reddish-brown waste, many of them covering more than an acre, dot the flat countryside. Enclosed within dikes, the lagoons sit behind rows of single-story, gray-metal structures as large as football fields that house the hogs. The hog waste flows through slotted boards in the barns to a cellar, and then is carried by plastic pipes to a waste lagoon. The lagoons now and then burp with the bubbles that mark the natural transformation of feces and urine to the nutrients that farmers spray over pastures and fields of corn, tobacco, soybeans and rye.

Posted by Marcia Oddi on Sunday, January 29, 2006
Posted to Environment

Ind. Gov't. - Indianapolis Star today reports on high cost of heath insurance and problems with Medicare drug plan

"Coverage denied: The alternatives are few when health insurers don't want you" is the headline to this story by Daniel Lee, on the front page of the Indianapolis Star business section today. The subject is the difficulty of obtaining, and the high cost of, health insurance for people below 65 who have taken early retirement.

On the front page of today's Star is this lengthy story by Tammy Webber headlined "Medicare plan gives Hoosiers a headache: Confusion, frustration mar start of prescription-drug benefit." This problem has been reported widely in papers from other states, but this is the first Indiana coverage I recall seeing. Some quotes from about half-way into the story:

State defers to feds. For now, Gov. Mitch Daniels has declined to step in.

State Sen. Vi Simpson, D-Ellettsville, called on the governor to make state money available temporarily to help cover drug costs until the glitches are worked out, just as more than 20 other states have done. The federal Centers for Medicare & Medicaid Services has agreed to reimburse states.

But Indiana officials don't think the problem is extensive and probably will let the federal government resolve the issues, said Dennis Rosebrough, spokesman for the Family and Social Services Administration, which oversees the state's Office of Medicaid Policy and Planning.

"People going days without necessary medication appears to be less widespread in the state of Indiana" than other states, he said.

Rosebrough said his agency had no hard data to support its observation but came to the conclusion after talking to pharmacists, long-term care facilities and its Medicaid office. "The situation in Indiana is not to the point there needs to be a major policy (shift)," he said.

Simpson and Indiana senior advocates disagree, saying hundreds, if not thousands, of Hoosiers -- especially the poor -- have left pharmacies without needed drugs. Furthermore, they say, pharmacies that are dispensing drugs anyway are bearing an unreasonable financial burden.

"At this point in time, the state has not declared this an emergency situation, which is very sad," said Barbara Burcham, who coordinates Medicare services for the Indiana Association of Area Agencies on Aging and its 16 member offices.
She said some people have used their rent money to pay for medications, while others have called the association's offices in a panic.

Burcham suggested the state could make the money available to the agencies on aging, which could distribute the money to needy Medicare recipients. "When it comes to problems with one individual who needs a medication in order to survive and not have to be rushed to the emergency room, it becomes critical," Burcham said. "Adding even more people makes it more of a snowball going downhill."

Here are some quotes from an AP story from Jan. 24th describing the extent of the problem:
Federal officials said Tuesday they would reimburse states that bought medicine for senior citizens and disabled people who could not get help through the new Medicare drug benefit.

The benefit began on Jan. 1. Under the program, Medicare beneficiaries enroll in private plans that get a government subsidy to provide prescription drug coverage.

But the program got off to such a difficult start that more than 20 states opted to continue emergency coverage for some of their low-income residents. Those residents often didn't show up in pharmacists' computers as being enrolled in a plan. On other occasions, the residents were charged fees for their medicine that far exceeded what they were supposed to pay.

Indiana has not provided such emergency coverage.

See also these Washington Post stories from Jan. 14th ("The States Step In As Medicare Falters: Seniors Being Turned Away, Overcharged Under New Prescription Drug Program") and Jan. 18th ("HHS Works to Fix Drug Plan Woes: Widespread Difficulties With New Medicare Benefit Reported").

Posted by Marcia Oddi on Sunday, January 29, 2006
Posted to Indiana Government

Ind. Decisions - Billboard controversy is spotted in new venue

John Ketzenberger, business columnist for the Indianapolis Star, has an interesting column today titled "Billboard controversy is spotted in new venue" on the Pinnacle decision [see ILB entry here], mentioning that the Supreme Court has not yet decided whether to rehear the case. Here is some of what he writes:

You may recall the column I wrote in November [see ILB entry here] describing the city's effort to ban the billboards and Pinnacle Media's desire to keep them. The case turns on zoning law. Pinnacle applied for zoning permission in April 2000; a week later the city started changing zoning code to forbid the billboards. Meanwhile, 10 billboards were put up, and the court fight began.

Pinnacle won two lower court decisions that essentially determined zoning can't be changed in the time between a permit's filing and the project's start. But the Supreme Court sided with the city in November. Now it is deciding whether to take the rare step of rehearing the case.

A group of prominent business leaders -- including Simon Property Group, Duke Realty and the Indiana Builders Association -- desperately want the court to take another look. They fear local officials could use ordinance changes made in the time between a developer's application and actual construction to kill a project. "The idea that nothing is done before construction begins is absurd," said Jim Beatty, who represents the builders.

More from the column:
As the high court mulls what to do, Rep. David Wolkins, R- Winona Lake, entered the fray. On Wednesday, he inserted an amendment that would do what developers want. The bill he amended, House Bill 1120, cleared the House 91-0.

"This probably doesn't help the Pinnacle case," Wolkins said. "But it'll help prevent another one like it."

That's true, until a sharp lawyer gets his hands on the case.

[Note: HB 1120 concerns human trafficking; perhaps Ketzenberger means HB 1010, concerning eminent domain, which "cleared the house" 97-0. In that case, this would be the amendment Rep. Wolkins made affecting billboards.]

Two other, earlier ILB entries referencing Pinnacle may be found here and here.

Posted by Marcia Oddi on Sunday, January 29, 2006
Posted to Ind. Sup.Ct. Decisions | Indiana Government | Indiana Law

Ind. Law - Legal firm donated to Daniels campaign

"Legal firm donated to Daniels campaign" is the headline to a story today by Steve Walsh in the Gary Post-Tribune. Some quotes:

As companies across the globe line up to profit from the privatization of the Indiana Toll Road, the law firm of one of Gov. Mitch Daniels’ top political donors already is making money from the state’s plans.

The Chicago law firm of Mayer Brown Rowe and Maw LLP has presented the state with $196,136 in legal bills for consulting on the state’s bid for a long-term lease.

The firm, the largest in Chicago with 500 lawyers, clearly has experience. It put together the 2004 bid to sell a 99-year concession of the Chicago Skyway for Chicago Mayor Richard M. Daley — the first deal of its kind in U.S. history.

The firm also has connections. Mayer Brown is the law office of Dan Dumezich, the former state representative from Schererville, who has become a partner at the major Chicago firm. Since leaving the General Assembly in 2002, Dumezich also has become a top fund-raiser for Indiana Republicans, including Daniels.

Mayer Brown donated $10,000 to the governor’s campaign on Dec. 22, 2004. * * *

Daniels denies any connection between Dumezich’s fund-raising and the administration’s decision to sell a lease on the Toll Road. “That is not how we do business around here,” Daniels said. * * *

Schmidt [not further identified in the Post-Tribune story] and Mayer Brown are a subcontractor to Indianapolis law firm Ice Miller, which has the lead contract with the Indiana Finance Authority to compile an agreement to lease the tollway to a private investor.

According to the agreement, released by the Indiana Finance Authority, the state was required to approve all major subcontractors used by the Indianapolis-based law firm.

So far, Ice Miller, a contributor to both Democratic and Republican campaigns, has submitted three bills totaling $150,801, while Mayer Brown Rowe and Maw submitted one bill, totaling $196,136, dated Nov. 18. Office of Management and Budget Director Chuck Schalliol estimated the state’s legal bills could top $1 million.

Posted by Marcia Oddi on Sunday, January 29, 2006
Posted to Indiana Government | Indiana Law

Saturday, January 28, 2006

Ind. Law - Lafayette lawyer dies in house fire; fire strikes Terre Haute law office

The obituary in the Lafayette Journal & Courier begins: "Charles R. Deets III, 62, of rural Battle Ground, died early Thursday, Jan. 26, 2006, in a fire at his home." A related story: "Friends recall vibrant, young attorney."

"Investigation into fire at Ellis Law offices ongoing"
is the headline to this story in the Terre Haute Tribune-Star. Some quotes:

Terre Haute firefighters responded to a blaze Thursday evening at the five-story building at 518 Wabash Ave. The fire was mostly contained to the law firm’s second floor. * * *

Ellis stood in the street Friday morning as staff members of the law firm gathered to look at damage. He directed some staff members to rearrange court hearings for next week.

“234-9000 still works,” he said in reference to his heavily advertised law office telephone number. Calls to that number are being routed to an answering service, and then to staff members’ cell phones, Ellis said.

“We’re operating, but we don’t have a place yet,” Ellis said. “It may be an overzealous attempt, but I hope to be operating some place by Monday.” * * *

The fire also affected Ellis’ campaign headquarters, located in the building. Ellis is running on the Democratic ticket for prosecutor in the May primary election.

“I just recently made arrangements to have another staff member brought in to help Ellis Law continue to function to allow me to have more free time to get out and campaign,” Ellis said.

“We had set the campaign headquarters up and was preparing for a [campaign] kickoff. Certainly, I need to devote my time to getting Ellis Law back operating, not that I am going to neglect the campaign. Not that I am Superman, but I am going to attempt it all,” he said.

Ellis' announcement for prosecutor was reported here in the ILB earlier this week.

Posted by Marcia Oddi on Saturday, January 28, 2006
Posted to Indiana Courts | Indiana Law

Ind. Courts - Justice Rucker speaks to Lake County Bar Association

The Gary Post-Tribune reports today:

The Lake County Bar Association celebrated 20 years as an organization Friday night by hosting state Supreme Court Justice Robert Rucker.

Rucker, a longtime Northwest Indiana attorney before ascending to the bench, spoke to a crowd dotted with judges and prominent local trial attorneys about the importance of the legal profession maintaining its independence.

Rucker told the dinner audience at the Radisson Hotel at Star Plaza in Merrillville that recent “high visibility,” politically charged judicial decisions such as those connected to the 2000 presidential election and the Terri Schiavo case have undermined Americans’ trust in the judiciary.

“Judges should not seek the most popular view but seek to follow the law,” Rucker said.

“To bend to the will of the legislature is and should be called judicial activism,” the judge said. “Unfortunately, some now say it’s activism if they don’t like the ruling.”

Rucker also admonished the lawyers in attendance to act as “torch-bearers of freedom,” remaining vigilant for any infringements on constitutionally protected liberties.

Posted by Marcia Oddi on Saturday, January 28, 2006
Posted to Indiana Courts

Law - Chicago to pay $9 million in wrongful conviction; contrast with South Bend case

The Chicago Sun-Times reports today:

The city agreed to pay $9 million to a Chicago man wrongfully convicted of raping and robbing an elderly woman in 1993, and to undertake what could be a massive review of practices at the old Chicago crime lab.

The investigation into lab procedures came to light as the city announced its settlement with Lafonso Rollins, 30, who spent 11-1/2 years in prison but was released after DNA evidence -- collected as part of an appeal Rollins filed in 2000 -- cleared him.

The review could include any criminal conviction before 1995 where a DNA sample was taken but not used. * * *

Rollins, a former special education student who had no criminal record, was 17 when he was convicted.

He repeatedly told police, "I'm innocent," until they "hit him around a couple times" and he agreed to confess, Fioretti said.

At the press conference, Rollins said police used "scare tactics" and "put their hands on me" and "kept hittin' me" until "finally I asked them what happened. He [a detective] told me everything" to say in a confession, and Rollins signed a document written by an assistant state's attorney, he said.

"I was scared to death," he said. "I didn't want to go through it."

In prison, other inmates identified him as someone who'd raped an elderly woman, which led him to be treated more harshly than others, he said.

He said he'd "try to hold my dignity, my pride" during that time, though he admits to times he'd ask himself, "Did I do this?"

Rollins, who has been unable to find a job despite a pardon from Gov. Blagojevich, said he hopes to use the settlement to start a clothing line and publish a book.

But he's not celebrating.

"This isn't no lottery ticket," he said. "This is my life."

The Chicago Tribune reports, in a lengthy story:
The issue of police obtaining false confessions from innocent suspects as well as shoddy crime lab work have dogged Chicago police in other cases in recent years and have resulted in multimillion-dollar settlements of lawsuits brought by other wrongly convicted defendants.

In announcing the settlement, Georges said the city recently learned "there might have been a problem with how the old Chicago Crime Lab handled the case," referring to the lab that, in 1996, was taken over by the Illinois State Police.

Contrast this outcome with Alexander v. City of South Bend, noted in this ILB entry from Jan. 3, 2006.

Posted by Marcia Oddi on Saturday, January 28, 2006
Posted to General Law Related | Ind. (7th Cir.) Decisions

Ind. Gov't. - Still more on: Lawsuit seeks to block closing of Silvercrest [Updated]

The Louisville Courier Journal reports today on the arguments yesterday on the state's closing of Silvercrest Children's Development Center in New Albany. (Access yesterday's ILB entry here.} Some quotes from the story by Dick Kaukas:

Witnesses disagreed in Floyd Superior Court yesterday about whether the state's decision to close the Silvercrest Children's Development Center in New Albany would harm Indiana residents.

Seven parents with children being treated at the center argued that they were unable to find effective services in their communities. * * *

But witnesses for the State Department of Health, which announced in November that it would shut Silvercrest down when effective alternative treatment can be arranged for the children there now, disagreed. They argued that such children can receive more effective treatment in their communities.

The hearing was held in a lawsuit filed earlier this month by Silvercrest parents and a union representing center employees. * * *

After the day-long hearing, Special Judge Cecile Blau said there was too much evidence for her to issue a ruling from the bench, as she had been asked to do. But she said she would reach a decision "as soon as possible." * * *

The proceedings started with Mary Jane Lapointe, one of the plaintiffs' lawyers, arguing that the state was unconstitutionally usurping legislative powers by closing the center.

Lapointe said the decision to close Silvercrest was one that only the legislature could make. She cited "mandatory" language in the statute creating Silvercrest, outlining what the center was required to provide, to bolster her position.

Lapointe also told the judge that an act by the state that violates laws and the constitution, as she contended the closing would, in itself constitutes irreparable harm to residents. She said no other damage need be shown for an injunction to be issued against the closing.

The testimony from the parents and other plaintiffs' witnesses was presented as another argument in case Blau rejects the claim that only the legislature could lawfully close the center.

Representing the state was Steven Jackson, who rebutted Lapointe's argument by contending that other statutes give Monroe as the state health commissioner "complete administrative control" over Silvercrest, including the decision to close it.

In addition, Jackson said, Indiana standards for interpreting statutes say that decisions of an agency such as the health department should be respected by judges "if the agency's interpretation is reasonable."

Finally, Jackson said that the legislature has passed other statutes in which there is clear direction, requiring hearings and other steps before an institution is closed.

If the General Assembly had intended to reserve the right to close Silvercrest to itself, Jackson said, it would have said so. And he said it did not.

Also testifying for the state yesterday was Patricia Rogan, a special education professor at Indiana University. She said that sending students to centers like Silvercrest "is an outmoded model" and that it's more effective to treat them in their own communities, allowing them to stay home and attend the local schools.

But several witnesses for the parents, including Dr. Emily Stapp, a psychiatric consultant at Silvercrest, said there simply are no effective services in many communities.

If there were, she and other witnesses testified, there would have been no need to send students to Silvercrest in the first place.

[Update] The New Albany News Tribune has a report today by Chris Morris. Some quotes:
Mary Jane Lapointe, the counsel representing Silvercrest Children’s Development Center in New Albany, said Friday only the legislature has the ability to close the facility.

Steve Jackson, representing the State of Indiana, said Department of Health Commissioner Dr. Judith Monroe has that authority.

It will be up to Judge Cecile Blau to determine who is right.

Blau heard arguments for both sides Friday in Floyd County Superior Court in New Albany. After seven hours of testimony, Blau said she will review the testimony and documents and hopes to “make a decision” as soon as possible.

A group of parents, along with the American Federation of Municipal Workers, is seeking an emergency injunction to keep Silvercrest open. The Department of Health announced in November it planned to close the facility.

In the affidavit, the group states that since Silvercrest was established by the Indiana General Assembly, it can only be closed by the legislature.

“They have ignored a legislative mandate,” Lapointe said. “And this has nothing to with helping the children in the community. This has to do with saving money.”

The Department of Health made the decision to close Silvercrest after a study was conducted last summer by Family of Social Services Administration, the Office of Management and Budget, the state Department of Education and The ARC of Indiana. The study concluded that students need to move away from a facility-based program and moved back into the community. It also concluded that the $8 million annual budget at Silvercrest could be better spent helping more children than the 70 who are served annually at the facility.

Posted by Marcia Oddi on Saturday, January 28, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Government | Indiana Law

Friday, January 27, 2006

Ind. Decisions - Transfer list for week ending January 27, 2006

Here is the Indiana Supreme Court's transfer list for the week ending January 27, 2006.

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, January 27, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending January 27, 2006

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 January 27, 2006. 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 Friday, January 27, 2006
Posted to NFP Lists

Courts - Fascinating story on one Michigan judge's efforts to curb underage drinking

A lengthy story today in the Detroit Free Press about Judge Martone of Troy Michigan's 52-4 District Court and his efforts to curb underage drinking is well worth reading in full. [Thanks to How Appealing.]

Posted by Marcia Oddi on Friday, January 27, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues five rulings today

None involve an Indiana appeal. The five rulings are:Knudsen v. Liberty Mutual, concerning removal to federal court - granted; Curtis v. Timberlake, a prisoner appeal - remanded; USA v. Peters, which involved a unique Blakely argument - that failed; USA v. Carrillo, a criminal appeal with sentencing issues; and Texas Independent Producers v. EPA, a 16-page opinion by Judge Manion that includes a lengthy introductory summary (this decision addresses unresolved issues from a suit concerning a general permit issued by the Environmental Protection Agency (“EPA”) for storm water discharges) concluding:

We now hold that because of the exemption contained in the Energy Policy Act, those aspects of the General Permit that the Oil and Gas Petitioners seek to challenge do not apply to them. We therefore dismiss this petition for lack of standing.

Posted by Marcia Oddi on Friday, January 27, 2006
Posted to Ind. (7th Cir.) Decisions

Environment - Ash borers and septic systems in news

The Muncie Star-Press has a report today headlined "Ash borer burden shifted to homeowners" by Seth Slabaugh. Some quotes:

In November, the Indiana Department of Natural Resources announced that it planned to remove all ash trees within a half-mile radius of an infestation in seven trees.

But this past week, the agency announced a change in its program to eradicate emerald ash borer (EAB), a wood-boring Asian beetle that causes ash trees to starve to death. DNR will no longer cut down ash trees within a half-mile radius of an infestation.

"While the eradication program we were following was an excellent program and would have worked if we had the time and money to complete it, it was simply cost-prohibitive to continue," state entomologist Bob Waltz said in a news release.

Under the new plan, homeowners will be financially responsible for the care or removal of any ash trees on their property.

"This puts the decision about whether to try to save the tree or remove it on the homeowner's shoulders," said Jodie Ellis, exotics insects education coordinator at Purdue University. * * *

At a town meeting in early December, state officials told residents within the ash tree removal zone that the state would conduct a survey in preparation for the removal -- likely in December or January -- of all ash trees within a half-mile radius of the infestation.

EAB already has killed millions of trees in Michigan, Ohio, and Indiana, where it has been confirmed in LaGrange, Steuben, Adams, Randolph and Hamilton counties. If not contained and eradicated, the impact of EAB on ash in North America will be similar to that of chestnut blight and Dutch elm disease, which devastated woodland and urban forests in the 20th century, according to the U.S. Department of Agriculture.

The Fort Wayne Journal Gazette's Frank Gray has an article this week titled "Old septic system traps new homeowner" that anyone planning to purchase a house with a septic system should read.

Posted by Marcia Oddi on Friday, January 27, 2006
Posted to Environment | Indiana Government

Ind. Gov't. - More on: Lawsuit seeks to block closing of Silvercrest

On Jan. 4th the ILB quoted from a Louisville Courier Journal story "that a lawsuit has been filed by "a group of parents and the union representing state employees" to block closing of Silvercrest Children's Development Center in New Albany."

Douglass T. Davidoff (of the TRIB) reports that the hearing on the preliminary injunction is taking place today:

The case will be in Floyd County Superior Court starting at 9 a.m., but the judge is Cecile Blau of Clark County.

The parents and AFSCME are represented by McMains & Lapointe of Indy with Frank Mattox as local counsel. The state is represented by Baker & Daniels. They also have local counsel, but I do not know the name.
Here is a copy of the amended complaint, urging in Count I that Silvercrest cannot close without legislative action, and in Count II that the Silvercrest Advisory Committee’s statutory role was usurped, and concluding:
WHEREFORE, Plaintiffs request that the Court enter a preliminary and permanent injunction prohibiting Defendants from further implementing their plan to close Silvercrest Children’s Developmental Center.

Posted by Marcia Oddi on Friday, January 27, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Government | Indiana Law

Ind. Decisions - Court of Appeals posts two today

Sandy Everette v. Jim Everette involves the distribution of marital assets.

In In the Matter of J.D. Judge Sullivan writes:

Appellant, J.D., was adjudicated a delinquent child for committing Disorderly Conduct, a Class B misdemeanor if committed by an adult. Following a dispositional hearing, the juvenile court awarded guardianship to the Department of Correction but suspended her commitment. Upon appeal, J.D. claims the juvenile court erred in adjudicating her delinquent because the conduct implicated was protected speech and furthermore, evidence of that conduct should have been suppressed. J.D. also argues the court abused its discretion by ordering her to a suspended commitment in the Indiana Department of Correction. We reverse and remand.
And what was the "disorderly conduct" here?
J.D. testified that she and Deputy Gibbons discussed in Deputy Gibbons’s office the reasons behind her getting “written up.” One reason was that J.D. continually opened her door, even though the staff told her to close it. J.D. testified she told Deputy Gibbons that she could not breathe with the door closed, and that there were no windows in the room. Other complaints against J.D. which she and Deputy Gibbons addressed included J.D.’s not taking her glasses off and J.D. having kleenex in her room. J.D. testified that although she insisted to Deputy Gibbons that she would not comply with some rules, she never yelled or “cussed” at her. J.D. further claimed that Deputy Gibbons did not tell her repeatedly to stop talking. J.D. testified that she did not remember being read her Miranda rights. * * *

Although J.D. told Deputy Gibbons that she refused to cooperate with authorities, which could be construed as a comment on her own, private action, her comments were, on the whole, more than an expression that she could do “what [s]he wants, when [s]he wants.” See Johnson, 719 N.E.2d at 449. J.D.’s comments were largely an objection to the rules and living conditions of the Guardian Home, where she claimed she was being required to live in a closed room where she was unable to breathe. As such, J.D. was making a commentary on the legality and appropriateness of the rules and rule-enforcement in the Marion County Guardian Home and was therefore engaged in protected political speech.

Posted by Marcia Oddi on Friday, January 27, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - Editorials: Health insurance perk should be canceled

Two more papers have strong editorials today on the Indiana General Assembly's health care perks.

From the Marion County Tribune, an editorial headlined "Health insurance perk should be canceled: Legislature should repeal the entire bill that enabled the plan." After noting that Speaker Bosma has announced that he will unilaterally revoke the plan for House members elected or reelected in 2006, the editorial continues:

Hoosiers should not have to count on orders from the House speaker and the Senate president pro tem. Those orders can be changed easily.

The whole plan, including the enrollment authority granted the speaker and president pro tem, should be repealed. That is why House Bill 1309 should be brought out of committee and passed by both the House and the Senate.

The whole issue caught people's attention when state Auditor Connie Nass said the plan was expected to cost the state $306,000 a year by 2008.

Given the state's financial condition and especially the problems with Medicare funding, there shouldn't be much discussion.

That's in addition to the embarrassment factor. Considering the financial demands health insurance places on so many constituents, as well as those constituents who can't even afford it, legislators should, in theory, at least, be ashamed to sign up.

Some might argue that the free health insurance was an incentive to get people to consider public service. Maybe, but members of the General Assembly should not be treated differently than other state employees, and this isn't available to all of them. (And before someone gets a bright idea, it shouldn't be made available to all state employees, either.)

No one enjoys paying higher health insurance premiums. But taxpayers should not be saddled with another government cost that easily can be avoided.

The perk was ridiculous when it became law in 2002, and nothing has changed that. HB 1309 should become law, and the health insurance perk should become history.

The Elkhart Truth writes:
It's just one of those things that doesn't look fair to regular folks.

Lifetime health care benefits to former state lawmakers and their family members, including ex-spouses, subsidized by Hoosier taxpayers? Yes, it exists right here in the state of Indiana.

Give credit to House Speaker Brian Bosma, who wants the practice to stop. He changed the rules last week so that anyone elected or re-elected to the Indiana House of Representatives this November would have to pay the full cost without state subsidy after leaving office and they would lose most coverage when they are eligible for Medicare.

Since 2002, anyone who served a day more than six years and who either retired or lost re-election were eligible for state health insurance for themselves and their families for life at a locked-in premium, regardless of cost. About 25 former members from both chambers are on the plan right now.

Most other state employees have to pay the full cost of their insurance upon retirement, so legislators are saving as much as $12,800 over what other retirees are paying for the same type of coverage.

Almost a year ago, state officials said the program costs more than $250,000. Part of the problem is, no one knows exactly how much it's costing taxpayers. State Auditor Connie Nass has proposed an annual actuarial study of the program so that it can be included in required federal financial reports of unfunded liabilities.

Bosma's actions don't impact the Senate and don't keep future speakers from bringing back the perk. State Rep. Troy Woodruff, R-Vincennes, has filed a bill to repeal the laws that allowed legislative leaders to implement the plan. Bosma killed the bill last year and it has been assigned to a committee where it will likely see the same fate this year.

Shame on Senate President Pro Tem Robert Garton, a long-time Republican legislator himself, who wants to hang on to the old ways. He helped implement the plan back in 2002. While the Senate is considering some changes, they are not expected to be as severe as those made by Bosma.

The Indiana General Assembly is supposed to be considered a citizen Legislature, so it seems like a huge contradiction that lawmakers would receive perks that their constituents don't even come close to enjoying, yet have to foot the bill for.

The plans should be eliminated permanently in both the House and the Senate. Serving in the Legislature shouldn't entitle anyone to special treatment on health insurance for which most average Hoosiers have to pay a hefty premium.

[For earlier related ILB entries, select "Legislative Benefits" from the list of categories in the right column, or by selecting "Legislative Benefits" in the line directly below this entry.]

Posted by Marcia Oddi on Friday, January 27, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Gov't. - Ferdinand clerk lauded for access to records; ILB has no success in obtaining Floyd County record

Ferdinand clerk lauded for access to records. An AP story today by Keith Robinson that appears in both the Fort Wayne Journal Gazette and the Indianapolis Star reports that:

Indiana’s largest newspaper association honored Ferdinand Town Clerk-Treasurer Bev Schulthise for her consistent record of providing public documents to the public.

The Hoosier State Press Association on Thursday gave her the 2005 Frank O'Bannon "Sunshine Award," created to emphasize open meetings of government bodies and ready access to public records. The award is named for the late Gov. Frank O'Bannon, an advocate of open government. * * *

Schulthise, clerk-treasurer for 17 years, "truly understands and respects Indiana's open door laws and believes that openness in government is not a privilege but a given," Kathy Tretter, the editor and co-publisher of The Ferdinand News who nominated Schulthise for the award, said at a luncheon.

ILB has no success in obtaining Floyd County record. In this entry from Tuesday, Jan. 24th, the ILB reported on a long-time dispute in New Albany over the effect of a reversionary clause in a deed. The entry ended with:
The ILB will try to obtain a copy of this trial court ruling and, if successful, will post the link here. Note that Floyd County has its court record information online and I was able to quickly locate the case name and summary. The case name is Jensen et al v. City of New Albany.
I'm sorry to report, however, that the ILB has had no response at all to a request emailed that morning to the Floyd County Clerk.

Posted by Marcia Oddi on Friday, January 27, 2006
Posted to Indiana Government

Ind. Law - Redistricting bill passed House, future in Senate cloudy

Yesterday the Louisville Courier Journal had a story (see ILB entry here) headlined "Garton pans redistricting bill: Senate leader says change not needed." Today the LCJ reports, in a story by Lesley Stedman Weidenbener, that the bill (HB 1009) has passed the House. Some quotes:

Voting largely along party lines yesterday, the Republican-controlled House approved a bill that would create a bipartisan commission to draw legislative district maps after each 10-year census.

House Bill 1009 requires lawmakers to vote on the commission's recommendation, but its supporters say it would still take the politics out of redistricting. * * *

HB 1009 requires the commission to create districts based on population and compactness, with an emphasis on keeping communities within one district where possible.

The five-member commission would have one appointee each from party leaders in the House and Senate. The chief justice of the Indiana Supreme Court would appoint the chairman.

Democrats say the commission would violate the Indiana Constitution, which calls on lawmakers to handle redistricting. Also, the involvement of the chief justice could cause a conflict if the maps are the subject of a lawsuit, said Rep. Ed Mahern, D-Indianapolis.

Senate President Pro Tem Robert Garton, R-Columbus, said this week that he's not enthused about the legislation.

Niki Kelly reports in the Fort Wayne Journal Gazette:
Partisan beliefs coursed through a debate Thursday evening about whether the state should move the task of drawing political districts to a bipartisan commission, a concept endorsed 54-43 by the House.

The vote was bipartisan, with three Democrats supporting the plan, which would set up a Republican-controlled commission for the foreseeable future. All northeast Indiana’s Republican members voted “yes,” as did Rep. Win Moses, D-Fort Wayne. Rep. Ben GiaQuinta, D-Fort Wayne, voted “no.” * * *

Senate President Pro Tem Robert Garton, R-Columbus, said Wednesday he is “not enthused” about the prospect of turning over the task to a commission. “Politics is still going to play a part no matter what kind of commission you appoint,” he said.

Some supporters have said the change would make some of the state’s legislative races more competitive because they would not be drawn in such a way as to protect incumbents.

But Garton questions how much more competitive the House races could be, noting the chamber has tied twice and in recent years control has been decided by a maximum three- or four-seat spread.

He said that through the years in both the House and Senate different parties have drawn the maps and the opposite party has gained control during that decade on several occasions. “It swings back and forth, back and forth,” Garton said.

"Bipartisan commission would draw maps beginning in 2011" is the headline to this story in the Indianapolis Star by Mary Beth Schneider. Some quotes:
House Speaker Brian C. Bosma, R-Indianapolis, told lawmakers nothing they do this session will have greater long-term impact on the state than reforming the way legislative districts are drawn. "There is little this body does that's more important than drawing legislative maps," he said.

He and other lawmakers said the maps drawn by both parties in the past were designed to protect political power rather than to provide fair representation in logically shaped districts. "When you look at the bizarre shape of the districts, you can see just how stilted the process is," Bosma said.

Posted by Marcia Oddi on Friday, January 27, 2006
Posted to Indiana Law

Ind. Law - Bill restricting use of eminent domain passed House

Updating this ILB report from Jan. 10th, the bill restricting the use of eminent domain bill (HB 1010) has now passed the House.

"House OKs eminent domain limits" is the headline to this story by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

Lawmakers hopped on the anti-eminent domain bandwagon Thursday, voting unanimously in the House to restrict the use of condemnation for private profit.

Hoosiers have shown more concern over the use of eminent domain since a key U.S. Supreme Court decision came down last year.

That pressure gave Rep. Dave Wolkins, R-Winona Lake, the support he needed to pass House Bill 1010, which now moves to the Senate for consideration.

He told his colleagues about a letter he received from an elderly South Bend man who has lived in the same home for almost 60 years. He went to a meeting recently and was told the city was taking much of one neighborhood through eminent domain.

So far, the highest offer for any of the homes on the street is $40,000. “That’s not right,” Wolkins said with a quaver in his voice. “I ask you to help me solve this problem.”

The Louisville Courier Journal has this report by Lesley Stedman Weidenbener. Some quotes:
Wolkins acknowledged that the bill will make economic development more difficult, something that leaders of cities, towns and counties are concerned about. But he said that in those cases governments will just have to use blighted property and be prepared to pay more for the land.

In fact, HB 1010 requires that governments pay homeowners 150 percent of the value of their property (rather than 100 percent) if the land will be used for a private development. Plus, governments must pay legal and relocation costs.

Farmers would get 125 percent of the value of their land, plus other costs. Businesses would be reimbursed just the usual 100 percent of their value, but governments would be forced to pay damages as well, which could include lost wages and income.

Posted by Marcia Oddi on Friday, January 27, 2006
Posted to Indiana Law

Ind. Law - More on: Anti-gay rights effort dies after brouhaha

Yesterday's Fort Wayne Journal Gazette story (see ILB entry here) was headlined "Anti-gay rights effort dies after brouhaha." Today the Journal Gazette has an editorial headed "A revealing stunt" about the inciduent. It beginss:

An ugly episode on the Indiana House floor ended with a whimper Wednesday, but it did not – and should not – go unnoticed. It spoke volumes about the motives of some who claim devotion to conservative ideals.

Rep. Jeff Thompson’s amendment to an eminent domain bill would have banned Fort Wayne and other cities from enacting anti-gay discrimination ordinances. That’s right – a state lawmaker tried to strip from local governments the authority to set local employment rules.

Posted by Marcia Oddi on Friday, January 27, 2006
Posted to Indiana Law

Thursday, January 26, 2006

Ind. Courts - More on: HB 1419, to change the appeals court selection process

As reported in this ILB entry yesterday, HB 1419, the effort to change the appeals court selection process, is dead.

As you can see by looking at the General Assembly's page for HB 1419, the controversial majority amendment, which would have changed the way of selecting and retaining appellate judges and justices, was never filed and is not available online. The minority amendment, proposing a study, was filed.

Although the proposal is now reportedly dead for the session, the ILB has obtained a copy of the language of the proposal and posted it here.

Posted by Marcia Oddi on Thursday, January 26, 2006
Posted to Indiana Courts | Indiana Law

Ind. Courts - Perry County voters will decide a contested primary race for circuit court judge

The Tell City-Perry County News reports today, in a story by Vince Luecke:

For the first time in decades, Perry County voters will decide a contested primary race for circuit-court judge.

Deputy Perry County Prosecutor Lucy Goffinet filed Monday for Indiana's 70th judicial circuit, handing a challenge to incumbent Judge and fellow Democrat James McEntarfer.

In the final year of his first six-year term, McEntarfer told The News Wednesday he will seek re-election to a second six-year term. Candidates have until Feb. 17 to place their names on Indiana's May 2 primary election.

A Cannelton native, Goffinet has been chief deputy prosecutor since 2004 and has experience as a deputy prosecutor in two other southwest-Indiana counties. She was a deputy prosecutor in Vanderburgh County from 2001 to 2004 and later served as a deputy prosecutor in Warrick County before accepting her job in Perry County. * * *

Serving as the county's judge, Goffinet said, has long been one of her career goals. “In my opinion, goals should be sought after no matter what the age and it has always been my goal to work in the Perry County Prosecutor's Office, and eventually become the Perry Circuit Court Judge,” Goffinet said. * * *

Contested races for county judge have been rare over the past three decades. In the May 1962 primary, David Huber of Cannelton beat fellow Democrat U. Marlin Ewing. Former Judge David Evrard, also a Democrat, beat incumbent Republican John Werner by 197 votes in 1970 and Evrard survived two challenges by Republican Lloyd Whitmer in 1976 and 1982.

Posted by Marcia Oddi on Thursday, January 26, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals reverses malpractice insurance ruling

In Indiana Insurance Guaranty Association v. Bedford Regional Medical Center, the issue was whether IIGA is obligated under the Indiana Insurance Guaranty Act to pay a claim for the lost wages of a deceased claimant. Judge Crone writes:

The Indiana Insurance Guaranty Association (“IIGA”) appeals the trial court’s entry of summary judgment in favor of Bedford Regional Medical Center (“BRMC”). We reverse. * * *

In sum, we conclude that Section 7(a)(i)(1) of the Act is ambiguous and, therefore, requires construction. The legislative intent, as stated in the Act, is to avoid excessive financial loss to claimants or policyholders because of the insolvency of an insurer. We further conclude that the legislature intended to provide less protection to claimants under the Act than was otherwise provided by the Model Act. Thus, the legislature intended for claimants and policyholders to bear part of the risk of loss. Section 7(a)(i)(1) of the Act limits coverage for bodily injury or death to amounts actually lost. Given the common and ordinary meaning of “actual” and the legislative intent behind the Act, we hold that IIGA is not obligated under the Indiana Insurance Guaranty Act to pay a claim for the lost wages of a deceased claimant.

Posted by Marcia Oddi on Thursday, January 26, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Courthouse renovation costs exceed expectations

"Courthouse renovation costs exceed expectations" is the headline to a detailed story dated 1/24/06 in the Terre Haute Tribune-Star by Howard Greninger. Some quotes:

An interior renovation project of the Vigo County Courthouse will cost more than $10 million, higher than originally estimated but still within a manageable budget, county officials say.

Early figures of the renovation were about $8 million. The project’s total cost in July 2004 was estimated at more than $9.1 million. The project, expected to take 18 months to complete, now is projected at $10.5 million, John M. Hanley, operations manager for Construction Technology Associates, told the Vigo County Board of Commissioners on Tuesday.

The company serves as construction manager for the county.

The cost is paid from a cumulative capital development fund, supported by property taxes, and from a more than $5.5 million bond issue for the project. At $10.5 million, it is about $500,000 higher than existing funds. * * *

The county already has paid more than $4.7 million of the total project, largely on costs for new heating, cooling and electrical systems.

Reasons for the cost increase include a more than six-month delay in starting the project. Commissioners, after looking at several locations, rented a building at Sixth Street and Wabash Avenue to store bound records from the courthouse and have them digitally recorded.

Commissioners also relocated the courthouse offices of public defender, voter registration and Council on Domestic Abuse. Moving the records and departments has cost about $600,000. During that time, cost of labor, fuel and material increased.

Following additional details, the story concludes:
In addition, a $24,821 clock and bell repair project was added to restore a two-ton bell made in 1887 at a cost of $2,500. Col. Francis Vigo, after whom the county is named, in his will gave $500 from his estate for the courthouse bell.

Hanley plans to rebid work for historic painting and stencil work and marble, separating the work into four separate projects. Historic painting, to cut costs, has been scaled back to include public corridors, stairwells and courtrooms only, Hanley said.

County Council President Robert Hellmann reviewed figures Tuesday, saying the project, expected to be completed mid-2007, “appears to be on track.”

The courthouse at Third and Cherry streets is the third one in the history of Vigo County. Construction began in 1884 and was completed in 1888 at a cost of $443,000.

Two months ago, the Trib-Star had another story, headlined "Courthouse restoration bids higher than expected: Historic finish work may have to be re-bid, construction official says." See the ILB entry from 11/18/05 here.

Posted by Marcia Oddi on Thursday, January 26, 2006
Posted to Indiana Courts

Ind. Law - Dubois plans ordinance on adult businesses

The Louisville Courier Journal reports today, via the AP, that:

JASPER, Ind. -- Dubois County officials are considering an ordinance to make it more difficult for an adult-entertainment business to open.

Since it is illegal to ban such businesses, the ordinance is aimed at creating detailed regulations for operating one. * * *

The commissioners said they had been considering an ordinance since November, when officials of neighboring Spencer County began battling the Love Boutique -- a 24-hour adult-entertainment business that opened at U.S. 231 and Interstate 64.

Dubois County Attorney Art Nordhoff presented the ordinance to the Board of Commissioners Monday.

It would establish rules regarding business and employee licenses, inspections, hours of operation and consequences for not following state regulations.

It also states that adult-entertainment businesses must be located at least 1,000 feet from churches, elementary or secondary schools, day-care centers, public parks or any home in the county.

"That is not necessarily zoning," Nordhoff said. "That can be (classified under) safety matters."

Posted by Marcia Oddi on Thursday, January 26, 2006
Posted to Indiana Law

Ind. Law - Anti-gay rights effort dies after brouhaha

"Anti-gay rights measure dies after brouhaha" is the headline to this brief story today by Niki Kelly in the Fort Wayne Journal Gazette.

Mary Beth Schneider of the Indianapolis Star has this story, headlined "Gay rights plan shelved: Sponsor withdraws amendment that would overturn anti-discrimination ordinances."

Gary Welsh of Advance Indiana had extended coverage of this story in two entries yesterday, here and here.

Posted by Marcia Oddi on Thursday, January 26, 2006
Posted to Indiana Law

Ind. Courts - Fort Wayne Journal Gazette editorializes on "Misguided power grab"

"Misguided power grab" is the headline to this strong editorial this morning in the Fort Wayne Journal Gazette about the now-withdrawn House Rules Committee effort to rewrite the judicial nominating process for appellate judges. Some quotes:

Selecting judges will never be entirely removed from politics, but Indiana’s system of choosing its state Supreme Court justices and appeals court members is a sound procedure that Hoosiers approved in a referendum. This week, in an act of brute political force that usurped the proper legislative process, the House Rules Committee hastily voted to undo the reasonable, fair system that is in place.

Indiana vastly improved its method of choosing its high court judges in 1970, switching from elections to an appointment system. The current system, which voters approved in a constitutional amendment referendum, calls for a judicial nominating commission to choose finalists. The governor appoints a new Supreme Court justice or appeals court judge from the finalists. Voters choose whether to retain each judge every 10 years.

The bill’s author, Ralph Foley, R-Martinsville, doesn’t like the fact that because Democrats controlled the governor’s office from 1989 through 2004, most of the judges on the high courts are Democrats. Foley, cynically and disingenuously, argues his bill would reduce the politicization when it, in fact, would make the process far more political. * * *

Foley and his fellow Republicans on the rules committee wrongly bypassed the House Judiciary Committee, the proper forum for the bill. And the legal community had very little time to consider the language or prepare for the so-called committee hearing because it was inserted into a blank bill, House Bill 1419.

The committee adopted the measure on a straight party-line vote, with Republicans in support and Democrats opposing. It’s difficult to find a problem the Republicans are seeking to fix. Indiana’s high courts have been remarkably apolitical in their decisions, and certainly more conservative than liberal.

Already in control of the governor’s office and both houses of the legislature, Republicans are now seeking to exert more influence over the third branch, the judiciary.

The bill “flies in the face” of the separation of powers, said Allen Superior Court Judge Stan Levine. He attended the committee meeting this week and spoke on behalf of the Indiana Association of Judges, which opposes the measure. “This is a step backward,” Levine says.

For more, start with this ILB entry from yesterday, Jan. 25th.

Posted by Marcia Oddi on Thursday, January 26, 2006
Posted to Indiana Courts

Ind. Gov't. - Garton pans redistricting bill

"Garton pans redistricting bill: Senate leader says change not needed" is the headline to this story by Lesley Stedman Weidenbener in the Louisville Courier Journal today. Some quotes:

Senate President Pro Tem Robert Garton said yesterday that he's not keen on a proposal that would turn legislative redistricting duties over to a bipartisan commission.

Garton, R-Columbus, said the current system — in which members of the General Assembly draw district maps for their respective chambers — works well and has produced competitive races, especially in the House where Democrats and Republicans have repeatedly traded the majority.

"I'm not enthused about" the bill, Garton said. "Regardless, that's five years away -- when the next redistricting will take place."

As Senate President Pro Tem, Garton gets to decide where the bill will be assigned and influence whether it gets a hearing.

More from the story:
Garton said he's willing to review and consider the bill but he made no promise that a committee would hear or vote on the legislation.

He said elections over the past four decades show that districts are now competitive.

Republicans hold a 32-18 majority in the Senate -- one short of the number needed to have a quorum whether Democrats show up or not. In 1989, however, the GOP had just a one-seat majority. Democrats haven't controlled the chamber for nearly 30 years.

In the House, however, the parties have often traded control. Twice -- after elections in 1988 and 1996 -- the body was split 50-50. Republicans are now in the majority after winning control in 2004.

Still, critics say that only about a dozen of the 100 House seats -- and even fewer of the 50 Senate seats -- are actually competitive and determine control of the chambers.

For background, start with this Jan. 20th ILB entry.

Posted by Marcia Oddi on Thursday, January 26, 2006
Posted to Indiana Government | Indiana Law

Wednesday, January 25, 2006

Ind. Courts - HB 1419, to change appeals court selection process, is dead [Updated]

The minority committee report on HB 1419 was filed on Monday, shortly after the meeting of the House Rules Committee which passed out the rewritten bill by a vote of 6-4. See roll call. But the majority committee report, with the new guts of the bill, was never filed. Today I began efforts, to no avail, to find out why.

The Indianapolis Star's Mary Beth Schneider did find out why, and has a just-posted story on the Star website. Some quotes from the story:

House Speaker Brian Bosma, R-Indianapolis, said he quashed the proposal. Democrats had called the legislation an attempt by Republicans, who already control the executive and legislative branches, to seize control of the judicial branch as well.

"After reviewing the testimony given in the committee room and discussing it with members that were present, I felt that this was an issue that we did not need to spend a lot of time on during the rest of the session. It's very clear that while many believe changes to the judicial nominating commission do need to occur, they need to be well thought out and perhaps be examined in an atmosphere that's a little more thoughtful and not quite so quick," Bosma said today.

Under the proposal, made by Rep. Ralph Foley, R-Martinsville, would have made Indiana the first state in the nation to place on the ballot a statement advising voters whether to retain or reject supreme and appellate court judges.

The proposal, inserted into House Bill 1419, was approved on a party-line vote Monday evening in the House Rules Committee. * * *

The bill also would have fired the current six members of the commission, and replaced them with three members appointed by Gov. Mitch Daniels and three chosen by attorneys from a list of six picked by the House speaker and Senate president pro tempore -- currently all Republicans.

For background, see yesterday's ILB entry here.

[Updated 1/26/06] Here is today's Star's slightly updated version of the story.

Posted by Marcia Oddi on Wednesday, January 25, 2006
Posted to Indiana Courts | Indiana Law

Ind. Courts - Chair of weighted caseload study featured

The Richmond Paladium-Item has a feature today by Rebecca Helmes on Wayne County Superior Court I Judge Thomas Snow. The story reports that in the early 1990s Chief Justice Shepard formed the Judicial Administrative Committee and Judge Snow became its chairman. More:

Snow led a study on case filings in the Indiana court system and was charged with finding a system of improving and equalizing the time it took a case to be resolved.

Through this initiative, Snow did a weighted caseload study and figured out the average time it took to decide murders, divorces, probate issues, auto accidents, small claims, etc. All over Indiana, judges kept time books and reported back. After deciphering the results, it became easier for judges to even out their caseloads.

"We found out caseload doesn't equal workload," Snow said.

Using what Shepard called "the Snow formula," caseloads across the state are randomly assigned so each court has a more equal load. Shepard said the system is also a reliable way to help judges figure out what regions need more judges.

"It met with a fair amount of criticism, because it's not a perfect system," Snow said. "Actually, it's been a success."

Recently a new committee was formed to review Snow's committee's original findings and processes.

"They really didn't do much revision to it at all," Snow said.

Snow said the county courts now see roughly the same number of divorces, criminal cases, and the like. If judges have a reputation for being good at resolving cases like divorces, their divorce caseload isn't influenced by their perceived skill.

"You know you're getting the good, the bad and the ugly," Snow said.

For more on weighted caseloads, see this page on the Indiana Courts site.

Posted by Marcia Oddi on Wednesday, January 25, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit posts four today, two civil and two criminal sentencing

None of the cases were Indiana-based.

In Makor Issues & Right v Tellabs Inc., Judge Wood's opinion begins:

WOOD, Circuit Judge. This class action against Tellabs, Inc., a manufacturer of specialized equipment used in fiber optic cable networks, presents the first opportunity for this court to address the heightened pleading requirements of the Private Securities Litigation Reform Act of 1995 (PSLRA), 15 U.S.C. § 78u-4(b). The plaintiffs have accused Tellabs and its executives of engaging in a scheme to deceive the investing public about the true value of Tellabs’s stock. The district court dismissed the plaintiffs’ second amended complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), after finding that the plaintiffs had failed to meet the PSLRA’s pleading threshold. We affirm in part and reverse in part.

Posted by Marcia Oddi on Wednesday, January 25, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court holds a city’s housing code is not unenforceable for failure to include an express warrant procedure

In City of Vincennes v. Kevin Emmons d/b/a Cherokee Rentals, Jeffrey Hendrixson and Eric Klein, Justice Boehm writes:

We hold that a city’s housing code is not unenforceable for failure to include an express warrant procedure in the event a landlord objects to an inspection. * * *

The City of Vincennes Rental Housing Code (“Code”) sets standards for residential rental units and provides for regulation and inspection of units.1 Kevin Emmons, Jeffery Hendrixson, and Eric Klein each own one or more residential rental properties in Vincennes and failed to pay the required annual registration fee of $18 per unit. The City brought civil actions against each of the landlords to collect unpaid registration fees. The cases were consolidated, and the con-solidated case was submitted to the court on stipulated facts. The landlords admitted that the Code called for payment of registration fees but contended that the entire Code was unconstitu-tional because its provision for inspection of rental units violated the Fourth Amendment to the United States Constitution as authorizing or requiring unreasonable searches.3 The trial court agreed and dismissed the City’s complaint. The Court of Appeals affirmed * * *

Conclusion. For the reasons already given, in most inspections no warrant is required due to tenant consent. If in a particular case, for example where the landlord occupies the premises, the federal or state constitution re-quires the City to seek a warrant to conduct an inspection without landlord consent, the City will need a warrant whether or not section 156.05(E) addresses that explicitly. But the ordinance is not invalid for failure to spell that out. Conclusion The judgment of the trial court dismissing the City’s civil action is reversed.

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

We have been urged from time to time to impose a warranty of habitability on every Indiana residential lease as a matter of common law.

I think we have been wise to decline these invitations, believing that a housing market in which landlords and tenants are empowered to strike their own bargains as to quality and price of housing tends to produce a wider range of options, and that a market affected by judicial restriction of such bargaining likely produces less housing and raises prices for those in the lowest in-comes. See Johnson v. Scandia Assoc., 717 N.E.2d 24, 30 (Ind. 1999).

My assessment of this question has partly rested on the knowledge that most Indiana renters (as this case shows, even those in many smaller cities) are protected by the enactment and enforcement of local housing codes.

Amicus for the state’s apartment owners has asked us to prohibit regular inspection of rented housing. Indeed, they have urged us to hold that even when a tenant complains about a housing code violation (say, a fire safety threat), the city cannot investigate the threat without going to court for a warrant.

Of course, the Court has not embraced this position. Had we done so, the resultant bowdlerizing of local ordinances protecting renters would have suggested, to me at least, that the idea of recognizing a general implied warranty of habitability would bear revisiting.

Posted by Marcia Oddi on Wednesday, January 25, 2006
Posted to Ind. Sup.Ct. Decisions

Law - Supreme Court decision this week carries the potential to undermine campaign finance reform

So writes the NY Times in an editorial today about the Supreme Court's ruling this week in Wisconsin Right to Life v. Federal Election Commission (see ILB entry from 1/23/06). The editorial begins:

Just when the American public - outraged by the growing lobbying scandals - is calling for more regulation of money in politics, the Supreme Court has opened the door for a move in the other direction. Its brief 9-to-0 ruling this week is technical in nature, but carries the potential to undermine campaign finance reform.

The decision involves the McCain-Feingold reform law, which the court upheld in a landmark 2003 ruling. During the 2004 elections, Wisconsin Right to Life, an anti-abortion group, wanted to run television ads that put Senator Russell Feingold, a Democrat who was in a tough re-election fight, in a bad light.

The ads expressed concern about the use of filibusters to block judicial nominees, and urged viewers to tell Senator Feingold, and Wisconsin's other senator, to oppose filibusters. McCain-Feingold bans the use of corporate and special-interest group money for "electioneering communications," which it defines in part as ads that run within 60 days of a general election and mention a candidate by name. But Wisconsin Right to Life argued that its ads were grass-roots lobbying - an attempt to change the process of judicial confirmation - not an electioneering effort to defeat Senator Feingold. Therefore, the group said, the ads did not come under the law's limitations.

The lower court interpreted the Supreme Court's 2003 ruling to mean that all ads of this kind were restricted within the 60-day window, and that lower courts should not get involved in trying to separate acceptable ads from unacceptable ones. But the Supreme Court disagreed this week, saying that courts could hear "as applied" challenges like Wisconsin Right to Life's, and consider which ads were really no more than grass-roots lobbying.

Posted by Marcia Oddi on Wednesday, January 25, 2006
Posted to General Law Related

Environment - Too many unanswered questions about Dunes lodge; Environmental Impact Statement

The Gary Post-Tribune carried a story yesterday (no longer available online) headlined "Too many unanswered questions about Dunes lodge." Some quotes:

A proposed inn at Indiana Dunes State Park won’t be on the beach as some had feared, but a local environmentalist says there are still too many unanswered questions about the planned lodging facility.

Herb Read, a local architect and environmentalist, issued a letter Monday spelling out his concerns for the Dunes’ fragile environment, and asked state officials to consider them before moving on plans to begin construction of an inn, perhaps later this year.

Read said location, public input, alcohol, building size and the impact on other local innkeepers were all factors that need to be considered.

Kyle Hupfer, the director of the Department of Natural Resources, says Read’s concerns are “unfounded.”

Read said Hupfer has been “pushing ahead rapidly... without any opportunity for the public to question the proposal...”

Some form of public forum would likely be planned “to let residents know of the development of the project after we get some proposals in,” Hupfer said.

More from the story:
The DNR has slated a Friday meeting in Indianapolis for private prospective developers and operators interested in opening new inns at the Indiana Dunes, Versailles and Potato Creek state parks.

Read said the new plan shouldn’t exceed the “footprint” of an inn that formerly existed on the beach near the current pavilion. Reed said the inn, built by John Lloyd Wright, son of famed architect Frank Lloyd Wright, had only 50 rooms. Read also said a building with several stories could block the view of the Dunes.

State officials have already said an inn would have to have at least 75 rooms, and Hupfer said the new building could have multiple floors, but added that the building would not be located on the same area as the old hotel, but farther back near the existing parking lot. * * *

The Save the Dunes board voted last fall to oppose the inn, but Save the Dunes director Tom Anderson said the council was realistic about the possibility that it could become a reality, and, if so, emphasized the need to make sure environmental practices would be followed.

Environmental Impact Statement. It is not mentioned in the story, but this state project is presumably subject to the state's NEPA law, found at IC 13-12-4, Environmental Impact Statements, and specifically, as a proposed "major state action" affecting the environment, to IC 13-12-4-5(C).

Each Indiana environmental board has rules implementing this law - the Water Board's rules, for example, are located at 327 IAC 11.

Posted by Marcia Oddi on Wednesday, January 25, 2006
Posted to Environment | Indiana Government

Ind. Law - Senate approves telecommunications overhaul

"Senate OKs bill changing telecommunication rules: Deregulation, Internet access at measure's core" is the headline to this Lesley Stedman Weidenbener report in today's Louisville Courier Journal. Some quotes:

The Indiana Senate gave overwhelming approval yesterday to a bill that removes price controls and most regulation of local phone service.

Senate Bill 245, approved 40-6, now goes to the House for consideration.

The bill would permit companies to raise rates modestly for three years if they make high-speed Internet services available to at least half the customers in a telephone exchange. But after 2009 phone rates no longer would be capped and companies could charge whatever they want.

Sen. Brandt Hershman, R-Wheatfield, said removing regulation will free companies to invest more in Indiana. He said it would encourage them to expand and upgrade their networks so more Hoosiers can receive the benefits of high-speed Internet.

Also, the bill allows companies that want to provide cable — or video service — to get blanket permission from the state, rather than negotiating one-by-one with individual communities. * * *

Sen. David Ford, R-Hartford City, the only Republican to vote against the bill, said it doesn't do enough to protect customers from rate increases and does nothing to require the deployment of high-speed Internet service, especially in rural areas.

Customers in cities who have multiple choices for phone service probably will fare well under the bill, he said, but those in smaller communities could suffer. "I hope I'm wrong, but it's a tremendous leap of faith," Ford said of the bill. "We're getting absolutely nothing in return ... for giving up everything." * * *

Traditional cable companies oppose the legislation because they are conducting business under the local franchise agreements, which typically require them to build their networks to reach all buildings in entire communities. The state franchise would not include that requirement for new companies — such as phone companies — that want to provide video services.

"Senate OKs telecom package: Area legislator fears lapses in rural phone, broadband service" is the headline to this story in the Fort Wayne Journal Gazette by Niki Kelly. Some quotes:
There are three major components to the legislation:

• One would allow phone companies to raise rates $1 a year for basic phone service if they provide broadband to 50 percent of the homes in a phone exchange. That minimal increase is for the first three years, after which the company would be free from price controls and could raise rates at will. An amendment does prevent phone companies from charging by the minute for basic phone service.

• A second part would institute statewide video franchising authority instead of having cable companies negotiate with individual communities to provide service. Opponents worry that service levels and other promises from those negotiations would disappear.

• Another section makes it more difficult for municipalities to offer broadband service.

The purpose of the bill is to make the telecommunications market more competitive and possibly cost less in the future. * * *

Several lawmakers noted that the Indiana Utility Regulatory Commission recently issued an order that the state’s telephone industry has not developed enough competitively to deregulate. [Access the 50-page IURC order via this ILB entry from Dec. 10, 2005.]

Sen. David Ford, R-Hartford City, said there is no guarantee in the bill that broadband will be available to more people, and he said rural areas are losing basic phone service protections. “It’s a tremendous leap of faith,” he said. “We’re getting absolutely nothing in return, as far as I can see, for giving up everything.”

[Use this link to create a list of ILB entries involving telecommunications from this year and last.]

Posted by Marcia Oddi on Wednesday, January 25, 2006
Posted to Indiana Government | Indiana Law

Tuesday, January 24, 2006

Ind. Gov't. - At least $22.4 million was spent trying to influence the General Assembly in 2005.

"At least $22.4 million was spent trying to influence the General Assembly in 2005." That is how this wide-ranging story on lobbying by Michele McNeil in yesterday's Indianapolis Star concludes. A chart shows that SBC Indiana (now AT&T), Telecommunications, spent the most, at $1.13 million, and Eli Lilly and Co., Pharmaceuticals, came in a distant second at $342,813. More from earlier in the story:

SBC Indiana, now known as AT&T, didn't win the deregulation fight last year in the General Assembly. But the odds are much better this year, as legislators in the House and Senate, and even the governor, are saying it's time to lift state regulation from phone companies.

Consumer groups plan to fight deregulation, which is emerging as one of the top issues in this year's short session. They fear it could result in higher prices for consumers. But those opponents say defeating deregulation will be an uphill battle, given the disparity in funding.

"There's no way consumer groups can compete with that kind of money," said Rep. Matt Pierce, D-Bloomington, who is opposed to bills being considered this year to deregulate phone service.

AT&T was one of at least 750 lobbying groups that spent $22.4 million trying to sway lawmakers during the 2005 session and in the months leading up to this year's legislative session, according to the Indiana Lobby Registration Commission.

Posted by Marcia Oddi on Tuesday, January 24, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - Health care perks and the 2006 elections

The Decatur Daily Democrat has an opinion piece today by Brian Howey headed "Health care perks and the 2006 elections." A quote:

Asked by a reporter if he was worried about the perception, [Senator Bob] Garton said, “The staff is included in the health care program. I suppose if you want to characterize it as a tax-paid program, the Medicare program is tax paid as well.”

Thanks, Bob. He’s lucky in that he doesn’t appear to have an opponent. When State Sen. Brent Waltz used the perk as a 2004 primary campaign issue against powerful Senate Finance Chairman Larry Borst, it polled off the charts and Borst was defeated. State Rep. Troy Woodruff used it to upset John Frenz .

Add the fact that these "part time" legislators get a 4-1 match from the state in their retirement plan and are allowed to take loans from that plan when no other public employee retirement program with the state allows loans, and the perks start to pile up.

[For earlier related ILB entries, select "Legislative Benefits" from the list of categories in the right column, or by selecting "Legislative Benefits" in the line directly below this entry.]

Posted by Marcia Oddi on Tuesday, January 24, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Decisions - 7th Circuit issues five today, none involving Indiana directly

But this is interesting. In Van Patten v. Deppish, Judge Evans explores this question:

Telephone conversations with clients are a big part of what lawyers do. But can using a telephone while representing a client go too far? This habeas case presents the novel—but, in the endless quest for efficiency, perhaps inevitable—question: What does the law require when a client on the other end of a telephone hookup with his lawyer is standing before a judge, about to relinquish a bevy of important constitutional rights? * * *

Although counsel-by-conference call probably could not have been imagined by the Supreme Court in 1938, it is worth remembering that Justice Sutherland in Powell— as well as Justice Stevens in Cronic more than a halfcentury later—invoked the metaphor of the “guiding hand” of counsel which a defendant requires at every step. Similarly, we have observed that “[t]he Sixth Amendment . . . guarantees more than just a warm body to stand next to the accused.” Thomas, 856 F.2d at 1015. In this case, Van Patten didn’t get even a warm body. The judgment of the district court is REVERSED and the case is REMANDED for the entry of an order granting the petition for a writ of habeas corpus. On the subsequent remand to the Circuit Court for Shawano County, the proceedings against Mr. Van Patten can resume with a plea of not guilty in place.

In Jolly Group Ltd. v. Medline Industries, a 6-page opinion, Judge Evans begins:
In this appeal, attorney Michael J. Rovell challenges a rather modest ($450 plus 4 hours of attorneys fees) sanction order issued against him stemming from his representation of The Jolly Group, Ltd. in a breach of contract action against Medline Industries, Inc. For reasons we will explain, we find that the district court did not abuse its discretion in imposing the sanctions, but we also deny Medline’s cross-appeal asking us to significantly enlarge the scope of the penalty: Medline seeks a more robust sanction order—in excess of $30,000 (as of May 2004) with the meter still running.

Posted by Marcia Oddi on Tuesday, January 24, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues one today, re a divorce decree

In Deckard v. Deckard, a 15-page, Judge Crone concludes:

In sum, the trial court did not abuse its discretion in valuing Husband’s checking account. In addition, the trial court did not abuse its discretion in distributing personal property. However, the trial court did abuse its discretion in including Husband’s withdrawal from the parties’ line of credit in the marital estate. We remand so that the trial court may recalculate and redistribute the marital estate consistent with this opinion. With regard to Husband’s contribution to college expenses, the trial court did not abuse its discretion in failing to require that daughter maintain a minimum grade point average. Finally, the trial court erred in ordering that Husband be incarcerated for contempt, and we vacate that portion of the final divorce decree.

Posted by Marcia Oddi on Tuesday, January 24, 2006
Posted to Ind. App.Ct. Decisions

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

This is a story that the ILB has been following since 2004. See the Nov. 23, 2005 entry here.

"Judge favors New Albany in Linden Street land-use dispute"
is the headline to this story today by Dick Kaukas in the Louisville Courier Journal. Some quotes:

A special judge has ruled in favor of New Albany in a lawsuit that challenged the city's plans to use a site on Linden Street for affordable housing.

Judge Cecile Blau said in her decision that neither the heirs of a woman who deeded land to the city for recreational purposes nor neighbors who live nearby can stop the city's proposal.

Blau ruled that the heirs "have been compensated for any interest they may have had" in the 5.5 acres on Linden Street, which was left to the city 70 years ago by Catherine Fawcett. * * *

Rebecca Gardenour, one of the neighbors who sued the city in Floyd Circuit Court, said yesterday that she and other plaintiffs have decided to appeal the decision and will meet with their lawyer, David A. Lewis, to discuss the case Saturday. * * *

"We knew it was going to have to be settled at a higher court," she said. "It's just another step we have to go through. It's as simple as that." * * *

The dispute, which started more than a year ago, focuses on the city's plans to move the homes from land where Floyd Memorial Hospital was expanding to the park area, where an affordable-housing subdivision called Linden Meadows would be established.

When she found out about the city's intentions, Gardenour checked property records and found Fawcett's deed, which said the property could be used only for a golf course or park.

Gardenour later filed suit along with 11 other plaintiffs, contending that the city was violating the terms of the deed and that the property should now go back to Fawcett's heirs.

During a hearing before Blau in November, Lewis argued that the land "automatically reverts back" to the heirs if it is used as intended, adding that a subdivision would be "a private purpose." * * *

The transfer to the state, Blau said, "extinguished" a clause in the deed that said the property would go back to the heirs if not used for a golf course and park.

Also in 1960, Fawcett's sole heir, Edyth Fawcett Peters, was paid $1,600 for a quitclaim deed to the property, Blau said.

That deed, Blau added later, meant that Peters was compensated and had given up "any reversionary interest" in the property.

The ILB will try to obtain a copy of this trial court ruling and, if successful, will post the link here. Note that Floyd County has its court record information online and I was able to quickly locate the case name and summary. The case name is Jensen et al v. City of New Albany.

Posted by Marcia Oddi on Tuesday, January 24, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Government | Indiana Law

Ind. Courts - Vigo County prosecutor race

The Terre Haute Tribune-Star reports:

Experience and a willingness to change the status quo is what Mike Ellis says separates him from other candidates for Vigo County prosecutor.

Ellis filed his candidacy Monday with the Indiana Secretary of State’s office as a Democrat candidate for the position. Candidates for prosecutor and judge must file at the state level. * * *

Ellis served as a deputy prosecutor from 1987 to 1997 and as a county public defender from July 2000 to present. He also served as a Vigo County councilman from 1998 to 2000, after winning a Democrat caucus election.

Ellis is a 1978 graduate of Terre Haute South Vigo High School and a 1981 graduate of Indiana State University. He earned his law degree in 1984 from Thomas M. Cooley Law School in Lansing, Mich. He is a managing partner of Ellis Law. * * *

Democrat Sarah Mullican has declared her candidacy for prosecutor and Democrat Harold “Hal” Johnston, a Terre Haute resident and the Knox County chief deputy prosecutor, said he intends to run.

Republican Terry Modesitt last month announced his intention to seek the Republican nomination in the May primary.

Posted by Marcia Oddi on Tuesday, January 24, 2006
Posted to Indiana Courts

Ind. Law - More on: Bill would limit access to birth, death records, pitting freedom of information against privacy concerns

This ILB entry from Jan. 17th included this quote from the Indianapolis Star:

Birth and death records now open to the public would be closed under a bill proposed in the Indiana House, pitting freedom of information against privacy concerns.

House Bill 1067 would make it harder for someone to retrieve another person's birth or death information unless they are a relative of the person listed on the record, a member of the media or someone researching genealogy. Others would have to get a court order to gain access to the records.

A story Saturday in the Greenfield Daily Reporter, by Eric North, reported:
A bill filed by a Hancock County lawmaker is drawing a lot of attention for the restrictions it would place on access to certain health records.

Government watchdog groups this week quickly attacked House Bill 1067, which would limit the information available to the public from government birth and death records. Its author, Rep. Bob Cherry, R-Greenfield, defended it as a way to protect people from identify theft. * * *

“The information to be blocked could be valuable to the community,” said Steve Key, general counsel to the Hoosier State Press Association. “This law would block a reporter’s ability to research the cause of death in an accident while working on a story.”

Key said the information, including the cause of death, is critical in the media’s investigation of stories, for example, involving environmental contamination of an area where several residents die of the same ailment.

“If a reporter was looking to document for the cause of death of a group of people who might live in a certain area where a chemical spill occurred many years ago, this change would make that impossible to get the kind of human data that is necessary to do such work,” Key said.

Another example: Groups that compile mortality data on victims of cancer and other diseases would be blocked from such study.

The Indiana Coalition for Open Government, another group that advocates open records, echoed Key’s concerns.

“The public should be allowed access to such records to be informed on the issues,” a spokesman said.

Those who work on genealogy records locally say it is another erosion of the information they need to continue their work.

“It is hard enough to get records now,” said Mary Hoss, a past president of the Hancock County Genealogical Society.

Experts say the death and cause of death as well as birth and parental information is critical in preparing a family history. “A lot of the records don’t contain much information anyway, and now they want to limit on what is on them further.”

The bill has been assigned to the House Committee on Public Health, but has not yet been set for a hearing.

Posted by Marcia Oddi on Tuesday, January 24, 2006
Posted to Indiana Law

Courts - Supreme Court Ruling Could Spur Partisan Judicial Campaigns

The LA Times is reporting today, in a story by David Savage headed "Supreme Court Ruling Could Spur Partisan Judicial Campaigns," that:

The Supreme Court took another step Monday toward transforming state elections for judges from nonpartisan, low-key affairs into big-money contests.

The justices let stand a lower court ruling in a Minnesota case that voids rules forbidding judicial candidates from personally soliciting money or from identifying themselves as Republicans or Democrats.

The rules were voided using the rationale that they deprive candidates of free speech. About 30 states with similar provisions could be affected if the ruling spreads beyond the U.S. 8th Circuit Court of Appeals.

Monday's decision "could open the floodgates of money into America's courtrooms," said the Washington-based group Justice at Stake. It will "ratchet up special-interest pressure on courts that are supposed to be fair and impartial."

Minnesota sought to preserve the rules against such spending, contending they are "critical to ensuring that the state's judiciary is — and is seen to be — above party politics and the corrupting influences of money."

Savage cites Rick Hasen of Election Law Blog as saying that this decision:
which left in place a ruling by the 8th Circuit, is not binding on the 9th Circuit. California's Supreme Court justices are appointed by the governor for set terms, but must run to retain their seats. Judges of the state's superior courts are elected in nonpartisan races. Some legal experts said Monday's action by the high court suggested judges and judicial candidates were now free to run partisan campaigns. * * *

Hasen said there was nothing in the Supreme Court decision that would require California to elect judges through a partisan election.

But he said it was possible that a candidate might run a partisan campaign with the hope that the existing state law eventually would be overturned.

The high court triggered the move toward more expensive and partisan state judicial races four years ago, in Minnesota. It struck down the state's code of conduct that barred judges and judicial candidates from announcing their views on issues that might come before the courts.

In a 5-4 ruling, the justices said the 1st Amendment's guarantee of freedom of speech gave judges a right to speak out on controversies, even if their pronouncements might undercut their appearance of impartiality.

Since then, a series of other rules that restrict judicial candidates have been challenged in the lower courts, and nearly all of them have been struck down on free-speech grounds.

"This means we are moving toward no-holds-barred elections for judges. It also means the public will view judges like other pols and probably have less respect for courts," said Schotland.

[Indiana attorney] James Bopp Jr., who successfully challenged the rules on behalf of the Republican Party of Minnesota, agreed the high court's action would probably have a wide impact.

"It's becoming clear the 1st Amendment has a broad application to judicial elections and that the original foundation for the regulation of judicial elections has been pretty well destroyed," he said.

Some background on the case:
[N]early all the states enforce judicial codes of conduct that limit the partisan political activity of sitting judges. Minnesota forbids its judges and judicial candidates from speaking at a political party's meeting or from seeking a party's endorsement.

In August, the full U.S. 8th Circuit Court of Appeals declared unconstitutional Minnesota's rules forbidding judges from engaging in partisan activity and from personally seeking campaign funds.

The state appealed to the high court.

Minnesota was supported by the American Bar Assn., the Conference of (state) Chief Justices and 39 of the nation's largest corporations. They included Dow Chemical, General Electric, General Motors, Johnson & Johnson, Time Warner and Wal-Mart.

These companies voiced concern at "the prospect of increasingly costly, divisive and partisan judicial elections." Its officials also said they "often find themselves between a rock and a hard place" when a judge asks for campaign money. Giving "to even the most promising candidate has the potential to create an appearance of seeking favor in any future litigation," the company lawyers said. "That potential is only compounded when the judge himself makes the request."

Unswayed, the Supreme Court, without comment, turned down the appeal Monday in the case of Dimick vs. Republican Party of Minnesota, leaving the lower court's decision intact.

Indiana has a case pending, Right to Life v. Shepard, before Judge Sharp in the the ND Indiana. See this ILB entry from Nov. 9, 2005 for more. See also this entry from Jan. 4, 2006.

Here is a quote from Prof. Rick Hasen:

UPDATE: With the campaign finance ruling today [Wis. Right to Life - see ILB entry here], it is easy to lose sight of the significance of this cert. denial. The earlier White case by the Supreme Court struck down Minnesota's "announce clause," which was a rarely used judicial campaign speech rule that the ABA itself had abandoned. In the current case, the Eighth Circuit struck down a rule limiting the partisan political activities of judges as well as a ban on certain direct solicitation of campaign contributions by judges. Along the way, the Eighth Circuit called into question all judicial campaign codes, suggesting that when such rules are enacted by state high courts rather than state legislatures, the courts have acted beyond their authority.

Already before this cert. denial, federal courts have began striking down a host of judicial campaign rules (while state courts have tended to uphold them). While the cert. denial is not a ruling on the merits, it is likely to accelerate the trend in the federal courts. Judicial elections are going to look even more like non-judicial elections as time goes on.

Posted by Marcia Oddi on Tuesday, January 24, 2006
Posted to Indiana Courts

Courts - Bill to change appeals judge selection process passes out of House committee

"Judges bill clears House Panel" is the headline to this story today by Niki Kelly of the Fort Wayne Journal Gazette.

Why haven't you heard about it before? Kelly explains:

Six House Republicans on Monday passed a bill that some judges likened to a political coup.

House Bill 1419 was a vehicle bill with no content until the Republican-dominated House Rules Committee amended it to include controversial language about selecting and retaining Indiana Supreme Court and Indiana Court of Appeals judges.

The same members passed the legislation on to the full House for further consideration while all four Democrats on the panel voted “no.”

“It’s hard to see this as anything other than a potential naked use of political power to remove five justices from the Court of Appeals and one justice from the Indiana Supreme Court,” said Court of Appeals Judge John T. Sharpnack. “Just because you can do something doesn’t mean you should.”

More from the story:
Every legal group in attendance opposed the bill.

Right now, Court of Appeals and Supreme Court judges are chosen through a Judicial Nominating Commission, which interviews applicants and sends three names to the governor, who has the final choice.

The bill’s author, Rep. Ralph Foley, R-Martinsville, said the system hasn’t worked out fairly because in 16 years all 21 judges appointed have been Democrats, including five Supreme Court justices and 16 appeals court judges.

Foley's bill would change the judicial nominating commission panel as of June 30. In addition, it would:
have the judicial nominating commission vote on whether an appellate or Supreme Court judge should be retained and place that recommendation on a ballot that Hoosiers would then vote on.

Right now these judges face an up-or-down retention vote every 10 years but no recommendation is included. In fact, one judge said no state in the country allows such a recommendation on the actual ballot. Several opponents testified it would rise to the level of putting campaign material on a ballot.

Sharpnack – who must retire at age 75 in 2008 and would not face a retention vote under the proposed system – said the recommendation would account to a “kiss of death.”

He also noted that the bill is being pushed very hastily, apparently to influence the outcome of the fall general election in which five appellate judges and one Supreme Court justice are up for retention. They are all Democrats.

Kelly's story also notes that normally such a bill would go to the Judiciary Committee, rather than the Rules Committee. It is the House Speaker who assigns bills to committee. (See membership of House committees here.)

The new text of HB 1419 is not yet available. All that is currently online is the introduced "vehicle bill" and the minority committee report.

Recall that in the 2005 session, SJR 1, authored by Senator Young, attempted a different route to the same end, via a constitutional amendment. The proposal passed the Senate on a party-line vote, 33-16, but died in the House Judiciary Committee.

For more information, see my Oct. 2005 Res Gestae article, "Voting to Retain or Reject Indiana Judges and Justices."

Posted by Marcia Oddi on Tuesday, January 24, 2006
Posted to Indiana Courts

Monday, January 23, 2006

Ind. Law - More on legislators' health care: What was the press reporting at the time? Conclusions

[This is Part II of the two entries posted today. Part I, from this afternoon, may be found here, or by scrolling down this page.]

I watched WFYI's Indiana Week in Review last weekend. "Lifetime Health Insurance for Lawmakers" was one of the topics discussed. The lead-in featured Rep. Billy Bright, who it was said won election in 2004 in part by criticizing the plan. He called it "an egregious benefit."

To answer the question "Will there be a big turnover next year", meaning will House members retire while they are still eligible for the plan, Rep. Dave Crooks talked about how valuable the benefit was for legislators like himself -- he runs a small business and has two young children. He looks to be under 40. More on this later.

The panel discussion was superficial. One panel member actually said that the expense was not that great. When someone responded "now" she continued "in the larger school of things, compared to the Medicaid budget"! As they wound up, Mike McDaniel asked the reporters: "Where were you guys when all this was going on? Where was the press? Jon Schwantes said "that's a good question." Jim Shella said "That is a very good question."

I was astonished. I knew about these bills at the time, in 2001 and 2002. Rep. Billy Bright had to know about them since, as they said in the program's introduction, he won election by criticizing the plan. And of course Brent Waltz defeated longtime senator Larry Borst by running against legislative perks.

I knew about these bills because I read about them in the Indianapolis Star at the time. For some reason, the Star has had only minimal coverage of the issue of legislators' benefits this year, but it was not always so.

This weekend I went to the Star's pay-for-view archives and downloaded ten stories (they have a plan where you can download 10 within 24-hours for $9.95). Here are the descriptions you receive:

Lawmakers expand benefits package
August 21, 2001 •• 956 words •• ID: ind47336723
State lawmakers didn't get the pay raise they wanted this year, but they got something else -- better health insurance and improved retirement benefits. The benefits package afforded to Indiana's part-time lawmakers now rivals what top private-sector companies offer their full-time employees, financial experts say. "They are very generous," said Grace Worley, a certified financial planner. Indiana lawmakers receive a base salary of [BUY]

No raise but plenty of fringe benefits
August 25, 2001 •• 481 words •• ID: ind47402121
Our position: State lawmakers got a tad too generous with themselves when they adopted a new benefits package last session. In the last session of the General Assembly, members approved a pay raise for themselves. Base salary would rise from $11,600 to $19,000, which would have been acceptable, given the fact that lawmakers hadn't had a salary increase since 1985. Gov. Frank O'Bannon, however, vetoed the legislation. The rebuff shouldn't be too hard to [BUY]

Legislators jump gun on pension loans
October 4, 2001 •• 793 words •• ID: ind48028884
The rules haven't even been adopted yet, but Indiana's lawmakers already are seeking loans from their pension plans, a perk they awarded themselves earlier this year. Seven lawmakers filed applications last month to borrow a total of $276,000 from their retirement funds. Tom Parker, director of the Legislators Retirement System, said the names of those lawmakers are confidential and will stay so. General Assembly members voted this spring to give themselves the [BUY]

Bill would provide health benefits to 'retired' legislators
May 14, 2002 •• 1108 words •• ID: ind55654413
The state fiscal crisis awaits lawmakers when they return to work today. On their list of things to do: Erase a nearly $1 billion budget deficit, kick-start an ailing economy and help homeowners worried about higher property taxes. But first, legislators may help themselves. Today, they're expected to vote on a bill that could help members of the General Assembly pay for health insurance once they retire. The Senate has scheduled an override vote on Gov. Frank [BUY]

No time for perks in budget crisis
May 16, 2002 •• 558 words •• ID: ind55698673
Our position: The Senate's priorities are outrageously out of line. Indiana's economy is in shambles. The budget is $1 billion in the hole. Jobs are pouring out of state by the thousands. And how do state senators spend the first day of a special session devoted to tax and budget issues? Debating whether to pad their own benefits. The Senate on Tuesday took up an override vote on the governor's veto of a bill to subsidize health insurance of retired [BUY]

Insurance extended to former legislators
March 30, 2003 •• 2347 words •• ID: ind63595961
Amid calls last summer to trim spending, with a nearly $1 billion budget deficit looming, Indiana's two top lawmakers quietly activated a dormant state law to give retired legislators a new perk: taxpayer-subsidized health insurance. It's unusual for government and private-sector workers to get this benefit. But ex-legislators now can remain in the state's insurance plans after serving just a little more than six years. And retired members of the General [BUY]

Legislative perk is a crying shame
April 1, 2003 •• 550 words •• ID: ind63651133
Our position: New insurance benefits for retired lawmakers should leave taxpayers in tears. Money to educate Indiana's children has been slashed. Thousands of families are waiting for needed services. State employees have had their salaries frozen. State parks have closed facilities. The cuts occurred after Indiana's $2 billion surplus collapsed into a nearly $1 billion deficit. So how did state legislators respond to the financial crisis? By giving retired lawmakers [BUY]

Lawmakers put pension details under lockdown

March 15, 2004 •• 1300 words •• ID: ind83264346
Although lawmakers accomplished little in their latest session, the General Assembly did pass a bill to make sure details about their individual pensions remain secret. The same bill, which wouldn't affect access to information about the legislature as a whole, also keeps the lid on taxpayer-financed retirement plans of judges, prosecutors and law enforcement officers. The provision was tucked inside a House bill late in the legislative process and approved without the [BUY]

This deal's so good, they want it secret
March 16, 2004 •• 394 words •• ID: ind83310528
Our position is: The public does not stand to profit from pension privacy the legislature voted for itself. T he Indiana General Assembly did not accomplish a great deal this past session in the way of child protection or environmental protection, but it took a lengthy stride in the direction of self-protection. Passed easily in both chambers and slipped through without citizen input, House Bill 1285 bans public inspection of taxpayer-financed state employee pension funds, including [BUY]

Behind the curtain: Legislators' compensation
September 5, 2004 •• 1600 words •• ID: ind65714249
John Bartlett defends the proposal to increase state legislators' salaries by 159 percent. Bartlett, chairman of the Public Officers Compensation Advisory Commission, notes that legislators haven't received a pay raise in 21 years. Yet Bartlett admits he didn't check out legislators' perks. Like the $134 per day each one receives during sessions for food and lodging expenses. It adds up to an additional $8,174 a year. Then there's [BUY]

Bosma: Now not time to end costly health plan
March 14, 2005 •• 2832 words •• ID: ind76183502
The Republican leader of the Indiana House has killed proposals to cut back or eliminate taxpayer-subsidized health care for former legislators, even though several Republicans in key races were elected last fall after campaigning for the changes. Speaker Brian Bosma, R-Indianapolis, who was swept into power after his party took control of the chamber last fall, acknowledged that offering lifetime health care to former lawmakers has become costly and hard to justify. But he said now is not [BUY]

What did I learn?

I learned that the taxpayer-subsidized health plan covers not only legislators for life, but their widows and children, widows for life and children until age 25. So Rep. Crooks is right when he says how valuable the plan is to him. If he retires this year at age 40 (hypothetically), the benefits cover him for life, his wife for life if she survives him, and any children to age 25. Divorced spouses and widows or widowers of former legislators are also covered.

The May 14, 2002 Indianapolis Star story, by Kevin Corcoran and Michelle McNeil, makes it clear that the facts indeed were reported at the time. Some quotes:

The Senate has scheduled an override vote on Gov. Frank O'Bannon's veto of Senate Enrolled Act 506, which would create a special fund that could be tapped by retired lawmakers. Up to $750,000 a year would flow into the fund, with much of the money coming from the savings realized when legislative documents now printed on paper are published electronically.

The Senate measure was written in tandem with House Enrolled Act 1196, which spells out how this special fund could be used. The intent: to pay for health insurance for lawmakers who "retire" after serving little more than six years and legislative staff members who meet the same retirement requirements other state workers must meet.

When the bills wound their way through the legislature earlier this year, few lawmakers knew what they did or how they were related.

Not even the Senate bill's author, Sen. David Ford, R-Hartford City, was told how the money would be used. His bill would require many legislative documents to be available by computer.

"My intent was to save the state some money. I had no idea this was going on," Ford said.

His legislation is one of several bills approved in the past two years that, taken together, allow taxpayer money to be spent on health insurance benefits for retired lawmakers.

House Speaker John Gregg, D-Sandborn, and Senate President Pro Tempore Robert D. Garton, R-Columbus, declined to say when, or if, they'll sign off on subsidized health care for retired members if Senate Enrolled Act 506 gets approved.

Once they do sign off, getting rid of this cushy benefit would take some doing -- the full legislature would have to vote to revoke the subsidy.

House Minority Floor Leader Michael Smith, R-Rensselaer, and Phil Sachtleben, executive director of the nonpartisan Legislative Services Agency, were behind the benefits legislation.

Smith and Sachtleben say the money was meant to create a new retirement benefit for retired legislative staffers. But both concede it could benefit former lawmakers, too.

Three-fourths of active lawmakers -- or 112 of the 150 members -- receive taxpayer-subsidized health benefits. But just three former legislators get these benefits, in part, because they must pay the full cost.

The story also points out in a sidebar on legislative perks titled "Here's what they get": "Generous retirement accounts, with taxpayers kicking in $4 for every $1 legislators contribute."

In a front-page story dated March 30, 2003 by Kevin Corcoran [this is the story to buy from the archives, if you are buying just one, as the entire story covers 8 pages], the Indianapolis Star reports:

Senate President Pro Tempore Robert Garton and then-House Speaker John Gregg -- after declining to say when or if they would do so -- signed off on the benefit in July. The two legislative leaders did so by invoking the 2001 law in a two-page letter to the State Personnel Department.

Their letter was sent just two months after the Indiana Senate failed to summon enough votes to override Gov. Frank O'Bannon's veto of legislation that would have created a dedicated fund to pay for the benefit. The fund would have been financed by savings from distributing legislative documents electronically instead of on paper.

Because the special fund has not been created, money is coming directly from Indiana's shrinking general fund, the "checking account" in which sales, income and other taxes used to run state government are deposited. [Note: I still don't understand how this money has been appropriated]

"I didn't have any problem signing off on it. I think it's a benefit that's deserved," said Gregg, a Sandborn Democrat who's now practicing law with an Indianapolis firm. "It was already the law. We just hadn't gone ahead with it."

Fourteen retired lawmakers -- including some who left for higher-paying public offices or lucrative lobbying posts -- have purchased the coverage, according to House and Senate officials. [There are more now.] One spouse of a deceased lawmaker also has signed up. * * *

Although cost estimates are done for virtually every new law, no one in the legislative branch bothered to figure the cost to taxpayers of extending insurance to retired legislators.

"It's minimal right now," said Garton, a Columbus Republican.

Using state insurance data and details of the health plan, The Indianapolis Star estimates taxpayers will pay at least $114,150 this year to provide the coverage, at an average of $7,610 per person. Costs of the lifetime benefit could balloon as more ex-legislators join. * * *

House Minority Leader Brian Bosma, R-Indianapolis, declined to defend the new perk.

Most state workers who retire, including the nearly 1,400 who recently took the governor's retirement incentive package, don't have access to subsidized health insurance. Conservation police, Alcoholic Beverage Commission officers and State Police personnel are exceptions. * * *

The plan's architects -- former Rep. Michael Smith, R-Rensselaer, who quit abruptly after the 2002 fall election to take over the Casino Association of Indiana, and Sen. Harold "Potch" Wheeler, R-Larwill -- are among those who've signed up.

Finally, this story from March 14, 2005, by Kevin Cocoran, headlined "Bosma: Now not time to end costly health plan." [Buy this one if you buy two Star stories.] Some quotes:
Attacking the perk was a winning issue for Republicans in November. After eight years out of power, they gained a 52-48 House majority based partly on candidates' pledges to rein in a health care benefit most Hoosiers could only dream about.

The benefit is available to former lawmakers, their spouses, surviving spouses, divorced spouses and dependents. Twenty-two former lawmakers and one ex-lawmaker's surviving spouse are signed up, House and Senate records show.

Lawmakers who leave the General Assembly after serving at least part of four, two-year terms -- or just more than six years -- are eligible for the benefit. Former members of the General Assembly can keep buying coverage after they qualify for Medicare at age 65, limiting what they would have to spend on prescription drugs.

This year, ex-lawmakers receiving the benefit pay between $710 and $1,900 a year for family dental, health and vision coverage.

That's a savings of $3,343 to $12,800 over the amount retired state employees pay for the same levels of coverage. Retired state employees can continue on the state health plan until they reach 65 if they pay the employee and employer shares of state health premiums.

Outside collective bargaining agreements, such generous retiree health benefits are rare in the private sector, said Craig Copeland, senior research associate for the Washington, D.C.-based Employee Benefits Research Institute, a nonprofit, nonpartisan group.

Nationally, he said, most businesses are capping the amounts they are willing to pay, forcing large annual premium increases on retirees. Companies also are saving money by excluding new hires from post-retirement benefits or eliminating retirement health benefits for workers younger than 40. In addition, many retirees have lost post-retirement health care through corporate mergers and bankruptcies. * * *

Bosma said he's concerned that too many ex-lawmakers with high-paying, private-sector jobs are taking the benefit. Five ex-lawmakers who became lobbyists upon leaving the General Assembly have signed up for the program.

One of them was Michael Smith, a Republican representative from Rensselaer who helped craft the benefit and quit abruptly after the 2002 fall election to take over the Casino Association of Indiana. Smith did not return a call seeking comment.

The benefit for retired lawmakers was made possible by a 2001 change in state law. Money to pay for the benefit comes from Indiana's general fund, the "checking account" in which sales, income and other taxes used to run state government are deposited. * * *

One obstacle Bosma faces to reining in the health benefit for former lawmakers is strong opposition from Senate President Pro Tempore Robert D. Garton, R-Columbus.

Garton and then-Speaker John Gregg, D-Sandborn, signed paperwork to begin offering the benefit for former lawmakers in mid-2002 despite calls then to cut state spending to help close a $1 billion deficit. * * *

The plan was activated in mid-2002 for ex-lawmakers and in February 2003 for retired legislative staffers.

This story ends with a list of the then 22 former legislators receiving taxpayer-subsidized health insurance, with their ages and current occupations. Among those listed are former Senators Larry Borst (lobbyist with Baker & Daniels) and William Alexa (now a Porter County trial judge). The majority of the former Representatives listed as receiving the benefit are in their 40s and 50s. Former Representatives include Mark Kruzan (mayor of Bloomington), John Gregg (attorney), Michael Smith (casino lobbyist).

My conclusions.

It is not enough to end the benefit only in the House and not the Senate. And it is not enough to end the benefit in the House starting with Representatives elected in 2006. The entire program must be abolished.

Why on earth should taxpayers, many of whom cannot afford their own health care costs, be subsidizing the lifetime health-care costs of former legislators (many of whom are decades from true retirement age), their spouses, their widows or widowers, their ex-spouses, their children under 25, their staffers (and presumably their staffers' spouses, children, etc.). Incredible.

[For earlier related ILB entries, select "Legislative Benefits" from the list of categories in the right column, or by selecting "Legislative Benefits" in the line directly below this entry.]

Posted by Marcia Oddi on Monday, January 23, 2006
Posted to Indiana Law

Ind. Courts - Tippecanoe County expects to add another court

Purdue's WBAA reports today:

Tippecanoe County is poised to add another court.

Commission President John Knochel says that will likely happen after the juvenile court moves to a yet to be built juvenile justice center.

Tippecanoe County already has seven courts.

Knochel admits the county council struggles often to make sure the courts have enough money to operate efficiently.

Posted by Marcia Oddi on Monday, January 23, 2006
Posted to Indiana Courts

Law - Supreme Court rules in Wisconsin Right to Life [Updated again]

Wisconsin Right to Life v. Federal Election Commission was argued before the U.S. Supreme Court last Tuesday, Jan. 17th. See this ILB entry from Jan. 18th for background.

Today the Supreme Court issued its decision. Access it here.

For analysis, see this commentary by Lyle Denniston, "Court allows campaign finance challenges," here at SCOTUSblog.

Here is Prof. Rick Hasen's take on the ruling, via Election Law Blog.

And here is Indiana attorney James Bopp's (who argued the case for Right to Life) press release on the decision:

Supreme Court Recognizes As-Applied Challenges In Wisconsin Right to Life's McCain-Feingold Lawsuit

Today Wisconsin Right to Life, Inc. (“WRTL”) won a major part of its challenge to the McCain-Feingold law's prohibiting 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 United States Supreme Court ruled that such as-applied challenges may be brought against this prohibition.

In 2003, the U.S. Supreme Court upheld the “electioneering communication” prohibition on its face in McConnell v. FEC. In 2004, Wisconsin Right to Life wanted to broadcast ads, during the blackout periods, urging their two Senators not to support the filibuster of President Bush’s judicial nominees. The lower court had held, however, that there could be no “as-applied” challenges to the electioneering communication prohibition, so that all broadcast ads, including “genuine issue ads,” were prohibited. The Supreme Court held today (in less than a week after oral argument) that such cases may be brought and directed the district court to determine whether the Constitution requires an exception to the electioneering communication ban for grassroots lobbying ads and whether WRTL’s ads are permissible.

James Bopp, Jr., who argued the case for WRTL on January 17, commented: “The Supreme Court readily saw through the government’s sham argument that McConnell v. FEC precluded all as-applied challenges to the electioneering prohibition. No facial decision upholding a statute on its face ever precludes as-applied challenges to such a law based on the unique situations that arise in the future. The lower court must now confront the real merits of this case, namely, that there is no constitutional justification for prohibiting grassroots lobbying about upcoming votes in Congress, just because we are in an election season. The First Amendment prohibits incumbent politicians from shielding themselves from grassroots lobbying through campaign finance laws.”

[Updated] Gina Holland of the AP writes today, in a story headlined "Supreme Court Sidesteps Campaign Finance":
The Supreme Court said Monday that a lower court should take a new look at a challenge to federal restrictions on political advertisements, delaying a major ruling on the constitutionality of ad limits until after this year's elections.

Justices could have used the case, brought by an anti-abortion group, to spell out when so-called grass-roots ads are allowed at election time.

Without dealing with that issue, the court overturned a decision that barred Wisconsin Right to Life from broadcasting ads that mentioned a senator during his 2004 re-election campaign.

In an unsigned opinion, justices said that the Supreme Court's 2003 ruling upholding a federal campaign finance law left the door open for future challenges that the law, in practice, violated free-speech rights.

[Updated again] See this article by Tony Mauro of Legal Times.

See also this Charles Lane article in the Washington Post.

Posted by Marcia Oddi on Monday, January 23, 2006
Posted to General Law Related

Ind. Law - More on legislators' health care - voting records and questions re state employees' benefits

This is Part I of the two entries I hope to get posted today on the "legislative health care for life" issue. In this entry you will find: (1) an analysis of the voting records on the bills that made up the "package." (2) Questions I have sent to the State Department of Personnel to confirm my understanding of the health benefits available to non-legislative-branch state employees.

Part II will discuss what people knew at the time, and address the question of who are the retired legislators collecting the benefits.

Roll call votes. As discussed in this ILB entry from 1/6/06, the General Assembly passed four bills, in 2001 and 2002, to institute their health-care-for-life benefits. Here is information on each bill:

Questions sent to State Personnel. Here are the questions I emailed to the counsel at State Personnel yesterday afternoon.

1. Do retired state employees on Medicare have any state-sponsored supplemental health benefits? I know that there is a group plan via RIPEA, but that is a group plan that members of RIPEA may join to get the benefit of group rates - the State pays nothing into it.

2. Are retired state employees who are not yet on Medicare -- i.e. who take early retirement -- eligible for any health care insurance benefits from the State? My understanding is that they may elect to receive COBRA for 18 months, if they pay both parts, but that is it.

3. There is some confusing language in HEA 1667 that passed in 2001 -- it seems to provide some health benefits for state employees (other than legislators and some law enforcement personnel), but my understanding is that these have never been funded or implemented because of the costs involved. Is that correct?

[For earlier related ILB entries, select "Legislative Benefits" from the list of categories in the right column, or by selecting "Legislative Benefits" in the line directly below this entry.]

Posted by Marcia Oddi on Monday, January 23, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Court - Lobbyist linked to Abramoff quits Indianapolis firm

"Lobbyist linked to Abramoff quits Indianapolis firm" is the headline to an AP story posted this morning on the Indianapolis Star website. Some quotes:

FORT WAYNE, Ind. -- The Indianapolis-based law firm of Barnes & Thornburg has accepted the resignation of one of its Washington lobbyists implicated in the bribery and corruption scandal swirling around Jack Abramoff, a report Sunday said.

Neil Volz, one of three Barnes & Thornburg lobbyists with ties Abramoff or his Indian tribe clients, quit his job three days after Abramoff pleaded guilty earlier this month to bribery and tax evasion charges, The Journal Gazette reported Sunday.

Barnes & Thornburg's Washington office had hired the three one-time members of Abramoff's former firm, Greenberg Traurig, a year ago even as federal officials investigated Abramoff, who's accused of bilking Indian tribes of millions of dollars in lobbying fees they had paid him.

"There has never been a suggestion that any of the lobbying activities under investigation occurred at Barnes & Thornburg," the firm's managing partner, Alan Levin, said in a written statement Friday.

The two other former Abramoff associates, Kevin Ring and Edward Ayoob, remain members of Barnes & Thornburg, Levin said. The firm has more than 300 lawyers in offices in Indianapolis, Fort Wayne, Elkhart, South Bend, Chicago, Washington and Grand Rapids, Mich.

The Fort Wayne Journal Gazette originated this lengthy story yesterday, via its Washington editor, Sylvia Smith. Some quotes:
Before hiring Volz, Ring and Ayoob, Barnes & Thornburg’s lobbying practice was a small operation – one or two lobbyists with modest revenues.

But when the three lobbyists joined Barnes & Thornburg, the Hoosier firm’s lobbying revenues tripled. According to reports the firm filed with the Senate, it received $1.2 million in lobbying fees for the first half of 2005, the most recent reports filed. During the same time in 2004, Barnes & Thornburg’s lobbying arm took in $400,000.

A major jump in the firm’s lobbying income was because of the clients that Volz and Ring brought with them, particularly a wealthy Indian tribe. The Mississippi Band of Choctaw Indians, for instance, paid Barnes & Thornburg $200,000 for three months of work last year.

The Journal Gazette yesterday also carried this very long LA Times story about Ohio congressman Bob Ney.

Posted by Marcia Oddi on Monday, January 23, 2006
Posted to Indiana Law

Sunday, January 22, 2006

Ind. Courts - LaPorte County Courthouse to undergo renovation

The Michigan City News-Dispatch reports, in a story by Kristin Miller:

LaPORTE - At a brief meeting of the LaPorte County Commissioners on Friday afternoon, Ziolkowski Construction of South Bend was chosen to renovate the courthouse.

After an appropriation by the LaPorte County Council, the $2,906,057 project is scheduled to begin within the next 30 to 60 days. It's expected to take 13 months to complete, Commission President Marlow Harmon said. * * *

The price is about $1 million lower than the bid from Larson-Danielson Construction, LaPorte, the next lowest bidder.

“We're quite satisfied with them,” Harmon said of the contractor chosen for the project. He said Ziolkowski has its own brick masonry specialists and as a result, “they were able to cut their costs tremendously. “We felt by far that this was the best company to go with,” he said.

In October, architect Tim Wall of Herceg and Associates said thin pieces on the face of the exterior stone of the courthouse will be chipped off, cleaned and repaired. At ground level, especially on the north side of the courthouse, years of winter salt use on the sidewalk is evident on the stone facade.

Stones that are too deteriorated to repair will be replaced with original sandstone. Wall said the county has a supply of stone from an outbuilding that was torn down several years ago to make room for the U.S. 35 overpass. Some 100 pieces of sandstone of various sizes, shapes and quality were taken to a Highway Department garage for storage.

Along with exterior repairs, windows will be replaced and an interior skylight will be restored. In addition, the slate roof needs a touch-up, Wall said, and the bell tower will be reroofed.

Posted by Marcia Oddi on Sunday, January 22, 2006
Posted to Indiana Courts

Ind. Law - Still more on: Committee endorses bill to protect e-mail addresses

Updating this ILB entry from Jan. 19th, here from the Kokomo City website are Mayor McKillip's remarks on SB 205.

Posted by Marcia Oddi on Sunday, January 22, 2006
Posted to Indiana Government | Indiana Law

Enviroment - Wood-fueled boilers stoke pollution debate

"Wood-fueled boilers stoke pollution debate" is the headline to a comprehensive story today by Tim Zorn in the Gary Post-Tribune. Some quotes:

As heating costs soar, more people are using wood-fired boilers — an old technology with a new twist — to heat their houses. But some of their neighbors say the cheaper heat has a down side: air pollution.

Unlike a wood-burning stove, a wood-burning boiler sits outside a house in a shed-like structure. Typically, it heats water that circulates around the firebox and then goes into the home’s heating system.

Christopher Furness, who lives in a semi-rural LaPorte County area north of LaPorte, bought an outdoor wood boiler in 2004 to heat his house. “There’s a little bit of independence here,” he said. “Why do I have to be strapped to a natural gas line?”

Roy Horn, whose house sits south of Furness’, said he doesn’t notice the smoke when he’s inside, and he believes Furness has been a good neighbor. But Jim Donnelly, another neighbor, says the boiler’s continual smoke irritates his eyes and throat.

“Fuel bills are high, but that’s no reason to poison your neighbors,” Donnelly said. “I don’t understand how manufacturers can bring out a product that pollutes like that.”

The issue may become more than a neighborhood dispute as environmental agencies are starting to take a closer look at wood boilers. * * *

Wood-fired boilers aren’t for everyone. The first two criteria listed on one manufacturer’s Web site, www.freeheat-machine.com, are access to free or inexpensive wood and living in a rural area. If you have to buy wood for the furnace, one dealer said, outdoor wood boilers aren’t a bargain.

The boiler shuts down when the house’s temperature reaches the desired level; when more heat is needed, a blower starts the fire blazing again. The boiler’s fire smolders when the heating system is inactive. When the fire starts up again, thicker smoke comes out for several minutes. “It’s not a heavy smoke,” Furness said. “It’s not like burning tires.” * * *

The New York attorney general’s report, “Smoke Gets in Your Lungs,” says outdoor wood boilers “may be among the dirtiest and least economical modes of heating, especially when improperly used.”

Even properly used, it said, they emit four times as much fine particulate matter — a lung-damaging form of pollution — as conventional wood stoves and 12 times as much as EPA-certified wood stoves.

The U.S. Environmental Protection Agency has set emission standards for new wood stoves. But it has no regulations for outdoor wood boilers. * * *

Indiana is considering its own regulation but hasn’t decided yet what that would be. The Indiana Department of Environmental Management is seeking comments until March 3 on a rule for outdoor furnaces and boilers.

Options include requirements that they be located a certain distance from houses, have certain smokestack heights, burn only clean, dry wood — or no requirements at all. After the first comment period ends, residents will have more chances to weigh in with their thoughts before a proposed rule is submitted to the state’s Air Pollution Control Board.

For more ILB entries, type "wood boilers" in the search box.

Posted by Marcia Oddi on Sunday, January 22, 2006
Posted to Environment | Indiana Government

Ind. Gov't. - Matt Tully on redistricting, and legislators' benefits

Indianapolis Star columnist Matthew Tully's column today is headlined: "The me-me-mes could kill districting bill." Some quotes:

The bill [House Speaker Brian] Bosma is pushing would create a bipartisan panel to draw fair boundaries for Statehouse districts. It would end a system in which the legislature draws its own maps -- stretching districts across numerous counties, twisting and turning them to artificially dictate the partisan makeup of each district.

Bosma has a lot to gain, too. Fair districts would boost the GOP's standing in the House, because they would likely result in the election of more Republicans. Democrats for years have kept themselves in power, or close to it, with carefully crafted districts.

So they're fighting the bill, using bad arguments to buck good policy. While the bill came out of committee on a partisan vote, Senate Republicans, who have benefited from drawing their own districts, also have shown little interest.

In the end, good policy or not, the bill might die from a case of me-me-mes.

Rep. Mae Dickenson, D-Indianapolis, is worried about what a fair-minded commission might do to her district. Rep. Craig Fry, D-Mishawaka, fears good maps would keep Republicans in control of the House.

On it went. Me, me, me.

The self-interest made a perfect case for changing the system. Lawmakers shouldn't be able to use the government process to determine their own fortunes.

That'd be like letting them set their own pay, or vote on their own taxpayer-funded health and pension programs.

Oh, I forgot. They get to do that, too.

Indeed they do. The ILB has unearthed a weath of information this weekend about these health and pension programs, and will be putting together a very long entry for tonight or early tomorrow.

Posted by Marcia Oddi on Sunday, January 22, 2006
Posted to Indiana Government

Saturday, January 21, 2006

Law - Jarndyce and Jarndyce drones on, and on

From, of course, the first chapter of Dickens' Bleak House:

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.
Sunday evening, reports Reuters, the newest adaption begins on Masterpiece Theater "where its eight hours will be shown over six successive Sunday evenings."

Today's Washington Post has a rave review, headlined "Miniseries Does Supreme Justice to Dickens's 'Bleak House'".

The NY Times has a review that begins: "Bleak House is too good to be homework." More from the review:

The story starts at a spine-tingling pace: a young woman cloaked in gray is swept up in a swirl of rain, fog and mud and sped to London by horse-drawn carriage. It is a romantic journey to the most unromantic of places, the chancery courts. The orphan heroine, Esther Summerson, has been summoned by a stranger, John Jarndyce, to serve at Bleak House as a companion to Ada Clare, who, along with her cousin Richard Carstone, is a ward of the court pending a resolution of the infamous lawsuit Jarndyce v. Jarndyce.

Almost all the bad deeds and ill fortune in "Bleak House" trace back to an inheritance bogged down for generations in never-ending details and dispute. ("There are several wills and fragments of wills," one lawyer says. "All of them different and all of them conflicting.") The novel is perhaps most famous as a denunciation of the British courts - Dickens worked briefly as a law office clerk and court reporter, the blacking factory of his legal experience. But "Bleak House" contains almost every other imaginable Dickensian theme and convoluted plot twist, as well as some of the author's more delicious secondary characters.

Finally, here is the PBS Masterpiece Theater Bleak House website. It includes important features such as the cast of characters.

Posted by Marcia Oddi on Saturday, January 21, 2006
Posted to General Law Related

Ind. Courts - Wabash County prosecuting attorney to seek reelection

The Wabash Plain Dealer reports today:

William Hartley Jr., Wabash County prosecuting attorney, has announced that he will be seeking re-election this year. * * *

Following law school, Hartley practiced law in Merrillville for about two years before returning to Wabash. From 1998 through 2002 he served as deputy prosecuting attorney for Wabash County, handling most criminal cases in Wabash Superior Court.

Since 2003 he has served as the elected prosecuting attorney handling major felony cases and child support cases in Wabash Circuit Court.

Posted by Marcia Oddi on Saturday, January 21, 2006
Posted to Indiana Courts

Law - Rep. Mike Pence feaured on C-SPAN's Q&A this Sunday

Indiana Rep. Mike Pence will be the focus of an hour-long Brian Lamb interview on C-SPAN's Q&A this Sunday:

Sunday, January 22, 2006, on C-SPAN at 8pm/11pm ET

Rep. Mike Pence discusses leadership elections in the Republican party and the effect of the Abramoff/Cunnigham investigations on ethics reform in House.

Posted by Marcia Oddi on Saturday, January 21, 2006
Posted to General Law Related

Friday, January 20, 2006

Ind. Law - Chesterton looks at 'big box’ ordinance

The Gary Post-Tribune reports today, in a story by Diane Krieger Spivak:

CHESTERTON - Following Crown Point’s lead, Chesterton planners on Thursday took the first step toward drafting standards for “big box,” or large retail, developments.

The Plan Commission slated a workshop for 6:30 p.m. Feb. 16 to look at a means of controlling the megasize stores, likely through an ordinance.

“I think Chesterton’s going to change in the next few years and we need to be ready,” said Plan Commission member Jeff Trout, who made the proposal shortly after the Plan Commission set a public hearing next month on a proposed shopping mall east of Indiana 49.

That mall, proposed by GK Development of Barrington, Ill., has commitments from Kohl’s and Target.

“This has nothing to do with that development,” Trout said, complimenting GK for its promise to make those stores unique and “not like any Target and Kohl’s you’ve seen,” as architect Wayne Marth had stated earlier in the evening.

“We’re fortunate this one came to us as a Planned Unit Development,” Trout said.

The PUD zoning gives the town more control and greater flexibility in the design of the mall.

“I’m happy we have developers going the extra mile to create a different look and feel,” he said.

But Trout said it was time the town looked at “making changes to ordinances to help control big box development I think may be coming down the road.”

The Chesterton Tribune also has a story, including these quotes:
Commission member Jeff Trout, who suggested the ordinance changes, described them as “a fairly urgent issue to address.”

Trout noted because of the zoning on GK’s proposed site, that mall is being presented as a planned-unit development or PUD that requires town approvals. However, other commercial land exists in town that already is zoned for retail and “someone could put up the most boring strip mall you’ve ever seen and we couldn’t do anything about it.”

He suggested commercial buildings larger than a certain size, perhaps 60,000 square feet, would have to be presented as a PUD or have to obtain a variance from the town to be built.

These concepts have been used in other cities and towns, most recently Crown Point to discourage a Wal-mart from locating there. Associate town attorney Charles Parkinson said he would obtain sample ordinances for the workshop.

Trout said he isn’t trying to set up barriers or block development, only to make sure it’s what the Chesterton community wants and the town has input how it’s done. Referring to GK’s plans, “I’m happy the developers here are out to go the extra mile to create a different look and feel.”

The ILB has had a number of "big box" entries - use the search box to locate them.

Posted by Marcia Oddi on Friday, January 20, 2006
Posted to Indiana Law

Ind. Courts - Former Monroe County prosecutor Miller announces for judge

Adapted from a news release today:

Bloomington Attorney and former Monroe County Prosecutor Bob Miller announced his candidacy for the office of Judge, Monroe Circuit Court, Division V, on Wednesday at a ceremony held at Democratic Party Headquarters in Bloomington. The seat is currently held by Douglas R. (Randy) Bridges, who has indicated that he will not seek another term.

Miller has been a Bloomington resident for 29 years and is a 1980 graduate of the Indiana University School of Law, Bloomington.

In addition to serving as Monroe County Prosecutor from 1987 to 1994, Miller has been engaged in the private practice of law in Bloomington with the law firm of Miller & Gaal.

He has personally conducted nearly 100 jury trials and supervised countless more. He is a former member of the Board of Directors of the Indiana Prosecuting Attorneys Association; Regent Emeritus of the Association of Certified Fraud Examiners; and, former instructor with the National White Collar Crime Center and the Association of Certified Fraud Examiners.

Miller emphasized his commitment to a strong and independent judiciary, and to a legal system that is fair to all.

Posted by Marcia Oddi on Friday, January 20, 2006
Posted to Indiana Courts

Ind. Decisions - Two today from the 7th Circuit, one is from Indiana

In USA v. Serrano, Roberto (ND ind., Theresa L. Springmann, Judge), Judge Evans writes:

Roberto Serrano, also known as Eddie Roncone, was tried and convicted for aiding and abetting distribution of cocaine in violation of 21 U.S.C. § 41(a)(1) and 18 U.S.C. § 2. In this appeal he challenges certain evidence introduced at his trial. For reasons we will explain, we affirm the district court’s decision to admit the evidence.
Sornberger, Scott v. City of Knoxville, Illinois is a 46-page opinion involving claims of false arrest.

Posted by Marcia Oddi on Friday, January 20, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals decides two today

Alfred G. Nelson v. State of Indiana is an interesting 6-page case involving a charge of failure to stop at an accident resulting in death. Judge Friedlander writes:

Both parties agree that this appeal revolves round a single question: Do the duties of a motorist, as set out in I.C. § 9-26-1-1, arise in an incident in which his or her vehicle did not make physical contact with another vehicle or person? The parties further agree that the resolution of that question involves two Indiana cases. We will begin our analysis there. * * *

We believe Armstrong was correct in interpreting I.C. § 9-26-1-1 such that the duties set out therein are triggered regardless of whether the driver’s vehicle struck anyone or anything, so long as the driver’s vehicle was involved in an accident. Thus, we also decline to follow Honeycutt. This does not end the matter, however. Nelson contends that even if we reject Honeycutt and decide that Armstrong represents the correct interpretation of I.C. § 9-26-1-1, that rule represents a change in the law that should not apply to him. We agree. Armstrong addressed the same question, as reflected in the following:

In declining to follow Honeycutt, we acknowledge that our interpretation is so markedly different as to cause concerns about retroactive application to Armstrong. Constitutional provisions against ex post facto laws apply only to enactments by legislative bodies. … However, this court has recognized that the principle underlying the prohibition of ex post facto laws “may limit the retroactive application of judicial decisions interpreting statutes.” * * *
The principle announced in Armstrong concerning the necessity of physical contact between the defendant’s vehicle and another person or thing, constituted a significant change in the interpretation of I.C. § 9-26-1-1. We see no meaningful distinction between this case and Armstrong with respect to the issue of retroactive application. Accordingly, the Honeycutt interpretation of I.C. § 9-26-1-1 must be applied to Nelson’s actions in this case. Under those circumstances, the trial court should have granted Nelson’s motion to dismiss under Honeycutt. [i.e. there was no physical contact] Judgment reversed.
Note footnote 3 of the opinion: "The State petitioned for transfer following our decision reversing Armstrong’s conviction. Our Supreme heard oral argument on the State’s petition on April 14, 2005. As of the date of this decision, however, the Supreme Court had not yet ruled on the petition to transfer. Unless and until the Supreme Court’s grants the transfer petition, Armstrong remains good law. Ind. Appellate Rule 58."

For more
on the Armstrong decision, see this ILB entry from March 2, 2005.

In Edwin A. Thomas v. State of Indiana, a 17-page opinion, Judge Robb writes:

Thomas’ convictions under Counts 1 and 3 do not violate Article I, Section 14, but his conviction under Count 4 does and must be vacated. Thomas’ convictions under Counts 5 and 6 do not violate Article I, Section 14. The trial court did not abuse its discretion in denying Thomas’ motion for a mistrial because Thomas did not show that he was placed in a position of grave peril. The trial court erred in enhancing Thomas’ sentences because the in loco parentis aggravator violated Thomas’ right to trial by jury under the Sixth Amendment, and because Thomas’ criminal history was not of sufficient weight to justify an enhancement. We remand the case to the trial court so that it can vacate Thomas’ conviction under Count 4 and reduce Thomas’ remaining sentences to the presumptive sentence. Otherwise, Thomas’ convictions are affirmed.

Posted by Marcia Oddi on Friday, January 20, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending January 20, 2006

Here is the Indiana Supreme Court's transfer list for the week ending January 20, 2006.

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, January 20, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending January 20, 2006

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 January 20, 2006. There are 37 Court of Appeals cases listed this week.

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

Posted by Marcia Oddi on Friday, January 20, 2006
Posted to NFP Lists

Ind. Courts - In reversal, Lake judges join "efficiency study"

"Judges join efficiency study: Earlier decision to opt out of Good Government Initiative is reversed" is the headline to this story by Bill Dolan in today's Munster (NW Indiana) Times. Some quotes:

CROWN POINT | Lake Circuit and Superior Court judges will participate this year in the Good Government Initiative, a study of local government efficiency.

Chief Superior Court Judge John R. Pera said this week that the 17 civil, criminal, county and juvenile division judges agreed Wednesday to let consultants from Maximus, of Reston, Va., and National Center for State Courts, of Williamsburg, Va., examine the speed and cost of the administration of justice.

"We are grateful for the opportunity to improve our court. We look at this as an opportunity to inspire public confidence in the judiciary," Pera said.

They join the rest of the county's elected officials who will come under the Good Government microscope beginning next month. Results of that study could be public this summer

A majority of the judges, who spend roughly 30 cents of every tax dollar, voted last November to stay out of the initiative, complaining it violated the independence of the judicial branch. * * *

The judges were under pressure from other elected county officials who complained the growth in the cost of local government in recent years was the creation of new courts and larger judicial staffs. * * *

Pera said one of the keys to getting complete judicial participation is the agreement to use the National Center for State Courts in the examination because of its expertise in judicial matters.

Pera said the study will examine if the courts are accessible enough to the public, considered effective by its own employees and disposes of cases in a timely manner.

It also will look at the cost to handle each case and whether judges call too many or too few residents as potential jurors for trials.

Pera said the study won't re-examine trial results or judicial rulings in individual cases and consultants won't have access to confidential information about persons appearing in juvenile, criminal or civil proceedings.

For background on the courts' position, see these ILB entries from 12/7/05 and 12/19/05.

Posted by Marcia Oddi on Friday, January 20, 2006
Posted to Indiana Courts

Ind. Law - Wine-shipping bill moves to House floor

The wine shipping bill that was the focus of this lengthy ILB entry yesterday, is reported on today in this story by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

House members on Thursday approved a tentative compromise dealing with the ability of in-state wineries to ship directly to consumers – but no one was exactly happy.

Rep. Marlin Stutzman, R-Howe, chairman of the House Public Policy and Veterans Affairs Committee, said the amended House Bill 1190 is a work in progress and the result of initial dialogue between all the players. The committee passed the bill unanimously, sending it to the entire House.

Indiana wineries want permission to ship directly to in-state customers – a business practice taken away by the Alcohol Tobacco Commission last year after a U.S. Supreme Court decision.

But the matter is complicated because both retailers and wholesalers – two components of a three-tier alcohol delivery system – don’t want to be left out of the loop.

Under the bill, a consumer would order and pay for wine from an in-state winery, which would then call its local wholesaler. That wholesaler would be required to pick up the wine within two days from the winery. The winery would pay the wholesaler a fee not exceeding $2 per bottle or $4 per case, which would be built into the customer’s cost.

Then the wholesaler would deliver the wine to a local package liquor store within five days where the consumer would pick up the wine. The consumer also must pay a fee not exceeding $2 per bottle or $4 per case to the store.

Now really! Before the U.S. Supreme Court ruling liberalizing wine shipping, Indiana wineries shipped directly to in-state customers, without any red tape! And what about out-of-state wine sales, both in and out of Indiana?

Posted by Marcia Oddi on Friday, January 20, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - Canned hunting draws fire in Fort Wayne editorial

The Fort Wayne Journal Gazette contains this editorial today. A quote:

An Indiana House committee and a North Manchester lawmaker demonstrated they are more interested in serving special interests than most of their constituents in supporting a bill to authorize the grotesque, unsportsmanlike practice of canned hunting. * * *

Hoosiers aren’t running to the legislature seeking this bill, which serves only the owners and operators of the existing canned hunting operations. In fact, public opinion most likely turned against high-fenced hunting after testimony in a January 2005 federal court trial described some of the practices of a Miami County operation. Those practices included shooting deer with tranquilizers, moving them to smaller pens, then taking hunters to tree stands near feeders in those pens.

Some sport.

For background, see this ILB entry from 1/18/06.

Posted by Marcia Oddi on Friday, January 20, 2006
Posted to Environment | Indiana Government | Indiana Law

Ind. Law - It's tough to separate politics, redistricting

"It's tough to separate politics, redistricting: Plan for bipartisan panel to draw boundaries gets 1st OK on -- surprise! -- a party-line vote" is the headline to this story today by Indianapolis Star political writer Mary Beth Schneider. Some quotes:

A bill creating a bipartisan commission to draw legislative district lines passed its first legislative hurdle Thursday -- but along partisan lines.

Each of the seven Republicans on the House Elections Committee voted to support House Bill 1009, which creates the commission, while each of the five Democrats voted no. The bill now moves to the full House for debate.

The legislation is intended to help create more competitive races, so fewer voters go into the polls knowing that one or the other major party has such an enrollment advantage that it's next to impossible for it to lose. * * *

The National Conference of State Legislatures said 12 states have redistricting commissions whose opinions are final, two states have advisory commissions and five have commissions that take action only if the legislature doesn't.

The Indiana Constitution puts the job in the hands of lawmakers. That, said Rep. Ed Mahern, D-Indianapolis, is why the commission is a bad idea. * * *

Currently, the political party that wins control of the House or Senate in a census year draws the legislative maps for that body, which are supposed to reflect any population shifts. In 2001, for instance, Republicans held, as they do now, the Senate majority and drew those districts, while Democrats who then controlled the House drew up House districts. * * *

Under [Rep. Gerald R. Torr's] bill, a bipartisan commission would draw the maps. Each of the four legislative leaders -- two from each party and each chamber -- would appoint a member, with the fifth member appointed by the chief justice of the Indiana Supreme Court.

Members could not have been legislators, lobbyists, top campaign officials or certain other officeholders for at least six years.

The legislature would have to approve the new maps.

A sidebar notes: "The legislature would be called to a special session to approve the commission's maps. They would be limited to making only technical amendments, not major changes. The bill so far is silent on what happens if the legislature rejects the maps."

Read the bill for yourself here: HB 1009.

Lesley Stedman Weidenbener writes in the Louisville Courier Journal:

House Speaker Brian Bosma — in what he said would be his only committee testimony of the session — said the commission would take the politics out of redistricting. That process occurs every 10 years, after federal officials release new population data obtained in the U.S. Census. * * *

But Democrats said that the bill is unnecessary and that the changes in party control of the House in recent years are evidence that the current system keeps races competitive.

The bill would create a five-member commission, with one member appointed by the leaders of each party in the two legislative chambers. The Indiana Supreme Court chief justice would appoint the chairman.

The group would meet in the spring and summer of a redistricting year, holding at least three public hearings -- one each in the northern, central and southern parts of the state. Also, the commission would make census data available to the public so the public could recommend district lines.

The commission would be assigned to develop districts based on population and compactness, with an emphasis on keeping communities within one district where possible.

The bill also calls for the 100 House districts to be "nested" within the 50 Senate districts. That means the boundaries of each Senate district would contain two House seats.

Once the maps were finalized, the General Assembly would convene a fall special session and vote on them.

But the bill is silent on what would happen if lawmakers reject the recommendation.

The bill's author, state Rep. Jerry Torr, R-Carmel, said he believes lawmakers -- under pressure from the public -- will approve the commission's recommendation. If they don't, Torr said, the House and Senate probably would have to rewrite the law and then draw and approve their own maps.

Rep. Paul Robertson, D-Depauw, said gaining approval for the independent commission's recommendation probably wouldn't be easy, especially if the maps pit incumbents against each other or if they would obviously put one party into power. * * *

But Rep. Ed Mahern, D-Indianapolis, said he believes that even giving the commission the job of drawing maps and making a recommendation violates the constitution. The constitution reads, in part:

"The General Assembly elected during the year in which a federal decennial census is taken shall fix by law the number of Senators and Representatives and apportion them among districts."

Also, Mahern said, the bill violates the separation of powers clause of the Indiana Constitution by giving the chief justice the power to appoint the chairman of a commission charged with a legislative duty.

"That creates a further problem if the maps end up in court," Mahern said.

But the bill received endorsements from two key groups: the League of Women Voters and Common Cause.

Jennifer Whitson of the Evansville Courier& Press writes today:
After the commission draws up new districts, the Legislature would still have to vote on them in bill form. The bill is silent on what would happen if the Legislature is unable to pass the bill.

Torr said that in that case, lawmakers could scrap the commission's recommendation, pass a bill to undo the commission's creation and then pass another bill setting up district lines themselves.

Democrats on the committee asked what the new districts would mean for federal requirements not to water down the voting power of minority blocks.

They also questioned whether putting a judicial appointment in charge of a task that the state constitution's gives to the legislature would pass muster in the case of a lawsuit.

"We would have the Chief Justice involved in what constitutionally is our duty," said Rep. Ed Mahern, D-Indianapolis. "The only way you're ever going to get a commission, in my mind, is to amend the constitution."

Niki Kelly's article in the Fort Wayne Journal Gazette reports:
Democrats in the House have drawn the maps for the past three decades, sometimes leading to gerrymandered districts that protect incumbents and build districts that lean Republican or Democratic based on voting data.

Under House Bill 1009, each of the four caucus leaders would appoint a person to the commission. The fifth member of the panel – and the chairman – would be appointed by the chief justice of the Indiana Supreme Court.

That post has belonged to Republican Randall T. Shepard since 1987.

See also this 1/10/06 ILB entry on the proposal, and this 1/16/06 entry.

Posted by Marcia Oddi on Friday, January 20, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - Tully re Senate health care for life: "Garton clearly doesn't get it"; "An affront to Indiana taxpayers" says editorial

Indianapolis Star columnist Matthew Tully's report today is headlined "Sen. Garton's fence-sitting on perk must be painful." Some quotes:

[Senate President Pro Tem Robert Garton] this week dodged and double-talked and did everything he could to defend the legislature's ridiculously generous Taj Mahal of an insurance program.

"This was not my issue," the Columbus Republican said at a news conference Wednesday.

Oh, but it was. He was among the leaders who in 2001 and 2002 backed laws giving new low-cost but wonderful health-care benefits to current and former state lawmakers -- and their families.

For life. Long after they've left the legislature. Mostly at the expense of taxpayers, of course.

How generous is it? According to a report in The Indianapolis Star this week, the plan covers "legislators, his or her spouse, surviving spouse, divorced spouse and any dependent children."

Boy, let's give our self-serving legislators a hand for stopping with their ex-wives and ex-husbands. I mean, what about their mothers-in-law? Or their college roommates? Their cats? * * *

So far, Garton has punted, promising vague changes but keeping the taxpayer-funded charity for senators in place.

He punted at Wednesday's news conference, when he brought along Sen. David Long, R-Fort Wayne, to take the lead. Long grumpily said the health plan was "under review" and that the Senate has hired an actuary to study the issue.

What's to study? This boondoggle is another example of politicians taking care of themselves and their pals. The Senate should kill it. Now.

Don't count on that. Because Garton clearly doesn't get it.

Instead of killing the program, he talked gently about Senate staffers covered by it. Then he admitted that the program covers only one Senate staffer. * * *

Up for re-election this year, [Garton] has to know voters won't be laughing at this joke of a health-care program. On the other hand, he knows his Senate buddies don't want their benefits cut.

So the Senate's longtime leader is in quite a spot, left to defend an indefensible program.

An editorial today in the Evansville Courier& Press opines:
Senate President ProTem Robert Garton says they are reviewing the benefit for senators. What is to review?

It is an affront to Indiana taxpayers, many who cannot afford their own health insurance. Senators who serve for six years and one day and who left the Senate after Dec. 31, 2000, are entitled to lock in the current employee rate of contribution for monthly premiums for life. As those premium costs go up, taxpayers are obligated to pay the difference.

It was Republican Garton, along with then-Democratic Speaker John Gregg, who supported legislation that created the benefit for future lawmakers in 2001.

Perhaps the view of Garton and others is that serving in the Legislature is a career post, one that requires lifetime benefits. We don't see it that way, and we suspect the public doesn't either.

It is a citizen Legislature, for which Hoosiers take time away from their regular employment or other life duties to serve their state. During that time, they are rewarded with pay, expense money and other benefits. We appreciate what they do; it is challenging public service. But we do not regard them as full-time professional lawmakers, regardless of how they may see themselves. For that reason, Garton should follow Bosma's lead and halt the benefit in the Senate.

[For earlier related ILB entries, select the "Legislative Benefits" link immediately below, or from the list of "Categories" in the right column.]

Posted by Marcia Oddi on Friday, January 20, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Thursday, January 19, 2006

Ind. Law - More on: Committee endorses bill to protect e-mail addresses [UPDATED]

Was it only yesterday - it seems like longer ago - that the ILB posted this entry on SB 205, and noted:

There may be much more to this story than meets the eye. The bill's author is Senator Jeff Drozda, Kokomo. The Mayor of Kokomo has been engaged in a dispute with a "youthful political operative" who sought a copy of the email list the Mayor and the City use to send out newsletters.
Today the Kokomo Perspective has this article by Paul Allor headlined "Drozda takes McKillip’s battle to the legislature." Pretty interesting. Some quotes:
This Friday, the case of Ryan Nees v. Matt McKillip will convene in Howard County Circuit Court. But State Sen. Jeff Drozda had introduced legislation that would quash anyone hoping to follow Nees' path.

Nees, a 16-year-old Western High School student, is seeking access to a list of e-mail addresses compiled by the mayor, and used to send out e-mail updates. Last year Indiana's Public Access Counselor ruled that the city of Kokomo must turn over the list. But McKillip declined to do so, saying he disagreed with the counselor's interpretation of the law, and wanted to protect the privacy and safety of those on the list.

After Nees sued, McKillip and Drozda discussed changing Indiana law. Drozda said his legislation is a direct result of Nees' conflict with the mayor, although it will likely not affect the current lawsuit.

“I question whether Drozda is doing this for the public good or just carrying water for the mayor,” Nees said. * * *

Under current law, a list of standard mailing addresses kept by a city cannot be copied but is open to public inspection. So, a citizen can view the list but cannot take a copy of it with him when he leaves.

Drozda said his legislation would make e-mail addresses be treated the same .

“I think if you read the language, it does say that they can be inspected,” he said. “The intent is not to make e-mail addresses any different from other addresses.”

But in actuality Drozda's bill goes a step further, protecting e-mail addresses not only from duplication, but also from any form of inspection, meaning any e-mail lists maintained by the government could be completely secret.

The Perspective discussed the bill with, and showed it to, several attorneys, all of whom said Drozda misunderstood his own legislation.

And while Drozda stressed that e-mail lists should not be completely sheltered from the public, McKillip said exactly the opposite.

“It seems odd to allow it to be inspected,” McKillip said, “when somebody who wants to sit there for weeks on end could just copy them all down.” * * *

William Groth, Nees' lawyer, said the legislation would allow public officials to create “a new secretive mode of communication,” by simply corresponding by e-mail instead of standard mail.

“If anything we ought to be making documents more open to the public not less, and this measurement, as I understand it, represents a step backwards,” Groth said.

But McKillip said the need for an open government is outweighed by the potential for abuse.

“There's just a litany of very destructive things that could happen as the (e-mail) list could get passed, possibly from person to person to person,” McKillip said.

[Updated 1/20/06] This thought occurred to me this morning. What about voter rolls? See this ILB entry from 3/28/04 about access to voter registration information.

Posted by Marcia Oddi on Thursday, January 19, 2006
Posted to Indiana Law

Ind. Courts - News on Howard County Judges Hopkins and Jessup

From the Kokomo Perspective today, a fairly lengthy story by Lisa Fipps headlined "Judges asked me to give up criminal cases: Superior Court II judge under fire for bond policy; other judges say it contributes to jail overcrowding issue." It begins:

It’s not surprising that the creation of Superior Court IV caused drastic changes for the new judge, George Hopkins. But Superior Court II Judge Stephen Jessup was surprised by the changes it created for him: His criminal caseload has been drastically reduced.

And he thinks the reason why is because he sets high bonds for criminals.

For about the past month, Jessup has started setting lower bonds - which comes none too soon for the other three judges, Jessup alleges.

“I’ve been getting pressure from the coordinating committee ... concerning jail overcrowding,” Jessup said.

He said he was told that by setting high bonds he was contributing to overcrowding at the jail because those who couldn’t pay the bonds had to sit in cells while they awaited trail.

Superior Court I Judge William Menges said, “There was a period of time when there were more people in the jail out of Superior II than Circuit and Superior I combined.”

“As far as the jail numbers, ... it’s been a real concern,” Circuit Court Judge Lynn Murray said.

“I had more than the other courts of people in jail awaiting trial,” Jessup admits.

Because of that, Jessup contends, “Menges came into this office and said they were of the opinion I should give up criminal jurisdiction, and I told him no, in no uncertain terms.” By “they” Jessup refers to Menges, Murray and Superior Court III Judge Doug Tate.

And that was just the beginning ...

The Perspective also has a story today about the new judge - also by Lisa Fipps, the piece is titled "Here comes the judge: George Hopkins reflects on transition from law practice to bench." Some quotes:
From the time Gov. Mitch Daniels appointed George Hopkins to the Superior Court IV bench, he prepared himself to be judge. He wasn't prepared for one thing, though: leaving his law office.

“When I left my office and shut the door for the final time, I thought, 'This is the last day I'll practice law,' and that kind of gets to you,” he said, standing in his chambers.

But the changes have also been exciting, giving Hopkins a chance to realize a dream.

“It's one of those things that is such an important thing in a life,” Hopkins said, trying to find words to describe how he felt donning the black robe for the swearing-in ceremony. “You realize the awesome responsibility at that point.” * * *

Hopkins said, “One of the things I tried to do … was I sat down with each of the judges individually and talked to them about the number of questions I had about how they handled things.” They were all “very forthcoming” and “very helpful,” he said.

“The whole goal was to be in operation at 8 o'clock on Friday (Jan. 6) morning, and we met that goal,” Hopkins said.

Superior IV is a court of general jurisdiction, just like the other courts. There's a schedule to distribute cases. So the first criminal cases didn't start trickling in until Jan. 16.

“I don't think there's going to be a mass transfers into the court,” Hopkins said. So, to date, his docket has been light. “Quiet,” “slow,” that's how he describes it. “But that's not unexpected. It's going to be a gradual speed up.”

In the meantime, Hopkins has to get used to one thing: being called judge.

“It takes a while,” he said, adding that whenever he hears someone say judge, “I keep looking around. I wonder what judge walked in behind me.”

Posted by Marcia Oddi on Thursday, January 19, 2006
Posted to Indiana Courts

Law - FDA Tries to Limit Drug Suits in State Courts [Updated]

"FDA Tries to Limit Drug Suits in State Courts: Agency's 'Federal Preemption' Policy Included in Labeling Guidelines for Medications," is the headline to this lengthy story today in the Washington Post. Some quotes:

People who believe they were injured by drugs approved by the Food and Drug Administration should not be allowed to sue drug companies in state courts, the agency said yesterday in a formal policy statement.

The FDA's controversial assertion of "federal preemption" was included as a preamble to long-awaited guidelines designed to make drug labeling information more accessible and readable for doctors and consumers. Agency officials said that though the preemption policy does not have the weight of law or formal regulation, they hope state judges will accept their position. [my emphasis]

Included in a preamble?

For more information, see the 1/18/06 FDA press release here. The bottom of the page includes links to the rule, which has not yet been published in the Federal Register. The rule is in three very large (about 9MB each) parts, because it is scanned. Part 1 includes the preamble language discussed in the Post story; look at the discussion on pages 38-47.

[Updated 1/26/06]
The 1/19/06 NY Times had an article titled "New Drug Label Rule Is Intended to Reduce Medical Errors" that included this:

Trial lawyers reacted angrily to a preamble to the new rule stating that the rule pre-empts, or supersedes, state liability statutes.

In the preamble, the agency listed six claims against drug makers that would be prohibited as a result of the rule, including claims that a drug maker should have put into a label's ''highlights'' section a risk warning included elsewhere in its label, or claims that a drug maker should have included a warning that the drug agency deemed unnecessary.

''Overwarning, just like underwarning, can similarly have a negative effect on patient safety and public health,'' the preamble states.

Drug agency officials have for years made similar arguments in some product liability trials, but the preamble may provide broader protections to drug makers, former agency lawyers said.

''It will make it impossible to file liability claims,'' said Peter Barton Hutt, a former general counsel for the agency who is in private practice. Other lawyers suggested that the preamble would provide far less protection to drug makers.

Representative Maurice D. Hinchey, Democrat of New York, said that the liability provisions of the new rule showed that the drug agency ''has once again gone to bat for the drug industry.''

Chris Mather, a spokeswoman for the Association of Trial Lawyers of America, called the preamble ''the scariest example yet of how much power drug makers have in our political process.'' Ms. Mather said that the drug agency did not have the authority to issue such a waiver.

Drug labels had become confusing for several reasons, said Dr. Janet Woodcock, deputy commissioner of the agency. First, liability and marketing concerns had gradually displaced physician education as the principal focus of label writers, Dr. Woodcock said. Second, far more is known now about how drugs work in the body than was the case 20 or 30 years ago, and much of that information has to be included in drug labels, she added.

And third, ''There are more drugs than ever, and physicians have less time than ever in every patient encounter,'' Dr. Woodcock said.

The new label rule will apply to all new drug approvals, to drugs approved within the past five years, and to any drug for which a major label revision is requested. Older drugs can avoid the requirements, although Dr. Woodcock said that doctors were often already far more familiar with the risks and benefits of older medicines.

Posted by Marcia Oddi on Thursday, January 19, 2006
Posted to General Law Related

Ind. Law - Small wineries in Illinois buffeted by the alcohol-distribution lobby; What is happening in Indiana?

"Small wineries in Illinois buffeted by the alcohol-distribution lobby; What is happening in Indiana?" was the headline to this ILB entry from Jan. 11th.

Today the answer to the question seems to be: The same thing is happening in Indiana. Here are two stories.

The first is from the column, Uncorked, by Dan and Krista Stockman, that appears in the Fort Wayne Journal Gazette. Here are a few quotes from last weekend's lengthy column:

You might think proposed legislation that clearly spells out how Indiana’s wineries can legally ship their products to Indiana consumers has a good chance at being approved and signed into law.

After all, it makes perfect sense: It supports small businesses, family businesses and farming, helps the state’s newest darling – agri-tourism – and is good for consumers.

But we can think of at least 181,000 reasons why it might have the same chance as the “Sideways” character Miles ordering a Merlot with his dinner.

According to the reports filed with the state by the Wine & Spirits Wholesalers of Indiana Political Action Committee, from 2000 through 2004 the lobbying group gave $181,043.21 to Indiana politicians and candidates. Large and small, prominent and obscure, Republican and Democrat, the wholesalers who have been fighting direct-shipping have spread around an average of $36,000 a year.

Now, we’re not suggesting that the wholesalers have purchased the legislature for a mere $36,000 a year. Heck, even Illinois politicians – whom we dealt with for years and know many deserve the reputation they’ve gained – aren’t that cheap. But the wholesalers do spread the wealth – and in politics, that means access. * * *

Will it be enough to get them to vote in favor of a closed system that replaces a free market with a state-enforced monopoly? Will it be enough to have them turn their backs on small family businesses and farmers? Or consumers who just want to order a bottle of southern Indiana wine they can’t get in Fort Wayne?

We’re certain that if they do vote against shipping, it will be because they really believe it would be bad for the state. But that kind of money being thrown around has to make you nervous.

There is hope, but it comes with some scares. Consider the case in Michigan, where the state, just like Indiana did, immediately clamped down on direct shipping after the U.S. Supreme Court said in-state and out-of-state wineries have to be treated the same.

Both states tried to even the playing field by barring in-state shipping, thus closing the door to shipping from out-of-state.

In Michigan, a bill appeared in the Legislature that would have barred Michigan wineries from even selling wine in their own tasting room. Despite statewide outcry, the bill advanced unchecked for weeks. We’re sure it had nothing to do with the findings of the Detroit Free Press, which showed the Michigan wholesalers had made $238,000 in donations to Michigan lawmakers and let them use their party room to raise another $440,000. The trips to the Bahamas and Grand Cayman Island also had nothing to do with their voting for a bill their citizens hated, we’re sure.

Finally, however, common sense prevailed, and a bill that allows direct shipping cleared the Michigan Legislature and was signed into law.

But what will happen in Indiana? * * *

[I]f common sense can prevail in Michigan, it certainly can prevail here.

Gov. Mitch Daniels told Uncorked recently that he’s leaning in favor of shipping, saying the recent temporary injunction allowing in-state shipping until March 1 appears to be an interim solution “and seems to be a good thing.”

“I do want to see these small businesses protected,” Daniels said. “I’m hopeful we can get a permanent solution that allows them not to just maintain their business, but increase it.”

Increasing the business opportunities available to winemakers is exactly the goal of legislation introduced in the House by Reps. Eric Koch, R-Bedford, and Peggy Welch, D-Bloomington, and in the Senate by Sen. Brent Steel, R-Bedford.
Not only would the legislation allow shipping – by both in- and out-of-state wineries – it would expand when and where wineries can sell their wines. * * *

[I]t would limit the amount of wine a winery could ship to an individual to 24 cases or 9 liters a year. That’s certainly a legitimate restriction. We can’t imagine most people needing even 24 cases in a year, but there may be some who buy wine as gifts for a lot of people, employees, for example, that would need a lot of wine from one winery. And if 24 cases from one winery aren’t enough, they’ll just have to buy from two or three wineries.

To be able to ship wine, a winery would have to pay a $100 registration fee, collect sales and excise taxes from Indiana buyers and ship the wine in a clearly-marked package requiring a signature. None of these restrictions seem unreasonable.

So if this sounds good to you, ask your local representatives to support the legislation. The more they hear from you, the more they’ll understand what their constituents want – that’s very important to elected officials. Remember, if lawmakers don’t hear your voice, the only voice they’ll hear is that of the wholesalers.

Today columnist Mike Leonard of the Bloomington Herald-Times reports:
Monday morning, in the kind of move that makes many people revile the political system, legislators in the pocket of the wholesalers stripped the language out of bills favorable to wine consumers and wineries (co-written by state Rep. Eric Koch, R-Bedford and Rep. Peggy Welch, D-Bloomington) and inserted essentially new bills that could have been written by the wholesalers themselves.

It was a classic, strip-and-replace move at the last minute, clearly aimed at flying under the radar so that wineries and consumer groups would not have time to mobilize against the legislation.

"What they're proposing is an unworkable system, basically, a barrier to free trade," Indianapolis attorney Robert Epstein said Monday afternoon as he pored over amendments offered to a subcommittee one day before an expected vote by the House Committee on Public Policy and Veterans Affairs.

At first blush, the most onerous aspect of the proposed legislation seems to be the requirement that any consumer who wants to order wine not available at a local, commercial retailer to set up a one-time personal distribution system. The consumer would have to find a wholesaler willing to obtain the wine from the producer and then a retailer willing to take shipment from the wholesaler. Everyone involved would add monetary fees for their time and trouble.

The legislation proposed also sets up a "direct wine seller's permit" at a cost of $500 to further discourage the sale of wine not already in the wholesaler-retailer pipeline.

And if that's not enough, there is a provision that wine not available for sale in retail stores can be shipped only after a "face-to-face transaction on the farm winery premises."

Could they think of any more ways to crush wine shipping and cripple the 32 Indiana farm wineries? Some winery advocates say that half of Indiana's wineries could close under such legislation.

More from the column:
Some background information is required here. For three decades, Indiana wineries such as Oliver Winery and Butler Winery in Bloomington have been shipping wine, in-state, to visitors to their winery stores. Primarily, it's a convenience for consumers who visit a winery and don't want to haul a case of wine around in their trunk as they wander Indiana.

Hoosier wineries voluntarily declined to ship out-of-state at the advice of what is now called the Indiana Alcohol and Tobacco Commission. And most out-of-state wineries declined to ship to Indiana because of warnings from the state that shipments would constitute a felony offense.

Last summer, however, a push from wine consumers and wineries across the country caused the U.S. Supreme Court to hear a Michigan case that argued that allowing in-state shipping, but denying shipping from out-of-state, violated the commerce clause of the U.S. Constitution.

At first, wine lovers rejoiced. But instead of relenting, Indiana, and several other states, fell back on a completely disingenuous rationale that in-state shipping had always been illegal. Even though the state's own Web site said tourists could visit an Indiana winery, buy wine, and have it shipped to their homes.

This set up the battle being fought across the nation - to allow all shipping or to ban all shipping. In Indiana and most jurisdictions, the wholesalers have the money to spend on lobbyists and contribute to legislators, and the wineries and consumers have no voice at all.

Oddly, there do not appear to be any Indiana news stories on the wine shipping bills; the only coverage I've been able to locate are these two ably-written columns.

The bills are SB 110 and HB 1036.

Posted by Marcia Oddi on Thursday, January 19, 2006
Posted to Indiana Government | Indiana Law

Ind. Courts - News of Elkhart and Monroe judgeships

The Elkhart Truth reports today:

ELKHART -- Judge Stephen Platt wants to keep his job as judge of Elkhart Superior Court 2 and officially began his run Wednesday.

Platt filed paperwork with the Indiana Secretary of State's Office to run in the May Republican primary.

Platt, 60, is in his 25th year on the bench and is the longest sitting judge in Elkhart County, first getting the job in 1982.

He suffered a stroke in his office one night in late August and returned to work on a part-time basis last month. After four months of rehabilitation and therapy, he expects to resume work full time within a few weeks.

The Bloomington Herald-Times reports today:
Bloomington attorney Bob Miller announced Wednesday he'll seek election this year as judge of Monroe Circuit Court's Division 5.

Judge Douglas R. Bridges, who holds that seat, has indicated he will not seek re-election.

Miller, a graduate of the Indiana University School of Law, served as Monroe County's prosecutor from 1987 to 1994 and is now in private practice.

Want more news of judgeships? Don't hesitate to send me links to stories from your local papers.

Posted by Marcia Oddi on Thursday, January 19, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit posts three today

The 7th Circuit has posted three opinions today, presumably none of them equal the two I missed commenting on until late yesterday.

The one Indiana case today is Conrad, Maria v. Barnhart, Jo Anne (SD Ind., Tim A. Baker, Magistrate Judge), a social security disability appeal. Affirmed.

Kikalos, Nick v. Comm., IRS is an appeal from the US Tax Court. Affirmed.

Zhang, Junshao v. Gonzales, Alberto is an immigration appeal that concludes:

Accordingly, we grant the petition for review, vacate the BIA’s denial of withholding of removal and asylum, grant withholding of removal, hold Zhang eligible for asylum, and remand to the Attorney General to exercise his discretion whether to grant asylum.

Posted by Marcia Oddi on Thursday, January 19, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Still more stories today on legislative health care perks

Niki Kelly writes today in the Fort Wayne Journal Gazette:

INDIANAPOLIS – A day after Republican House Speaker Brian Bosma announced plans to end a questionable health insurance perk for his members, Senate President Pro Tem Robert Garton tried to avoid hard questions from a pressing media.

Instead, Sen. David Long, R-Fort Wayne, took the lead, saying the situation is under review and decisions will be announced in the coming weeks.

He promised changes would be made to the program but said the Senate would likely not take the same route as the House. “We don’t have a final answer to any of this right now,” Long said. “We will modernize the program and make changes.” * * *

The subject has mostly bubbled under the surface for several years but gained attention when state Auditor Connie Nass recently sought money to conduct an actuarial study on the state’s unfunded liability.

It became clear then that no one really knows what the extensive perk might cost taxpayers in the future.

Garton, in a regularly scheduled weekly meeting with reporters Wednesday, did not answer several questions reporters directed to him specifically about the perk.

Long instead jumped in, saying he was answering for the Senate.

Long also chastised the media for misinformation on the program but refused to give anything but sparse details on it or the proposed changes. One of biggest things in contention is the long-term cost of the program.

The Senate has hired an actuary, but Long and Garton again declined to give information on the cost – only that it isn’t what has been reported – a $1 billion number first suggested by Nass.

Bosma on Tuesday also said he has better numbers but did not reveal them.

Mike Smith of the AP has a story today in the Louisville Courier Journal that begins:
The Senate is unlikely to follow House Speaker Brian Bosma's decision to end lifetime, state-subsidized health care benefits for House members who leave office starting next year, a top senator said yesterday.

But Senate Majority Floor Leader David Long, R-Fort Wayne, said the chamber will make some changes to the state health care plan for members who leave office.

For earlier related ILB entries, select "Legislative Benefits" from the list of categories in the right column.

Posted by Marcia Oddi on Thursday, January 19, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Decisions - Court of Appeals issues two

Robert Washington v. State of Indiana is a 28-page opinion on an appeal of a criminal conviction. Judge Robb writes the 25-page opinion affirming the convictions; Chief Judge Kirsch writes a 3-page opinion "concurring in result".

In Jerrell Seth Covington v. Marion County Office of Family & Children and Child Advocates, Judge Vaidik writes:

Jerrell Covington appeals the termination of his parental relationship with his biological son, S.M. He argues that the State failed to prove by clear and convincing evidence that (1) there is a reasonable probability that the conditions that led to S.M.’s removal would not be remedied or that (2) the continuation of the parent-child relationship poses a threat to S.M.’s well-being. In response, the Marion County Office of Indiana Department of Child Services alleges that because Covington has taken no action to establish his paternity in this case, he lacks standing to challenge the trial court’s determination. Finding no clear error in the trial court’s determination that the conditions leading to S.M.’s removal are unlikely to be remedied, we affirm the termination of Covington’s rights. We do find, however, that a putative father has standing to challenge an adverse decision in an involuntary termination proceeding regardless of whether he has taken steps to establish his paternity.
Judge Mathias writes in a brief concurring opinion:
I write only to emphasize the core holding in this case regarding Covington’s standing as the putative father. That holding is that as a respondent in these involuntary termination proceedings, Covington clearly has basic constitutional standing to challenge the actions taken by the trial court. While Covington’s conduct in failing to attempt to establish paternity throughout these proceedings speaks volumes as to the correctness of the trial court’s termination of any parental rights he may have had, it cannot divest him of standing under the statutory termination framework enacted by our General Assembly.

Posted by Marcia Oddi on Thursday, January 19, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues opinion re contruction of the Indiana Parenting Time Guidelines

The Supreme Court has posted Greg Shelton v. Alaina Shelton, a 2-page opinion dated 1/18/06.

Posted by Marcia Oddi on Thursday, January 19, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Judge Barker rules on whether communities have right to restrict new medical centers [Updated]

The Louisville Courier Journal reports today, in a story by Alex Davis:

Officials in Clark and Floyd counties overstepped their authority last year when they passed legislation blocking the construction of private hospitals, a judge ruled yesterday.

In a 38-page ruling issued in Indianapolis, U.S. District Judge Sarah Evans Barker granted a permanent injunction against the construction moratoriums in both counties.

The Clark County commissioners approved a two-year ban last February to protect their county-owned hospital, Clark Memorial in Jeffersonville. Floyd officials passed a one-year moratorium in March to protect Floyd Memorial, also county-owned.

The votes came after two groups of private investors from Kentucky announced plans to build hospitals -- one in Jeffersonville, the other in either Clarksville or New Albany. * * *

Daniel Warncke, the Cincinnati attorney for the private investors, called the court ruling a "home run" for his clients and said the county commissioners were "misinformed by the hospitals about the extent of power" that they had to enact the moratoriums.

But the issue may not be concluded.

Scott Waters, attorney for Floyd Memorial's board of directors, said he believes the counties may have grounds upon which to appeal the ruling to the 7th U.S. Circuit Court of Appeals in Chicago. There is a 30-day time limit, he said. * * *

Hallal, the New Albany physician, said he believed the court ruling could have an impact on other Indiana counties where moratoriums have either been discussed or approved. He said his investor group already has incurred extra costs because construction delays and legal bills, but he said the group is committed to the hospital project and he said yesterday's ruling was "a positive development for free enterprise."

In November Judge David F. Hamilton issued a similar ruling - see the ILB entry here.

Judge Barker's opinion has not been posted in the public area of the federal court's website. I will obtain and post a copy here shortly.

[Updated] Here is Judge Barker's opinion in Kentuckiana Medical Center v. Clark County, Indiana, dated 1/18/06.

Posted by Marcia Oddi on Thursday, January 19, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Law - A number of editorials today on the legislators' health perk; plus some observations

A number of Indiana newspapers this morning have editorials on the General Assembly's free health care benefits for life.

The Indianapolis Star writes today, in an editorial titled "Cut lawmakers' perk permanently" that even though Speaker Bosma has promised to modiy the health care perks for House members:

The public will continue to pay the current rate for 25 retired legislators and for anyone with six years and one day of service who retires before this November's election. The financial stakes could cost the legislature some members. And there are other catches.

Senate President Robert Garton, R-Columbus, who backed the legislation creating the benefit, has not embraced Bosma's move, of course; though he says he is reviewing it. Furthermore, Bosma's edict could die at the whim of his successor should the Indianapolis Republican lose the speaker's post.

What's needed is passage of House Bill 1309, offered by Rep. Troy Woodruff, R-Vincennes, which would repeal the legislation behind the windfall altogether.

The bill is buried in the dreaded Rules and Legislative Procedures Committee, and Bosma killed it last year in the name of peacekeeping. But Woodruff insists it helped him oust an incumbent in 2004. Perhaps his colleagues should follow his regimen in 2006, for the sake of their political health.

The Lafayette Journal & Courier opines:
On Tuesday, House Speaker Brian Bosma rescinded the lifetime benefit -- which allowed retired lawmakers with at least six years in office and their families to get perpetual coverage at today's prices -- saying it was, indeed, too generous. And it was, indeed, too much to ask Hoosier taxpayers to foot. * * *

A few years late, perhaps, Bosma's call was the right one.

What's hilarious -- sad, but hilarious -- were the overbaked warnings from the General Assembly floor once Bosma announced the cuts: What if the change spurs a massive wave of retirement by lawmakers who would rather get guaranteed health insurance for life than keep a seat at the Statehouse?

Bosma admitted, in a quote from The Indianapolis Star, that that "was one of the concerns as I struggled with the decision."

You know what? Good riddance, is what Hoosiers say, if that happens.

Our lawmakers make a tremendous commitment to do the part-time job, but not tremendous enough to qualify for such a lush perk.

Besides, Bosma's directive still leaves legislators with a sweet deal. After six years at the Statehouse, they could still buy into the state insurance plan at the going rate for annual premiums. It's the same benefit offered to other retired state employees. And it's fair, considering so many Hoosiers live without insurance or who each year face new reductions in company-provided health plans. Think a self-employed Hoosier wouldn't jump at that arrangement?

What about those lawmakers who decide it isn't fair -- who retire to preserve what shouldn't have been theirs in the first place? That's simple. When they announce they won't run, their constituents should tally up what really mattered to a lawmaker they sent to Indianapolis, thank them for their honesty and send them on their way.

Then voters should replace them with legislators who will think twice before pulling such blatantly self-serving moves in the future.

The Indiana House made amends. Now it's the Indiana Senate's turn.

The Munster (NW Indiana) Times has an editorial today headed "Lawmakers' health care perk is unhealthy for taxpayers." Some quotes:
The issue: Cheap health insurance for former Indiana lawmakers

Our opinion: House Speaker Brian Bosma was right to end this costly perk for House veterans. Now Senate President Pro Tem Robert Garton

The lawmakers were elected to serve Indiana, not to serve themselves at the state's expense.

Political analyst Brian Howey, whose column appears Sundays in The Times, said estimates on how much the pricey perk could cost Hoosier taxpayers range from hundreds of millions of dollars to $1 billion.

The lawmakers eager to take advantage of this benefit should remember that it was given them without a public hearing on the proposal. And it came at a time when 14 percent of Hoosiers were without health insurance of their own.

And as an increasing number of employers drop health insurance benefits for their employees, the lawmakers' participation at the taxpayers' expense is even more shameful.

Senate President Pro Tem Robert Garton has said he doesn't expect to change the senators' benefit. He should follow Bosma's example.

Earlier this decade, Garton, R-Columbus, and John Gregg, then the Democratic House speaker, quietly offered the plum to lawmakers without the public noticing it.

Barton needs not only to reverse his decision on this perk but also to provide data showing how much this is costing the taxpayers.

Some observations. The Evansville Courier&Press has a story today that includes these quotes - I have highlighted the parts with which I disagree:
In both the House and Senate, lawmakers can currently retire after six years and one day of service and lock in their state health-care plan for life. That means whatever percentage of premiums they pay now - which can range from nothing to almost a quarter of premiums depending on the plan would stay in place. The rest of the premiums are picked up by taxpayers.

On Tuesday, House Speaker Brian Bosma announced that for representatives that don't retire this year, the benefit will be changing. Under the new plan, retired legislators can still opt into the state health-care coverage but must pay 100 percent of their premiums.

Retired representatives who qualify for Medicare must take Medicare and can opt into a state supplemental health-care plan but again must pay 100 percent of their premiums.

My understanding of health care benefits for regular state employees differs somewhat (if I am incorrect, please let me know):Finally, unlike the rest of state governmental employees, certain legislative staffers apparently are covered by the House and Senate plans; but that information is not available.

For earlier related ILB entries, select "Legislative Benefits" from the list of categories in the right column.

Posted by Marcia Oddi on Thursday, January 19, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Environment - Ex-EPA Chiefs Blame Bush in Global Warming

The Washington Post is reporting today:

WASHINGTON -- Six former heads of the Environmental Protection Agency _ five Republicans and one Democrat _ accused the Bush administration Wednesday of neglecting global warming and other environmental problems.

"I don't think there's a commitment in this administration," said [Indiana's] Bill Ruckelshaus, who was EPA's first administrator when the agency opened its doors in 1970 under President Nixon and headed it again under President Reagan in the 1980s.

Russell Train, who succeeded Ruckelshaus in the Nixon and Ford administrations, said slowing the growth of "greenhouse" gases isn't enough.

"We need leadership, and I don't think we're getting it," he said at an EPA-sponsored symposium centered around the agency's 35th anniversary. "To sit back and just push it away and say we'll deal with it sometime down the road is dishonest to the people and self-destructive."

See also this Post story.

[Thanks to Indiana Daily Insight for the heads up this morning.]

Posted by Marcia Oddi on Thursday, January 19, 2006
Posted to Environment

Wednesday, January 18, 2006

Law - Some feedback on the oral argument in Wisconsin Right to Life

Wisconsin Right to Life, Inc. v. Federal Election Commission was argued before the U.S. Supreme Court yesterday. See this ILB entry from Monday, Jan. 16th for details.

Michael McGough, Pittsburgh Post-Gazette National Bureau, had this story, headlined "Some Supreme Court justices seem cool to revisiting 'issue ads'". A quote:

WASHINGTON -- Two years after upholding the McCain-Feingold campaign-reform law's limits on broadcast "issue ads" funded by unions and corporations, the Supreme Court was asked yesterday by an anti-abortion group to revisit the issue of whether the curbs violate the First Amendment.

Some justices made clear that they weren't interested.

"Most of us spent the entire summer [of 2003] reading one of the longest appellate opinions we ever saw," Justice Stephen Breyer complained to James Bopp, Jr., a lawyer representing Wisconsin Right to Life, Inc. Mr. Bopp was defending the group's right to air an advertisement about Sen. Russell Feingold, D-Wis., within 60 days of the 2004 election in which Mr. Feingold was seeking another term.

The advertisement urged Mr. Feingold and fellow Wisconsin Democratic Sen. Herb Kohl, who was not up for re-election, not to take part in filibusters of President Bush's judicial nominees.

Mr. Bopp told the court that the ads were not primarily about the election but were a form of lobbying covered by language in the First Amendment protecting the right of citizens "to petition the government for a redress of grievances."

"These ads were at the very core of what a legislative issue ad is," Mr. Bopp said, "and it was directed at both the senators, not just the one running for re-election."

"You have a very good argument," Justice Breyer told Bopp. "But it's an argument we just heard in that case."

Tony Mauro, writing here for the First Amendment Center, reports:
WASHINGTON — It was deja vu all over again at the Supreme Court yesterday, as justices reprised the First Amendment debate over provisions of the federal campaign-finance law that restrict electioneering ads just before an election.

In the 2003 litigation over the law that resulted in the ruling McConnell v. Federal Election Commission, the First Amendment lost, with a majority of the Court upholding the restrictions on their face, even though they restrict speech when it arguably matters most.

Yesterday, presented with a real-life challenge by a Wisconsin antiabortion group that had to yank its advertisements off the air because of the restrictions on electioneering ads, some justices appeared to have second thoughts while others appeared annoyed that the issue was being revisited at all.

And here, from what looks to be a great blog named Skeptic's Eye, by Allison Hayward, "an attorney who writes about campaign finance," is a you-are-there commentary on yesterday's arguments. A sample:
Anyhow, these are my notes from the morning’s argument. Jim Bopp, representing the Wisconsin Right to Life committee, began his presentation, and was able to utter a pronoun and a helping verb before Justice Souter brought him into a back-and-forth about the specifics of the Wisconsin group’s grassroots lobbying ads, and whether they were like some of the ads in the record considered in McConnell, or whether they were sufficiently different to justify the Court taking another look at the electioneering communication ban. Apparently, even though the McConnell case was a facial challenge, the ads produced as trial evidence of Congress’s purpose have now also acquired their own stare decisis status, at least for a few justices. It seemed unfortunate to me that Bopp was pulled into a contest of wits over the specifics of these ads, but that wasn’t within his control and he handled it as well as anyone could.

Posted by Marcia Oddi on Wednesday, January 18, 2006
Posted to General Law Related

Ind. Decisions - More on today's 7th Circuit decisons

Apparently I shouldn't have skipped reading the non-Indiana 7th Circuit decisions today. Howard Bashman of How Appealing reports here in a comment headed "Clothes may make the man, but a criminal defendant's appearance at trial in a prison jumpsuit doesn't always necessitate reversal," on Whitman v. Barlow, a Wisconsin case where Whitman appeared before the jury in an orange prison jumpsuit.

And here Bashman writes briefly about another 7th Circuit ruling today, Scarver v. Litscher, by Judge Posner, relating to the rights of the prisoner who, in prison, murdered "the notorious Jeffrey Dahmer—the cannibal murderer of 17 young men."

Posted by Marcia Oddi on Wednesday, January 18, 2006
Posted to Ind. (7th Cir.) Decisions

Environment - More on the Pines transfer station

The Michigan City News-Dispatch is reporting, in a story headlined "City Council supports appeal against IDEM":

Michigan City might assist Pines and Beverly Shores against the waste-transfer station.

The City Council agreed Tuesday night it would like to financially assist Pines and Beverly Shores in appealing a waste-transfer station on County Line Road. Now, that decision of whether to give any money rests with Mayor Chuck Oberlie. * * *

Lungren asked the council earlier this month to put some $7,200 not paid to council attorney Tom Alevizos toward the case, but Alevizos asked to put the move on hold while he researched the legality of the move.

On Tuesday, he said the council could pass the resolution showing support for the move, but added Oberlie is in charge of requesting appropriations. The money wouldn't come from the council's attorney fund, but from the city's general fund.

If money isn't used, it goes back into the general fund.

Alevizos said the council can't donate taxpayers money to a private organization, according to state law. To do so, the city would have to become part of the suit.

“Law states you can't donate to a private organization, so by doing this, you're asking to be a partner,” he said. “It would be contractual, then, because the city would have a stake in the suit.”

The two Porter County towns are appealing a November ruling from the Indiana Department of Environmental Management granting Great Lakes Transfer LLC a permit to build the facility on County Line Road. * * *

Representatives from Pines and Beverly Shores lobbied council members to pass the resolution.

“When you look at us, we become one community,” Pines Town Council Vice President Cathi Murray said. “Our kids go to Michigan City Area Schools, we shop in Michigan City, our kids play on the same teams. We are one community.”

[For more on the suit, enter "Pines" in the search box in the right column.]

Posted by Marcia Oddi on Wednesday, January 18, 2006
Posted to Environment

Ind. Law - Still more on Indiana legislators' free health care for life

Advance Indiana has just posted a commentary, headed "Garton Begins Deception Game On Health Care Perk," based on in part on this new Howey Political Report titled "Bosma cuts health care for life program; Garton and Long say changes coming."

No sense in rehashing them, except for this paragraph, quoted in both of the above entries:

"There were a couple of bills that were involved." Long said that one was vetoed by then Gov. Frank O'Bannon. "That was a funding source for the program itself and there was misunderstanding and confusion through the conference committee report and the governor vetoed it for whatever reason and the Senate sustained the governor's veto," Garton said.
This Jan. 6th ILB entry talks in detail about the "couple of bills" involved, quoting from Star archival stories - see the Jan. 6th entry for details and links. These quotes are what is pertinent for the point here:SEA 506 would have created a non-reverting fund, to which "unused approriations" from various sources, including printing savings, were to be transferred, to be used to pay for retired lawmakers' and retired legislative aides' health benefits. In other words, a fund whose money could be tapped as the leadership decided, without further appropriation. Such funds are sometimes referred to as "slush funds."

I have been able to obtain Gov. O'Bannon's 2002 veto message to SEA 506. He was more circumspect in his characterization of the fund the legislature was attempting to create, but it is clear that is the reason he vetoed the bill:

Mr. President and Members of the Senate: Senate Enrolled Act 506 provides for certain legislative and administrative documents to be distributed in electronic rather than in paper format. The Act also creates a non-reverting fund to receive any unused appropriations for the printing and distribution of these documents.

SEA 506 would decrease the printing costs to the Legislative Services Agency (LSA) by approximately $328,000. If the non-reverting fund were not created, this act would have a positive fiscal impact. However, the savings, which would otherwise revert to the general fund, are transferred into the new non-reverting fund.

In addition, other unused appropriations under the jurisdiction of the Legislative Council could also be transferred into the fund and, therefore, reduce general fund reversions. The total lost reversions to the general fund could still amount to $750,000 a year.

Because this issue can be better addressed in a budget session as part of the appropriations process, and because of the potential impact to the state general fund from the loss of future reversions from the program, I am vetoing this act.

I will work with the LSA and executive branch agencies to accomplish administratively the major purpose of the Act - to reduce paper and provide information more quickly and efficiently. We can begin immediately to realize the benefits of electronic distribution of documents: less paper to clutter the environment and the improved availability of timely and accessible information.

I hereby veto Senate Enrolled Act 506 and return it to the Senate for further action.

FRANK O'BANNON
Governor

So where is the money coming from each year to fund the program? Under the Indiana Constitution, no money can be drawn from the treasury except via an appropriation made by law. I have reviewed the legislation from the past few years and an appropriation for health benefits for retired legislators, their families and staff does not jump out at me.

Posted by Marcia Oddi on Wednesday, January 18, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Decisions - 7th Circuit decides five today, one is an Indiana case

The 7th Circuit decided five cases today. Three are prisoner appeals, one is a criminal appeal, and the fifth, a civil case, is from the Northern District of Indiana.

In Tri-Gen Inc. v. Local Union 150 (ND Ind., Judge Sharp), a 34-page opinion affirming the district court, Judge Bauer writes:

Tri-Gen Incorporated (“General Drilling”) sued International Union of Operating Engineers, Local 150, AFL-CIO (“Local 150”) in district court for federal labor and antitrust violations. Local 150 moved for dismissal and summary judgment on all counts. The district court ruled in favor of Local 150 and entered judgment as a matter of law. We affirm.

Posted by Marcia Oddi on Wednesday, January 18, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Committee endorses bill to protect e-mail addresses

"Committee endorses bill to protect e-mail addresses" is the headline to a brief story in the Indianapolis Star today. The story reports:

Lists of e-mail addresses kept by public agencies would be entitled to even more privacy than lists of mailing addresses under a bill endorsed by a Senate committee Tuesday.

Current law seeks to protect lists of names and addresses kept by public agencies, while also ensuring public accountability, by allowing the public to inspect lists but not obtain photocopies or electronic records. The state's public access counselor has ruled that this exception doesn't apply to e-mail addresses.

Under Senate Bill 205, approved 9-0 by the Senate Economic Development and Technology Committee, the public couldn't even look at a list of e-mail addresses. The bill moves to the full Senate.

There may be much more to this story than meets the eye. The bill's author is Senator Jeff Drozda, Kokomo. The Mayor of Kokomo has been engaged in a dispute with a "youthful political operative" who sought a copy of the email list the Mayor and the City use to send out newsletters. The high school sophomore finally filed a complaint with the PAC, which produced this PAC opinion, dated Sept. 9, 2005.

Read the entire saga in this ILB entry from Oct. 18th, 2005.

One more thing. According to this page of the State's Office of Technology, we already have a law protecting public email addresses from being used for commercial purposes.

Posted by Marcia Oddi on Wednesday, January 18, 2006
Posted to Indiana Law

Ind. Gov't. Bill to spare high-fence hunting sure to draw fire [Updated]

Will Higgins of the Indianapolis Star writes today:

The controversial practice of hunting deer in high-fence preserves, set to be banned this March in Indiana, would survive under a proposal [HB 1349] that gets its first hearing today.

The bill in the Indiana General Assembly is certain to be contentious. By one measure, hunting animals on private, fenced-in preserves -- "high-fence hunting" if you're in favor, "canned hunting" if you're against -- is a small matter. There are only 10 such preserves in Indiana.

But Rep. Bill Friend, R-Macy, who in the past has sponsored pro-hunting preserve bills, said no other issue evokes such emotion.

To proponents, high-fence hunting is economic development, free enterprise. To opponents, the practice is sick and unacceptable and could cause the spread of disease.

In Indiana and in other states, preserve hunting has thrived because hunters are willing to pay thousands of dollars to take a nearly guaranteed shot at a "trophy" deer. That shot is almost certain because the animal is enclosed by a 9-foot-tall fence.

In recent years, 11 states have banned the preserves.

The Department of Natural Resources banned the practice last year, but the delay until March was intended to let members of the General Assembly weigh in. * * *

In Indiana, lawmakers have debated the issue since the late 1990s. There have been bills in favor of preserves and bills opposed. None has passed. But the issue was not pressing. Indiana's existing statutes are murky, and the DNR allowed preserves. The DNR did its about-face after Kyle Hupfer, an avid hunter, took over as director last year.

See yestersday's ILB entry here.

For background on the rulemaking, see this ILB entry from Aug. 13, 2005.

The Star has an editorial today against the revival of canned hunts.

[Updated] Will Higgins of the Star reports here this afternoon that:

A bill to legalize high-fence hunting in Indiana passed easily out of committee today and now goes before the full House.

The bill cleared the Natural Resources Committee by an 11-1 margin.
The Department of Natural Resources last August ruled that such hunting preserves were illegal and ordered them to shut down by March. There are about a dozen such preserves in Indiana.

About four-dozen people jammed into a hearing room this morning as proponents and opponents discussed the bill. Many sportsmen's groups oppose high-fence hunting. They say it's not sporting and gives hunters a bad name.

Posted by Marcia Oddi on Wednesday, January 18, 2006
Posted to Environment | Indiana Government | Indiana Law

Ind. Decisions - Court of Appeals decides 6 today

Robert S. Stewart v. State of Indiana - Sentencing appeal; affirmed.

In M.Q.M. v. State of Indiana, Judge Crone writes:

M.Q.M. appeals from the juvenile court’s dispositional order adjudicating him to be a delinquent child for committing possession of a substance represented to be a controlled substance, a class C misdemeanor if committed by an adult, and auto theft, a class D felony if committed by an adult. We affirm in part, vacate in part, and remand.

In Lucas Outdoor Advertising v. City of Crawfordsville, Judge Baker writes:

The question presented here is whether the Crawfordsville sign ordinance prohibits the placement of advertisement billboards. In a sense, it does. Appellant-petitioner Lucas Outdoor Advertising, LLC (Lucas), appeals the trial court’s judgment upholding a decision in favor of the City of Crawfordsville (City) Board of Zoning Appeals (BZA) regarding the denial of its applications for the placement of a number of billboard signs. Specifically, Lucas claims that the decision denying the applications was arbitrary, capricious, and contrary to law, and that the judgment must be set aside because the BZA had previously granted permits to other applicants under the City’s sign ordinance. Concluding that the decision to deny Lucas’s permit applications for the billboards was proper, we affirm the judgment of the trial court.
In Tiffany Edmonds v. State of Indiana, Judge Kirsch writes:
Based on the conclusion that the trial court abused its discretion when it found Edmonds’s criminal history to be an aggravating circumstance, we choose to exercise our right under Indiana Appellate Rule 7(B) to revise Edmonds’s sentence. We find that the imposition of consecutive sentences was inappropriate, and we revise Edmonds’s sentence and order her sentences of ten years for robbery and ten years for criminal confinement to be served concurrently.
In Marion-Adams School Corporation v. Paula Boone, Judge Crone writes:
The dispositive issue is whether the trial court abused its discretion in awarding Boone attorney’s fees pursuant to Indiana Code Section 5-14-1.5-7(f). * * *

The Corporation contends that “[t]here was no evidence of any future violations, nor any evidence of any threatened violations” of the Open Door Law. We are unable to review the merits of the Corporation’s contention, however, because it chose not to submit a transcript of the evidence with its appeal. It is a cardinal rule of appellate review that the appellant bears the burden of showing reversible error by the record, as all presumptions are in favor of the trial court’s judgment. *** The record before us indicates that the trial court heard evidence that reflected poorly on the Board’s knowledge of and past compliance with the Open Door Law and raised sufficient doubts regarding future compliance to merit an injunction, an admonishment, and remedial tutoring by the public access counselor. Absent a transcript, the Corporation cannot establish that the trial court’s fears are unfounded. We therefore conclude that Boone showed that the filing of her action was necessary to prevent a future violation of the Open Door Law and that the trial court did not abuse its discretion in awarding her attorney’s fees pursuant to Indiana Code Section 5-14-1.5-7(f).

In Tabatha J. Naugle, et al v. Beech Grove City Schools, a 10-page opinion, Judge Baker writes:
Appellants-plaintiffs Tabatha J. Naugle and Sandra M. Cain (collectively, “Employees”) appeal the trial court’s grant of summary judgment in favor of appellee-defendant Beech Grove City Schools (Beech Grove). Specifically, Employees argue that the trial court erred in finding for a number of reasons that Indiana Code section 22-2-5-1, the Wage Payment Statute, did not apply in this case. Finding no support for the argument that “days” as used in the Wage Payment Statute means “business days,” but concluding that the Wage Payment Statute does not apply to Beech Grove under the reasoning in Brownsburg Cmty. Sch. Corp. v. Natare Corp., 824 N.E.2d 336 (Ind. 2005), we affirm the judgment of the trial court.

Posted by Marcia Oddi on Wednesday, January 18, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - 130-year-old Posey County Courthouse gets new life

The Evansville Courier& Press has a story today by John Lucas titled "Courthouse gets new life: Long-debated renovation begins on 130-year-old Posey building." Some quotes from this long and interesting report:

MOUNT VERNON, Ind. - Terry Newton marvels at some of the features of the 130-year-old Posey County Courthouse.

On Tuesday, Newton, who serves as construction superintendent for Evansville's Peyronnin Construction Co., which is renovating the courthouse, had been tearing out curved shelving in an apse, or alcove, behind the judge's bench.

He pointed out the shelves had been made of many thin strips of wood glue and shaped to fit the curved wall. Such attention to detail can be found on all four floors and the cupola of the courthouse, which dominates downtown Mount Vernon. * * *

Earlier this month, Peyronnin began a renovation that, come fall, will make the courthouse built in 1876 new again.

That is when the long-debated renovation of the old building is expected to be completed. Courthouse offices - the circuit court, clerk and election board - were moved in late December across Main Street to the former Bernie Moll furniture store. * * *

In the courtroom, a new judge's bench will be constructed and an oak back wall, installed in 1892, will be used as a display on the first floor.

That, said Circuit Judge James Redwine, will allow the courtroom apse - a semicircular alcove behind the judge - to serve as a natural amplifier for voices as builders intended. * * *

"It's been a while coming. Everybody knows that," said Redwine, who in 2004 issued a judicial mandate to push county officials to complete renovations to the building. * * *

Commissioners didn't want to raise taxes to pay for the work, leading Redwine to issue his mandate that led to appointment of a special judge and mediation last year.

"We gave a little; he gave a little," Posey County Commissioner Scott Moye said of the mediation.

The work now under way is expected to take seven or eight months to complete and will cost the county about $1.7 million, including temporarily relocating courthouse personnel, Moye said. Actual construction on the the four-floor courthouse is expected to cost $1.4 million and will be paid for by 10-year bonds sold by the county, he said. [my emphasis]

This mention of judicial mandate brings to mind this Oct. 28, 2005 ILB entry about the endangered Randolph County courthouse, which has been slated for demolition by the county commissioners, asking whether that option was being considered by the Randolph judges.

Posted by Marcia Oddi on Wednesday, January 18, 2006
Posted to Indiana Courts

Ind. Courts - Judge Villalpando accused of campaign law violation

Alternative title: "No-holds-barred fight for Lake County Superior Court's elected Hammond judgeship," as this earlier ILB entry on this race was titled.

Today the Gary Post-Tribune reports:

CROWN POINT — Eduardo Fontanez upped the ante in his bid to replace Jesse Villalpando as Lake Superior Court judge Tuesday by alleging the incumbent has broken campaign law.

Fontanez filed a complaint with the Lake County Election Board, arguing Villalpando did not announce the creation of his campaign organization, “Judge Villalpando Committee,” in a timely fashion with the county Elections and Registration Office.

Since Villalpando has been holding fund-raisers and collecting money for his campaign without the organization being properly certified, Fontanez called on the Lake County Prosecutor’s Office to charge him with a misdemeanor.

Villalpando countered that he filed his organization with the state Commission on Judicial Qualifications in May 2005. * * *

The race for Lake Superior Court Division 4 has already proven one of the most contentious in Lake County this year. Villalpando contends Fontanez is little more than a shill put forward by political powerbroker Robert Cantrell, who has publicly targeted Villalpando for defeat.

Fontanez insisted Tuesday he is a serious candidate.

“Since (Villalpando) wants to make these baseless claims, I am going to pursue this claim, which has basis in the law,” Fontanez said.

Villalpando did file a statement of organization for his campaign organization with the county Elections and Registration Office shortly before 4 p.m. Tuesday, but Fontanez said the judge acted too late.

“He has been holding fund-raisers, collecting money through a nonexistent campaign organization,” Fontanez said. “He should have known better.”

The Munster (NW Indiana) Times has this story today, headlined "Lake Superior judge candidates trade accusations: Challenger says incumbent failed to follow campaign contribution laws."

Posted by Marcia Oddi on Wednesday, January 18, 2006
Posted to Indiana Courts

Ind. Courts - Delaware Circuit Court 2 Judge Richard A. Dailey is seeking a sixth re-election

The Muncie Star-Press reports today:

MUNCIE -- Delaware Circuit Court 2 Judge Richard A. Dailey is seeking a sixth re-election and will campaign on his 29 years of judicial experience, he announced Tuesday afternoon at Democratic Party Headquarters.

Dailey told supporters that he brings consistency and reliability to the justice system.

Republicans have not officially announced an opponent for the Circuit Court 2 seat. Delaware County GOP Party Chairman Kaye Whitehead said only that "there has been some discussion."

Dailey is the only of the county's five circuit court judges whose position is up for election in 2006.

Posted by Marcia Oddi on Wednesday, January 18, 2006
Posted to Indiana Courts

Ind. Law - State-subsidized House insurance changes coming

"State-subsidized House insurance changes coming" is the headline to a lengthy story by Lesley Stedman Weidenbener in today's Louisville Courier Journal. It begins:

INDIANAPOLIS — House Speaker Brian Bosma said yesterday that, starting next year, he is ending state-subsidized, lifetime health insurance for any House members who leave the body.

The change won't affect the 25 former lawmakers and spouses already taking advantage of the benefit. They get health insurance at the same price — or in some cases an even lower one — than current state employees pay, even if they are eligible for Medicare.

And it will allow members of the House with more than six years of service to retire after their current term and still take advantage of the benefit.

But those elected in November and thereafter — even if they're now serving — will have to pay the full cost with no state subsidy to remain part of the state health-insurance plan when they retire, and then only until they are eligible for Medicare.

Some other quotes from the story:
Rep. Dave Crooks, D-Washington, said there might be a "mass exodus" of lawmakers who decide the retirement deal is too good to pass up. "If you do the math, it adds up," Crooks said. "It's probably more valuable than any income that legislator may have made in their years of service." * * *

"While I disagree with the current benefit, it was in place when each of us ran for our office in 2004, and is part of the contract between the voter and their elected officials, whether the voter realized it or not," Bosma wrote in a letter distributed to members yesterday. [my emphasis] * * *

Rep. Troy Woodruff, R-Vincennes, introduced legislation this year to do away with the health-insurance program, even for the former retirees now using it. Woodruff used the insurance issue in his campaign in 2004 when he defeated Democratic incumbent John Frenz.

Yesterday Bosma said that the legislation probably is not necessary now. However, a future speaker could decide to change Bosma's policy.

The Evansville Courier& Press' Jennifer Whitson, who had this story last week with a lot of new information, has this new story today. A quote:
"At a time when corporate America is considering restructuring health-care benefits for retirees, it seems very appropriate for the Legislature to do the same," Bosma said.

Currently, the Speaker can set benefits for House members and Senate President Pro Tem Robert Garton, R-Columbus, can set them for Senate members. The benefit also applies to lawmakers' spouses and a few legislative staffers. * * *

Only three House members representing districts in Southwestern Indiana are eligible for the benefit.

Rep. Dennis Avery, D-Evansville, who works for the University of Southern Indiana, said he was OK with the benefit change. "That's not why I serve in the Legislature," Avery said.

Rep. Russ Stilwell, D-Boonville, a mining union official, agreed, saying the change wouldn't affect his decision to seek re-election.

But Rep. Dave Crooks, D-Washington, said the change is significant for him. Crooks owns and runs a radio station.

"If I get my calculator out, it probably should affect my decision (on whether to run again in 2006)," Crooks said. "But I'm probably going to run. If you take a small, independent businessman like myself, it's a considerable benefit." [my emphasis]

For earlier related ILB entries, select "Legislative Benefits" from the list of categories in the right column.

Posted by Marcia Oddi on Wednesday, January 18, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Law - Speaker says he does not have authority to change the plan for those already retired.

"Bosma said he doesn’t have the authority to change the plan for those already retired." That is a quote from a story by Niki Kelly today in the Fort Wayne Journal Gazette.

Perhaps not without changing the law. But he is not proposing to change the law, but apparently only the benefits plan he, as Speaker, administers for the House. As the story points out: "Future speakers could always change the benefit back." And would we even know?

In addition, according to the Journal Gazette story, Bosma will not close the door to full benefits for House members this term. The change will apply only to the 100 legislators elected or reelected on Nov. 7th, 2006.

That gives those who are eligible, meaning those current House members who have been elected for four or more terms, the opportunity to retire and take the lifetime benefit, worth over time maybe $240,000 for each retireee. Ironically, under Bosma's limited changes, they also will receive the benefit if they run and are defeated this year. From the Journal Gazette story:

The news fueled speculation throughout the Statehouse that dozens of House members would retire after this session to keep their benefit in place. That’s because Bosma’s decision doesn’t kick in until Nov. 8, the day after the next general election.
The story doesn't specify how many members are in at least their fourth term and thus would benefit from retiring this year. But later in the story is the statement: "[Rep. Jeff Espich, R-Uniondale] is one of seven [Fort Wayne] area House members who could remain eligible for the premium health care package if they don’t run again."

More from the story:

The subject has mostly bubbled under the surface for several years but gained attention when State Auditor Connie Nass recently sought money to conduct an actuarial study on the state’s unfunded liability, according to national accounting standards.

It became clear then that no one really knows what the extensive perk might cost taxpayers in the future. Garton told the Evansville Courier & Press this month that he has a study estimating the fiscal effect but declined to share results.

Both caucuses were behind closed doors late Tuesday afternoon discussing the issue, including rampant speculation that a number of members would retire. * * *

Rep. Ben GiaQuinta, D-Fort Wayne, said it bothers him that the benefit is being cut so drastically and he will have to think about the ramifications on his future.

But others definitively said they would stay, including Rep. Mike Ripley, R-Monroe. “If I were to jump ship, it would be a gold mine,” he said. “But I think the whole thing should never have happened in the first place.”

More:
Currently, 19 retired House members are using this plan. * * * Senate President Pro Tem Robert Garton, R-Columbus, elected the same benefit for his chamber in 2002, but he has not announced any changes. Only six former senators currently enjoy the benefit.
One more quote from this well-reported story:
Under Bosma’s change, those retiring after Nov. 7 can continue to participate in the state’s group health program but all premiums will be the retiree’s sole responsibility.

And if the House member is Medicare-age, the federal program must be the primary provider. This is the same as other state employees, who assume 100 percent of the costs upon retirement.

But according to the sketchy LSA fiscal note on Representative Troy Woodruff's HB 1309 (coauthored by Representative(s) Burton, Davis, Bright), it would take both administrative and legislative action to eliminate the health care perks. This section of the fiscal report makes me wonder whether Bosma can unilaterally eliminate the free Medicare complementary plan:
The bill also eliminates the statutory requirement that the Department of Personnel offer Medicare complementary insurance policies to retired state employees who become eligible for Medicare coverage. The statutory requirement is that at least two policies be offered: one providing medical coverage only, and the other providing medical coverage along with coverage for prescription drug benefits. As of November 2005, 14 individuals were enrolled in the Medicare complementary plans; 11 with medical coverage only and 3 with medical coverage plus prescription drug coverage. Although the statutory requirement to provide these policies is eliminated, elimination of the program will depend on administrative actions.
The Gary Post-Tribune has a story today by Steve Walsh prematurely headlined "Lawmakers lose free insurance." Some quotes:
A separate bill to repeal the plan by Rep. Troy Woodruff, R-Vincennes, calculated the plan is already expected to cost the state $306,000 a year by 2008, to pay the employee portion of the premiums of retired lawmakers, their families, surviving spouses and even divorced spouses. Woodruff had made the insurance give-away an embarrassing centerpiece of his campaign for the House in 2003.

As word spread of the impending decision, House lawmakers waited Tuesday for the policy to be released.

“I’m going to follow what the speaker does,” said Rep. Robert Kuzman, D-Crown Point.

Kuzman, an attorney, uses the state health insurance for his family. Current lawmakers have long been able to opt into one of a number of health insurance plans offered to state employees by paying the premium.

Since 2002, the speaker and the president pro tem of the Senate have had the right to grant retired lawmakers special status, which required the state to pick up their monthly premiums. The law forces the state to pay the employee portion of the state health insurance plan chosen by the lawmaker. It costs the state between $3,826 and $5,174 a year to pay the premium of an individual lawmaker, or between $10,711 and $14,511 a year if the lawmaker chooses a family plan, according to the nonpartisan Legislative Services Agency. * * *

House staff released information that the state is already paying the premiums for 19 retired House lawmakers. The speaker’s decision affects only the House. The policy was released early Tuesday evening, and there was no indication whether the Senate would follow and also end free insurance for its retirees. Senate President Pro Temp Robert Garton was not available for comment. * * *

Bosma said he hoped his policy would “establish a legacy” that would prevent future speakers from bringing back free health insurance.

Indianapolis Eyewitness News 13 has this AP story.

For earlier related ILB entries
, select "Legislative Benefits" from the list of categories in the right column.

Posted by Marcia Oddi on Wednesday, January 18, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Tuesday, January 17, 2006

Ind. Law - Speaker may make major changes to lawmaker health benefits

"Speaker to make major changes to lawmaker health benefits" is the headline to an AP story by Mike Smith available at the Fort Wayne News-Sentinel website. Some quotes:

Republican House Speaker Brian Bosma said Tuesday he would soon make significant changes to the health care benefits for legislators, who now receive lifetime coverage if they have served a day more than six years. * * *

In 2002, Senate President Pro Tem Robert Garton, R-Columbus, and then-Democratic Speaker John Gregg added a benefit for lawmakers who had served at least six years and a day that allowed them to lock in their taxpayer-funded health care plan for life. The move also allowed lawmakers and their spouses to lock in monthly premiums at the current level when the lawmaker retired, meaning premiums would not rise even if health insurance costs did.

Members of the General Assembly over recent years have passed legislation making them employees of the speaker and pro tem. Bosma said he had clear authority to change the benefits for House members and had been considering a number of revisions. They would affect House members who serve on Nov. 8 and later, he said.

Under the Indiana Constitution, "Senators shall be elected for the term of four years, and Representatives for the term of two years, from the day next after their general election." Election day this year is Nov. 7, 2006.

That means, as I read it, that any current House members (only the House is suggesting that it will make any change to the plan) who are in their 4th term (i.e. "they have served a day more than six years") who retire or are defeated this year will retain the current expansive coverage, as will those already receiving the benefits.

More from the story:

The prospect of change sparked contention in the House, where both parties interrupted business Tuesday to discuss the issue privately.

Republicans control the House 52-48. Some Republicans have made the benefit an issue in past campaigns against Democrats.

Republican Billy Bright of North Vernon, who defeated long-term Democratic incumbent Markt Lytle of Madison in 2004, has called for the benefit to be rescinded, as has freshman Rep. Troy Woodruff, R-Vincennes. Woodruff, who defeated Democrat John Frenz in the last election, has filed a bill this session to eliminate the lifetime benefit.

For earlier related ILB entries, select "Legislative Benefits" from the list of categories in the right column.

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to Indiana Law | Legislative Benefits

Ind. Decisions - Notice of appeal filed in suit to stop state takeover of Ft. Wayne State Developmental Center

See this Dec. 28, 2005 ILB entry, including a copy of the trial court opinion and the original complaint, and this Dec. 23, 2005 entry titled "Judge allows takeover of state center to proceed."

Today the ILB has received a copy of the Notice of Appeal:

Plaintiffs, Anita Stuller and American Federation of State, County and Municipal Employees, Council 62 (AFSCME), by counsel, pursuant to Ind. Appellate Rule 9(A), respectfully give notice of their appeal from a judgment entered by the Allen Superior Court No. 1 titled “Order or Judgment of the Court,” entered on December 22, 2005.

This appeal is from an interlocutory order.

This appeal is taken to the Indiana Court of Appeals pursuant to Ind. Appellate Rules 5(B), and 14(A)(5).

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Government | Indiana Law

Ind. Law - Star reports House members health perk may be cut [Updated]

A story by the Indianapolis Star's Mary Beth Schneider, posted to the Star website at 3:28 PM, reports that:

House Speaker Brian Bosma, R-Indianapolis, is planning major changes to a costly taxpayer-subsidized lifetime health care plan for former lawmakers and their families.

"Significant changes are imminent," Bosma said today.

Bosma would not give details on the changes that he can unilaterally make to the health insurance system for former state representatives.

But he told reporters he has "come to preliminary decisions" to scale back the plan. The changes would affect any state representative who is in office on Nov. 8 [2006] or later.

All 100 state representatives are up for re-election this year. The changes could impact how many decide to retire, and keep the current health care plan adopted in a series of bills in 2001 and 2002. Any changes impacting the Senate would be up to Senate President Pro Tempore Robert D. Garton, R-Columbus.

The report also states:
Under the current benefit plan, lawmakers who leave the General Assembly after serving at least part of four, two-year terms are eligible, along with their spouses, surviving spouses, divorced spouses and their dependents.

Since mid-2002, when legislative leaders began offering the benefit, the cost to taxpayers has risen rapidly and, as of 2005, exceeded $250,000 a year. In 2004, former lawmakers receiving the benefit paid between $710 and $1,900 a year for family dental, health and vision coverage. That represented a savings of $3,343 to $12,800 over the amount retired state employees pay for the same levels of coverage.

No source is given for these figures in the Star story. In a previous story I recall reading that 25 legislators are covered at present.

If each of these legislators (with their families) are receiving, say $10,000 over the amount retired state employees pay for the same levels of coverage (and for these retired state employees the coverage does not continue once they are Medicare eligible), that is 25 x $10,000/year = $250,000.

Now, how long are they going to live? The benefits continue to cover the retired legislators and their families through their lifetimes. And of course, as they grow older, their benefits will go up sharply.

Assume that these current 25 family groups have an average future lifespan of 20 years. That is 20 x $250,000 = $5,000,000. For just the 25 legislative family groups currently retired. (Staff is also said to be covered.)

So the unfunded cost of the already retired legislators and their families covered by the plan could be $5,000,000. Or much more, given how health care costs are rising.

Add to that the members that retire this year - say 15, with 25 years average future lifespan. That is another $3,750,000.

So the total unfunded liability of the plan going into the next session will be nearly $9 million, and as I understand it, there is no talk right now of changing the plan for these 25 plus 15. So that is a gift (a "golden parachute") from the taxpayers of $225,000 to each of these retired legislators.

Note: These are my back of the envelope calculations based on the little information that has been released, plus some quesses. Apparently, the legislature has had an actuarial study of future liabilities done, but has refused to release it.

[Thanks to Advance Indiana, which caught the Star story before I did.]

[Updated] To facilitate accessing earlier ILB entires on legislative perks, the ILB had created a new category -- Legislative Benefits. To create a linked list of ALL the ILB entries on this topic, constantly updated, simply go to the "Categories" list in the right column and click "Legislative Benefits" -- it is near the end of the categories list. Currently there are a dozen entries.

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to Indiana Law | Legislative Benefits

Ind. Courts - Huntington Circuit Court Mark McIntosh won't seek another term as judge

The Huntington Herald-Press reports today, in a lengthy story by Mike Perkins:

In 18 years as judge of Huntington Circuit Court, McIntosh has gotten his office just so, reflecting his passions and his priorities. On Dec. 31 of this year, though, he'll leave the office behind when he retires from the bench.

“It's time,” declared McIntosh, 72, who will complete this third full term as judge this year. “I would like to do a lot of things there has never been time for, and get off the strict schedule you maintain as a judge.”

McIntosh had been in private practice for more than 23 years when, in July 1987, he was chosen by then-Gov. Robert Orr to succeed the late Dane Mann as circuit judge. He won election that fall, defeating Democrat Scott Harter, and won his second and third six-year terms without opposition. * * *

McIntosh won't miss the middle-of-the-night phone calls to sign warrants and commitment orders, but he said the stresses of being on the bench have not taken an inordinate toll.

“I do my best and I go home,” he declared. “You can ask my wife: I do not bring the office home with me. Never have.”

He wants to stay in touch with the law after he steps down from his full-time duties. He hopes to join the ranks of senior judges who are assigned by the Indiana Supreme Court to spell vacationing judges for a few days to a couple of weeks at a time.

“I want to keep my hand in it, to take the continuing education and make myself available,” he said.

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues five opinions today

No Indiana-based appeals today.

Murray v. GMAC Mortgage deals with the Fair Credit Reporting Act and GMACM's effort to avoid class certification.

Downey S&L Assoc v. Comdisco Inc is a bankruptcy case.

USA v. Hawk begins with this intro from Judge Wood:

Between the appearance of Blakely v. Washington, 542 U.S. 296 (2004), in which the Supreme Court found that Washington state’s sentencing scheme violated the Sixth Amendment, and that of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), in which the Court extended Blakely’s holding to the federal Sentencing Guidelines, the federal sentencing world was in limbo. No one knew whether the Court would distinguish the Guidelines from the state law it had considered in Blakely, scrap the Guidelines altogether, or come up with some intermediate ruling. This case concerns a sentence imposed during this period of uncertainty. Although the district court was remarkably prescient and predicted the outcome of Booker by treating the Guidelines as merely advisory, it moved a little too quickly through Quill R. Hawk’s sentencing hearing. The court accepted the recommendation in Hawk’s Pre-Sentence Report (PSR) of a 121-month term, but it failed to make the findings of fact necessary to support that sentence. This omission prevents us from assessing the reasonableness of the sentence; we therefore vacate Hawk’s sentence and remand for resentencing.
In Johal, Robin v. Little Lady Foods, Judge Evans concluded:
Thus, we conclude that Johal has fallen short of showing complains was due to her “race, color, or national origin.” Accordingly, the judgment of the district court is AFFIRMED.
USA v. Dawson, Pierre - Here, Judge Posner writes re a peition for rehearing, "the government is concerned about the possible stare decisis effect of the passage and wants us to delete or modify it. He concludes:
This is not to suggest that every question a lawyer might want to ask about a third party’s opinion of the credibility of a witness would be proper cross-examination. It is to suggest only that such questions are outside the scope of Rule 608(b). * * *

The important point is that the decision whether to allow a witness to be cross-examined about a judicial determination finding him not to be credible is confided to the discretion of the trial judge; it is not barred by Rule 608(b), which, to repeat, is a rule about presenting extrinsic evidence, not about asking questions.

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court holds that a defendant can be guilty as an accomplice even if the principal does not act “knowingly or intentionally”

In Kenyan Taylor v. State, a 23-page opinion, Justice Sullivan writes:

Kenyan Taylor was convicted of murder as Mose Bowling’s accomplice. Taylor’s lawyer did not ask that the jury be told that in order for Taylor to be guilty as an accomplice, the jury had to find that Bowling had killed “knowingly or intentionally.” Because of this, the Court of Appeals reversed Taylor’s conviction. Following authority from several other jurisdictions, we hold that a defendant can be guilty as an accomplice even if the principal does not act “knowingly or intentionally.”

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to Ind. Sup.Ct. Decisions

Law - U.S. Supreme Court upholds Oregon assisted suicide law

Gina Holland of the AP reports:

WASHINGTON (AP) -- The Supreme Court, with Chief Justice John Roberts dissenting, upheld Oregon's one-of-a-kind physician-assisted suicide law Tuesday, rejecting a Bush administration attempt to punish doctors who help terminally ill patients die.

Justices, on a 6-3 vote, said the 1997 Oregon law used to end the lives of more than 200 seriously ill people trumped federal authority to regulate doctors. * * *

Roberts and Justices Clarence Thomas and Antonin Scalia dissented.

For more, see How Appealing and SCOTUSblog.

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to General Law Related

Ind. Decisions - Court of Appeals posts three decisions

Tom Williams v. State of Indiana is a 2-1 decision reversing and remanding the trial court's sentencing "with instructions to reduce his sentence to the presumptive term."

In David E. Corbin v. State of Indiana, Judge Mathias concludes:

The evidence is sufficient to support Corbin’s attempted murder and attempted battery convictions; the trial court correctly determined that Corbin should be physically restrained at trial; and the trial court properly sentenced Corbin. We therefore affirm the trial court in all respects.
In State of Indiana v. Wesley J. Brown, a 22-page opinion, Judge Najam writes:
The State appeals from the trial court’s grant of Wesley Brown’s motion to suppress evidence. The State presents a single issue for our review, namely, whether the trial court erred when it suppressed evidence seized as a result of a warrant unsupported by sworn testimony. We affirm. * * *

On February 7, 2005, Brown filed a motion to suppress the evidence seized from his home, alleging that the search warrant was invalid because Officer Miller was not sworn when she gave probable cause testimony. At the suppression hearing, the prosecutor conceded that Officer Miller had not been under oath when she testified. The trial court granted Brown’s motion to suppress. The State now appeals. * * *

[T]he tradition of the oath or affirmation requirement and precedent interpreting that requirement reinforce our holding that the Indiana good faith exception cannot cure a warrant that is not supported by an oath or affirmation. Both the Indiana Supreme Court and the Wisconsin Supreme Court have held that a warrant unsupported by an oath or affirmation is invalid. See Thompson v. State, 190 Ind. 363, 130 N.E. 412 (1921); see also, State v. Tye, 636 N.W.2d 473 (Wis. 2001). It is well settled that the purpose of the Fourth Amendment’s oath or affirmation requirement is to “ensure that the truth will be told by insuring that the witness or affiant will be impressed with the solemnity and importance of his words.” Brooks, 285 F.3d at 1105-06 (quoting Turner, 558 F.2d at 50). And we must consider the consequences, that to hold otherwise and to disregard the clear command that an oath or affirmation is required would eviscerate the warrant process.6 Thus, we do not hesitate to conclude that the trial court did not err when it suppressed evidence seized as a result of a warrant unsupported by sworn testimony. Affirmed.

As reported in this Nov. 2, 2005 ILB entry, the Court panel heard the oral arguments in this case at Orleans High School, Orleans, Indiana. Here is a quote from the Bedford Times-Mail report at the time of the students' reaction to the arguments:
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.” * * *

“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.”

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: IU President gives advance notice of resignation

Two positive editorials today on the IU restructuring. Some quotes from the Fort Wayne Journal Gazette:

Two major announcements from Indiana University this past weekend promise to position the school for significant changes – changes that should enhance the university’s position as a major research and teaching institution.

On Friday, President Adam Herbert announced he will not seek renewal of his contract beyond its July 2008 expiration date. On Saturday, the board of trustees approved a restructuring plan that makes the university provost, rather than the chancellor, the chief academic officer for the Bloomington campus. * * *

The restructuring follows a model used by Purdue University and other Big Ten institutions.

If the success of Purdue under President Martin Jischke is any indication, the new governance structure should free IU administrators from a power struggle that is distracting from its primary mission to students and to the state of Indiana.

Herbert’s status could be either a distraction – as a lame-duck president – or a benefit if he aggressively promotes changes that will advance the university. The university’s trustees should work to ensure the latter is the case.

Some quotes from an Indianapolis Star editorial today headed "IU charts course for improvement":
Indiana University has been adrift in recent years, an institution that, while not in serious trouble, was falling well below its full potential. Call it a B-minus student who should have been pulling down dean's list honors.

The weekend announcement that President Adam Herbert will step aside within two years coupled with a major realignment of key administrative roles could go a long way toward improving that performance. Call it a plan for turning that average student into a top-tier achiever.

Herbert has put together a respectable list of accomplishments in the past 2 1/2 years, including a substantial increase in research dollars. But the president clearly had lost the faculty's confidence. He also fared poorly in inevitable comparisons with Purdue's more aggressive president, Martin Jischke.

In announcing early and gracefully his plans to leave IU by June 2008, Herbert has given the university the opportunity to unhurriedly find a strong replacement and to prepare for a smooth transition.

Herbert's plan to reorganize IU's administrative structure also deserves praise. * * *

The university's performance is critical for a state that must attract new investment and create a better-educated work force to compete in a changing economy. The moves announced Saturday could go far in building a stronger IU.

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to Indiana Government

Ind. Gov't. - Canned hunts win new allies: Bill would overturn DNR director’s ban

"Canned hunts win new allies: Bill would overturn DNR director’s ban" is the headline to a story by outdoors editor Phil Bloom in today's Fort Wayne Journal Gazette. Some quotes:

High-fenced deer hunting has found some legislative allies who want to keep the operations open in Indiana despite efforts by the Department of Natural Resources to shut them down.

“I think we need to leave the ones we have here and allow them to operate,” said Rep. William Ruppel, R-North Manchester, one of four co-authors of a bill that would legalize the practice of killing animals – including white-tail deer and elk – behind tall fences. “I don’t think we should force them out of business.”

The proposal comes five months after DNR director Kyle Hupfer announced a ban on high-fenced operations and said he would not support legislative efforts to overturn his decision.

House Bill 1349 is scheduled for a hearing with the Natural Resources Committee at 10 a.m. Wednesday. It would rename shooting preserves “animal hunting preserves” and allow “the propagation of hunting of game birds and privately owned deer and elk” at such facilities. It would set the minimum size at 80 acres and reduce from five miles to one mile the distance a facility must be from a state-owned game refuge or state public hunting ground.

Ruppel said there are 19 operations that would be affected by the proposal, including one in his legislative district. He said the sites were allowed to launch their businesses under previous administrations and shouldn’t be forced to close because of a change in administrations. “What I was upset with, and the reason I’m on this bill is … it doesn’t send good messages to businesses,” Ruppel said. * * *

Several Indiana conservation and hunting organizations are opposed to high-fenced deer operations and called it “canned hunting.” The groups have formed the Fair Chase Hunting Alliance, which is led by the Indiana Wildlife Federation, Indiana Bow Hunters Association, Indiana Deer Hunters Association, Indiana division of the Izaak Walton League of American, Pheasants Forever, Indiana Sportsman’s Roundtable and the Indiana chapter of The Wildlife Society.

“From our standpoint, this issue has been decided,” said John Goss, executive director of the Indiana Wildlife Federation. “The DNR is in the middle of the rule-making process to make some permanent rules on hunting behind fences, and we support that process and that rule. We do not believe the legislature should be taking action at this time.”

The alliance objects to high-fenced operations because they privatize wildlife for personal profit, violate hunting’s “fair chase” standards, and add to the risk of spreading chronic wasting disease. CWD is an always fatal brain disease that affects deer and elk. It has been found in captive or free-ranging wild deer in 14 states and two Canadian provinces.

“The experience in Wisconsin is frightening,” Goss said. “They are spending more than half of the DNR’s fish and wildlife budget on trying to eradicate infected deer.”

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to Environment | Indiana Government | Indiana Law

Ind. Courts - Allen County Public Defender’s Office adds attorney

The Fort Wayne Journal Gazette reports today, in a story by Sara Eaton:

An attorney position has been added to the Allen County Public Defender’s Office to help ease the caseload in misdemeanor court, where thousands of cases are filed annually.

The new position increases the number of public defenders from two to three in Allen Superior Court’s Misdemeanor and Traffic Division, which handles non-violent traffic offenses and minor crimes, including shoplifting, public intoxication and disorderly conduct.

Public defenders are appointed by the court to represent criminal defendants who can’t afford to hire a private attorney.

Chief Public Defender Charles Leonard said his office has maintained two attorneys in misdemeanor court for years but a third is needed because of the caseload. Leonard said the change will spread the caseload among three attorneys rather than two.

It wasn’t spurred by any new requirements or dramatic changes in the misdemeanor caseload, he said.

In creating the additional position, Leonard hired two new attorneys. Both will be misdemeanor public defenders, he said. One will fill the new position and one will replace Zachary Witte, who will move from misdemeanor court to the felony division. * * *

Each will earn $24,000 and handle hundreds of cases annually, Leonard said.

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to Indiana Courts

Ind. Law. - Debate on phone, cable law hits air

Lesley Stedman Weidenbener of the Louisville Courier Journal reports today:

The debate over a bill that would change the way phone and cable services are regulated has reached the airwaves.

The state association representing cable companies is running television commercials across Indiana, warning Hoosiers that Senate Bill 245 will force a tax increase and let new providers serve customers only in wealthy areas -- claims the bill's author said are misleading. * * *

Meanwhile, a national association representing traditional telephone companies is expected to start airing their own ads to support the bill.

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to Indiana Law

Ind. Law - Bill would limit access to birth, death records, pitting freedom of information against privacy concerns

"Bill would limit access to birth, death records" is the headline to an Indianapolis Star story today by Greg Hafkin that begins:

Birth and death records now open to the public would be closed under a bill proposed in the Indiana House, pitting freedom of information against privacy concerns.

House Bill 1067 would make it harder for someone to retrieve another person's birth or death information unless they are a relative of the person listed on the record, a member of the media or someone researching genealogy. Others would have to get a court order to gain access to the records.

Proponents say the legislation would cut identity theft.

The legislation raises issues beyond which records should and shouldn't be open to the public. In an age of Internet blogs and nontraditional families, defining media and who constitutes a relative could be difficult.

"It could be very important for a community group near a stream or near a dump or factory that might suspect for some reason that they're part of a cancer cluster," said Stephen Key, general counsel for the Hoosier State Press Association, which objects to the bill. "By going to the county health department and checking the causes of death for people, they might be able to show there's a problem."

The proposed legislation directs the Indiana State Department of Health to create rules to govern the inspection of records by genealogy researchers. While the media still would have access to most records, it would be blocked from looking at documents that list the cause of death.

Under current state law, information on birth and death certificates is available to the public, with the exception of Social Security numbers.

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to Indiana Law

Ind. Law - Porter hospital’s legal fees will top $1 million for 2005, with much of it paid to an Indianapolis law firm

"Porter hospital legal fees up" is the headline to this story today in the Gary Post-Tribune, reported by Jim Stinson:

VALPARAISO — Porter hospital’s legal fees will top $1 million for 2005, with much of it paid to an Indianapolis law firm representing the county-owned hospital.

A hospital official called the legal expense a normal part of health care.

“(It) amounts to 0.2 percent — that is two-tenths of 1 percent — of Porter’s total annual budget,” said Robin Carlascio, Porter spokeswoman. “Health care is a highly regulated industry with many legal issues and concerns associated with governance and basic operations.”

Porter’s gross revenues are expected to be about $500 million in 2005. Carlascio said as of Nov. 30, Porter spent $984,728 on legal fees in 2005.

Some of the fees paid specifically to Hall, Render, Killian, Heath & Lyman of Indianapolis have caught the attention of Julie Wheeland, head of the Porter Watch Political Action Committee. Wheeland has criticized Porter and Chief Executive Officer Ron Winger, for increasing payments to the law firm since 2001, the year Winger came to Porter as CEO.

“There are some very hard questions,” Wheeland said Monday. “Why has this been necessary under (Winger’s) tenure? ... Are we to believe there are no capable law firms in Porter County? Local billing rates are much lower than Hall Render’s usual $300 per hour.” * * *

A complicated lawsuit by Sanjay Shah may not be helping things.

The story also lists Hall Render's billings to Porter hospital in prior years.

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to Indiana Law

Ind. Econ. Dev. - Different views today on Gary airport funding

The Gary Post Tribune reports today, in a lengthy story by Lisa Shidler:

Gary/Chicago International Airport backers say nothing can stop the airport from being a success now that it is snaring $57.84 million from the Federal Aviation Administration.

The go-ahead for the funding will bring 320 new jobs to the Gary area and energize Northwest Indiana’s economy, a bi-partisan coalition of state, local and national officials said Monday.

Airport leaders say the airport, which has been struggling to lure consistent scheduled passenger service, will now have an advantage once it can move the elevated railroad tracks and complete other projects including extending the runway.

Airport officials also are hopeful that airlines will take notice of this funding and will be more likely to consider starting scheduled passenger service here now that approval has been granted. * * *

King believes snagging this important funding will help the airport lure more airlines, but did say nothing is a guarantee.

“It’s always a bit of a dance,’’ he said when dealing with airlines and pointed out that Gary has had a number of carriers including Pan American Airlines, Southeast and most recently Hooters Air.

“Some say these are rinky dink,” King said. “But having these carriers contributed to showing that people will come here.”

Currently, Hooters has been providing scheduled passenger service out of Gary, but temporarily stopped its service until March.

Officials said the deal couldn’t have been approved without bi-partisan support.

Indiana Governor Mitch Daniels was also at the press conference at the airport on Monday, and said the announcement is just the start for positive news at the airport.

“This is just the beginning,’’ Daniels said. “Indiana’s got to act boldly. It’s just a great day for all of Indiana.”

"Gary airport lands the big one" is the headine to this story by Keith Benman in the Munster (NW Indiana) Times. Some quotes:
"This makes an emphatic statement this will be the next great Chicago airport," said Republican Gov. Mitch Daniels, standing at the airport terminal's west end as union construction workers and others looked on Monday afternoon.

The money will be used to add 2,000 feet to the northwest end of the airport's main runway. The Elgin, Joliet & Eastern Railroad tracks, which lie 130 feet from that end of the runway, will be moved westward. * * *

U.S. Sen. Evan Bayh, D-Ind., a key player in securing the funding, pitched the Gary airport Monday as crucial to the economic health of the entire Chicago area.

"If we run out of airport capacity, our economy will stagnate," Bayh said from Washington earlier in the day. "We have to get beyond these petty jurisdictional battles."

The "petty battles" comment refers to the running feud between Chicago Mayor Richard Daley and U.S. Rep. Jesse Jackson Jr. and his Illinois allies over Jackson's proposed Abraham Lincoln National Airport in south suburban Peotone.

"Gary/Chicago is a reality on the ground capable of serving people's needs, not a cornfield somewhere," Bayh added in another swipe at Peotone.

Another Times story reports:
Some south suburban Peotone residents hoped Monday's FAA pledge of $57.8 million to the Gary airport would help sound the death knell for a proposed airport near their community.

But recent activities and statements of the proposed Abraham Lincoln National Airport Commission show that supporters of a facility between Peotone and University Park are doing anything but giving up.

For several years, the Gary/Chicago International Airport and backers of a Peotone airport have been locked in a debate -- and a race to distinguish their respective plans as the third major Chicago-area airport.

Monday's announcement that the FAA has approved a letter of intent to fund Gary airport runway expansions and other face-lifts put the already established Indiana facility that much further ahead in the race.

Meanwhile, the Chicago Tribune reports today:
Indiana landed federal funding Monday for an almost $90 million project to expand Gary-Chicago International Airport, which has never been able to show its commercial viability despite its proximity to the Loop.

Indiana's governor, Gary's mayor and other dignitaries gathered in the passenger terminal of the underused airport to announce a pledge of $57.8 million in federal funding over 10 years from the U.S. Department of Transportation. * * *

Construction would start this year and be completed as early as 2008, by which time officials said they are confident several carriers seeking relief from congestion at O'Hare International and Midway Airports would be operating at Gary-Chicago, which is about a half-hour drive from the Loop.

Yet the only VIP missing from the crowd at Monday's funding celebration was an airline chief executive officer to announce new service starting up at Gary-Chicago, which Indiana officials tout as the Chicago area's future "third airport."

"The last time I looked, there was still corn and soybeans" at the proposed airport across the border in Illinois near Peotone, said Gary-Chicago airport director Paul Karas. "We are a functioning airport."

But Gary-Chicago once again offers no regularly scheduled airline service after Hooters Air suspended service on Jan. 9. The niche carrier said it may resume service at Gary as early as March.

For now, the airport survives on revenue from charter passenger flights, cargo operations, general aviation and corporations, including Chicago-based Boeing Co., which hangars its Midwest corporate jet fleet at Gary-Chicago.

Posted by Marcia Oddi on Tuesday, January 17, 2006
Posted to Indiana economic development

Monday, January 16, 2006

Law - U.S. Supreme Court oral arguments tomorrow in Wisconsin Right to Life

Wisconsin Right to Life, Inc. v. Federal Election Commission will be argued before the U.S. Supreme Court tomorrow, Tuesday, Jan. 17th. This is one of two campaign finance cases granted cert by the Court this term in which Terre Haute attorney James Bopp, Jr. is lead counsel.

The Christian Science Monitor for 1/17/06 story is headlined "A key campaign-finance law is back in the high court Tuesday, as interest groups challenge a rule on election-season ads." Here are a few quotes from this comprehensive coverage:

Tuesday the Supreme Court is set to hear a challenge to a portion of the law that bars corporations and unions from placing broadcast advertisements that mention a candidate by name. The ban on so-called electioneering communications can extend for up to three months prior to an election.

At issue in Wisconsin Right To Life v. Federal Election Commission is whether the campaign-finance law applies only to ads aimed at influencing elections or whether it also bans broadcast ads meant to influence the legislative process and the work of Congress in the often-critical weeks before an election. The suit asks whether corporations and unions interested in lobbying rather than electioneering are nonetheless barred from placing broadcast ads that mention a candidate.

"There is a huge difference between electioneering and lobbying," says James Bopp, who is arguing the case on behalf of Wisconsin Right To Life Inc.

Solicitor General Paul Clement disagrees. He says such lobbying efforts carried out on the eve of an election amount to "dual purpose" communications. Because such lobbying cannot easily be separated from electioneering, both are regulated under the law, he says.

"A group that feels strongly enough about an issue to air an advertisement on it in the months before an election ... will invariably have a view as to which candidates may be more favorably disposed to the group's view of the issue," Mr. Clement writes in his brief.

See this Jan. 7, 2006 ILB entry for more.

Posted by Marcia Oddi on Monday, January 16, 2006
Posted to General Law Related

Ind. Law - "Kittle Blasts Legislator Health Care for Life; 'Needs to go back to Zero'"

"Kittle Blasts Legislator Health Care for Life; 'Needs to go back to Zero'" is the headline to a brief report today in Howey Political Report Online:

As out-going Indiana Republican Chairman Jim Kittle Jr., was leaving his Friday press conference, he told HPR how disturbed he was about the health insurance for life deal legislators secretly passed several years ago.

“That needs to go back to zero,” Kittle said, saying he knew nothing of the deal that has led to speculation that it could cost Indiana taxpayers hundreds of millions of dollars. Kittle called it an “inappropriate perk.” * * *

Kittle's comments came after a series of stormy caucus meetings in the Senate late last week where members were told that House Speaker Brian Bosma is about to end the perk for House members.

The lifetime health insurance plan covers everyone in the legislative branch and was passed several years ago without any public hearings. The development has volcanic political implications and may have resulted in one legislator, State Rep. Bob Hoffman, announcing his retirement last week.

Sources tell HPR that Senate members of both parties are livid at both Bosma and Senate President Pro Tempore Robert Garton: Bosma for wanting to pull the plug on the program, and Garton for his role in fashioning the luxury perk that even covers ex-spouses.

Garton told the Evansville Courier & Press that he has actuarial data on the potential cost of the program, said to range anywhere from hundreds of millions to $1 billion, but refused to share that information. State Auditor Connie Nass is awaiting contract approval from the State Budget Agency before she can begin an actuarial study, but told HPR that cost for taxpayers will be "hefty."

The Evansville Courier&Press story referenced is available here. It does indeed say that Sen. Garton refused to provide access to "an actuarial study on the potential future costs of the benefit." However, the C&P story also reports:
Nass chose a bidder and drew up a contract, but the Indiana State Budget Agency announced Tuesday [Jan. 10th] that they would not sign off on the study.
Somewhere in the past few days I read (and was reminded of by Howey's quote that the threat of change "may have resulted in one legislator, State Rep. Bob Hoffman, announcing his retirement last week") that some legislators were predicting mass retirement if their health care benefit were to be curbed. Apparently, their thinking is that the health benefits that retiring and retired legislators granted themselves (and their spouses, former spouses, staff, etc.) will never be curtailed, no matter what ...

And indeed, there may be a Catch-22 here. The remedy, if you are unhappy with your legislator, is always said to be: vote him/her out of office.

But that remedy seems ineffective in this case, perhaps by design.

Here, unless changes are made, if you vote your legislator out of office because you are unhappy with the "secret life-time health benefits", or if he/she up and retires, then he/she will retain the benefits.

In addition, as pointed out in this ILB entry from earlier today, voting your legislator out of office may be no easy matter, unless he/she has a viable primary challenger. And the deadline for primary filing is only a month away.

And there is more. There are many parallels between this Indiana story and the "midnight pay raise" that Pennsylvania legislators voted themselves last year that led to a voter revolt. More to follow a later entry ...

Posted by Marcia Oddi on Monday, January 16, 2006
Posted to Indiana Law | Legislative Benefits

Ind. Econ. Dev. - Proposed Duke/Cinergy merger sees some opposition

Lisa Cornwell of the AP has this story today in the Cincinnat Enquirer. Some quotes:

A proposed $9 billion takeover of Cincinnati-based Cinergy Corp. by a North Carolina power company is being criticized by some consumer advocates, disrupting what had been a smooth approval process.

The merger of Cinergy with Charlotte, N.C.-based Duke Energy Corp. would create a company with more than $70 billion in assets and 5.4 million retail customers, making it one of the nation's five largest power companies.

The deal sailed through South Carolina's and Kentucky's regulatory processes, winning approval in November.

But North Carolina and Indiana consumer groups remain opposed, and the Ohio Consumer's Counsel is trying to get a rehearing.

Ohio's commission signed off on the merger last month.

Critics say there is a lack of adequate consumer protection and inequitable benefits for rate payers in the deal.

Their concerns mirror those of consumer advocates nationally as utilities continue consolidation efforts in the wake of last summer's repeal of a decades-old federal law.

Utilities and the Bush administration pushed for repeal of the law that had confined utilities to regional operations.

"We don't think these large mergers are good for consumers," said Tyson Slocum, an energy program director at Public Citizen, a Washington D.C.-based watchdog group.

"They put more utilities in fewer and fewer hands, increasing the likelihood of complex financial structures that will be less transparent and undermining the ability of state regulators to protect consumers."

Four large utility mergers proposed in the last year, including Duke-Cinergy, have encountered few hurdles so far, said Charles Fishman, analyst with A.G. Edwards & Sons Inc. * * *

The Citizens Action Coalition of Indiana signed off on Cinergy's 1994 acquisition of Indiana's PSI Energy Inc. because it made sense and meant consumer savings, but opposes the current deal, said Mike Mullett, an attorney for the coalition.

"Indiana customers got about 85 percent of the savings in 1994, but here they are only getting 42 percent," Mullett said. "Rate payers are getting the short, dirty end of the stick."

Another sore point for the Indiana coalition is the risk of higher rates for consumers from any losses that the combined company might incur through any of its non-regulated energy subsidiaries or other types of business ventures. * * *

Industrial consumer groups in North Carolina oppose the proposed merger, and that state's regulatory commission took the unusual step of holding oral arguments last month. A decision is pending.

Readers with long memories may recall that it was the opposition of industrial consumers that ultimately led to the end of then-PSI's Marble Hill nuclear plant project in the early 1980s.

Posted by Marcia Oddi on Monday, January 16, 2006
Posted to Indiana economic development

Ind. Courts - News from Noble, Cass counties [Updated]

Noble Superior Court. The KPC News, from DeKalb, LaGrange, Noble and Steuben Counties in NE Indiana, is reporting today:

ALBION — [Noble] Superior Court Judge Stephen Spindler will not seek re-election to the bench beyond his current term, he said this morning.
Unfortunately, the rest of the story is unavailable to non-subscribers. This, like the Bloomington paper noted earlier today, represents another short-sighted business model, IMHO.

[More] An alert reader has sent the ILB more from the above story, reported by Bob Braley:

ALBION — Superior Court Judge Stephen Spindler will not seek re-election to the bench beyond his current term, he said this morning. “My plan is to retire,” Spindler said.

This year marks the end of the term as Superior Court I judge that Spindler, 63, began in 2000. He has been Superior Court I judge since 1990.

“The next term will be six years,” he said. “I don’t want to work beyond 65.”

Spindler, a Democrat, could have run for re-election and retired mid-term, but chose not to do so. “To run for a six-year term when I don’t have any intention of completing it, I think, would be dishonorable,” he said.

If Spindler retired mid-term, a judge would be appointed to his bench for the rest of his term, leaving the people with no say in an election for that post for four years. He feels that isn’t right when he knows his departure would be coming, so he decided to retire now.

The procedure for Superior Court differs from that for Circuit Court, where a new judge would be elected at the next general election, Spindler said.

Ligonier attorneys Steve Hagen and Robert Kirsch will be vying for Spinder’s judgeship in the May Republican primary.

Spindler was himself appointed to the bench effective Jan. 3, 1990, and was elected in 1994 and 2000.

Asked about his plans after retirement, Spindler answered, “I hope to be a senior judge.” Senior judges are retired judges who fill in during vacations or illnesses of other judges. * * *

“Judge Spindler made an enormous impact on Noble County by presiding over the most serious of felonies, including A felony and murder cases,” said Noble County Prosecutor Steven Clouse.

“The manner in which he approached this task will long be noted in the judicial community,” Clouse said.

“It truly has been a pleasure being able to appear before Judge Spindler,” Noble County chief public defender James Abbs said this morning.

Abbs said Spindler is a very fair judge and a very intelligent man who puts in a lot of time and diligence in his decisions. “They’re well thought out,” Abbs said.

“I have practiced in four states and in federal court and I’ve been before a lot of judges,” Abbs said. He likes a judge who follows the rules and laws of the court closely. “He’s one of those judges who does it that way,” Abbs said. “It makes our work all so much easier from that standpoint.”

Spindler has worked especially hard to find dispositions in juvenile cases that can help young people change their lives and become productive citizens, Abbs said.

“He puts in extra work, extra time,” Abbs said. “He follows these cases closely and they’re very important to him.”

Cass Circuit Court. WSAL, Logansport, is reporting:
LOGANSPORT - There's another candidate for Cass Circuit Court judge. Former judge Robert L. Justice will enter the ring to run for the seat being vacated by Judge Julian Ridlen. Justice is a lifelong resident of Clinton Township, and has practiced law in Logansport since 1972. He has served as Logansport City Judge in 1978 and 79, and as Circuit Court judge from 1982 to 1988.

Posted by Marcia Oddi on Monday, January 16, 2006
Posted to Indiana Courts

Ind. Courts - Rep. Peggy Welch faces dilemma over her husband's authority as juvenile judge

The Bloomington Herald-Times (paid subscription only, which means we don't often report on Bloomington stories) reports today that Indiana state Rep. Peggy Welsh, Bloomington, "must vote on bill that will affect her husband's authority as juvenile judge." A few quotes:

The major fiscal bill of the 2006 session, House Bill 1001, has a provision that would limit juvenile judges' discretion to send troubled kids to institutions. Instead, the county's Office of Child Services would decide that.

Welch and other juvenile judges would be allowed to deviate from that decision - but would have to issue a public finding of their reasoning that includes an estimate of any added costs the office would incur.

And while the bill would cap child care costs for counties at this year's level for the future, with the state picking up the increases, the county would have to cover the added cost if the judge overrode the office.

All of which puts Rep. Welch in a tough situation, because the proposal is just one part of a huge bill with lots of financial implications for local governments, some good. She might favor most of them and want to vote for it - but in so doing vote to reduce her own husband's judicial authority.

Hence the jam, which she discussed at the Statehouse. * * *

Welch's situation raises the prickly issues of disclosure and appearance of impropriety. Do House rules require her to disclose a conflict of interest or abstain from a vote on something that affects her so closely?

No, she said. But "I try to be cognizant" of the look of such situations, she said.

For example, she said, when the judicial pay raise bill came up for a vote at the end of the 2005 session, House Speaker Brian Bosma officially excused her from voting at her request because a pay raise for her husband so directly affected her own financial situation. * * *

Judge Welch said Friday the state's "big picture" goal is to spread limited child welfare resources more equally across the state and its smaller counties by controlling costs.

But he said, "it may not be in the best interests of the child" if judges are limited in what they can do with juvenile placements. "It can easily have unintended consequences," he said.

Posted by Marcia Oddi on Monday, January 16, 2006
Posted to Indiana Courts | Indiana Government | Indiana Law

Ind. Gov't. - Deadline for primary filing is Feb. 17th

The Fort Wayne Journal Gazette points out today:

Filing for the primary election opens Wednesday. That’s the first day candidates for congressional, state, county and some school board contests can file paperwork to be placed on the May 2 ballot.

The filing period closes Feb. 17, when voters will know the lineup for primary races for Congress, all Indiana House seats and half of the Senate seats, as well as numerous state and county contests.

Remember that, because of computer-drawn House, Senate, and Congressional districts, not only in Indiana but nationwide, the primary race is most often the only game in town. If you are unhappy with your representation, the deadline for filing is Feb. 17th!

Once that date is past, your choices in the May primaries are set, and the outcome of the general elections in November is most-often pre-determined by the way the lines have been drawn, to favor a specific party.

This is why the U.S. Supreme Court's decision to review the Texas redistricting case, and the concept of political districting, is important. See some earlier ILB entries from 12/12/05, 12/15/05, and 12/29/05.

This is also why the concept of an Indiana bipartisan redistricting commission , as discussed in this Jan. 10, 2006 ILB entry, is important.

[More] Today's Lafayette Journal & Courier has an editorial on the state redistricting proposal.

Posted by Marcia Oddi on Monday, January 16, 2006
Posted to Indiana Government

Ind. Law - Ordinance could limit billboards: Plan backs smaller, lower signs

"Ordinance could limit billboards: Plan backs smaller, lower signs" is the headline to a story today in the Fort Wayne Journal Gazette by Jenni Glenn. Some quotes:

Fort Wayne officials hope to rein in obtrusive signs with a new ordinance. The proposed rules would reduce the number of billboards in the city and make them smaller, said Greg Leatherman, the city’s deputy director of development. Residents will have a chance to weigh in on the proposed changes at a public hearing Jan. 23.

Under the ordinance, the maximum size of a billboard will be reduced to 300 square feet from 675 square feet, Leatherman said. Signs would be lowered to a maximum height of 30 feet, down from 35 feet. Billboards would be concentrated in heavily commercial areas and along highways under the ordinance, he said. The allowed size and height may vary, depending on the zoning district where the sign is located.

The ordinance would reward developers who use certain types of signs that are less intrusive, Leatherman said. Businesses that mount their signs on building walls or install ground-level, ornamental monument signs would be allowed to make their signs larger. City planners hope the ordinance will discourage businesses from using freestanding signs, which can create a cluttered look on city streets, he said.

“If you have existing buildings that have blank walls,” Leatherman said, “why wouldn’t you convert freestanding signs that block and take up space to wall signs?”

The city determines the maximum size of a business sign based on the building’s size and zoning classification. Businesses can sell any excess sign space they have for use as a billboard, Leatherman said. Fort Wayne Plan Commission members can make exceptions for some signs that exceed the size regulations. * * *

The new rules would make it difficult to install new billboards, hurting sign companies and the businesses they advertise, Walcott said. Billboards provide important services, he said. Along Coliseum Boulevard, billboards provide directions to visitors and bring customers to businesses.

Readers may recall the Supreme Court's Nov. 4, 2005 decision involving an Indianapolis sign ordinance in In Metropolitan Development Commission of Marion Co., et al v. Pinnacle Media, LLC.. See the ILB entry here. For follow-up entries, type "Pinnacle" in the search box.

Posted by Marcia Oddi on Monday, January 16, 2006
Posted to Indiana Law

Ind. Law - Adult business dispute draws top lawyers to fight in Spencer

"Adult business dispute draws top lawyers to fight in Spencer" is the headline to an AP story today in the Louisville Courier Journal (a very abbreviated version appears in the Indianapolis Star). Some quotes:

DALE, Ind. -- A zoning dispute involving a 24-hour adult bookstore in southwestern Indiana has both sides hiring lawyers from distant cities who have handled similar cases.

H. Louis Sirkin, a Cincinnati attorney who has handled several obscenity cases, including some for Hustler Publisher Larry Flynt, is now representing the Love Boutique, on U.S. 231 in Spencer County. Sirkin said Spencer County's adult-entertainment ordinance is unconstitutional.

He has tried obscenity cases for clients, including Flynt, and recently unsuccessfully asked the U.S. Supreme Court to review strip-club restrictions in Cincinnati.

Officials in Spencer County have retained Scott Bergthold of Chattanooga, Tenn., who has helped many communities write laws regulating adult businesses. New Albany hired him in a recent dispute involving a store there.

Bergthold said he expects Sirkin to file a complaint within a week.

Meanwhile, the two sides reached an agreement Friday under which the Love Boutique can continue to operate as a convenience store. * * *

The county said the owners of Adult Plaza did not request the required permits and violated limits on hours of operation and proximity to homes, schools or churches.

In December, the county obtained an emergency injunction ordering the Plaza to shut down, but officials said the business moved to another building at the same former truck stop.

The ILB has had many entries on Indiana legal disputes about the operation of adult businesses. To see a list of them, type "adult business" in the search box.

Posted by Marcia Oddi on Monday, January 16, 2006
Posted to Indiana Law

Ind. Courts - Time-limits rule worries prosecutors

"Time-limits rule worries prosecutors: 3 suspects freed because cases weren't tried within 6 months" is the headline to a story in the Indianapolis Star today by Richard D. Walton. Some quotes:

The Indiana criminal rule has been on the books for decades. But its importance was never more evident than last week when it resulted in three criminal suspects going free. * * *

Designed to ensure a defendant's constitutional right to a speedy trial, Rule 4 requires prosecutors to bring a case to trial within specified time limits. But prosecutors are finding it increasingly difficult to meet the deadlines in an era of DNA specimens and blood spatters, which take time to collect and analyze, and which the public now expects. * * *

Rule 4 requires that an incarcerated person be released from jail if the case is not brought to trial within six months of the charge or arrest. In August, the Indiana Supreme Court reinforced the requirement, finding in favor of a suspect in Tipton County who said he was entitled to be released because he had not been tried within the time period, plus a link to the Supreme Court's 8/26/05 ruling in State ex rel. Michael Bramley v. Tipton Circuit Court.

The rule has exceptions. When delays are caused by the defendant -- for example, by seeking continuances -- the clock stops and the time does not count against the prosecution.

Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council, says that can be a tough call for a judge.

"It's an extremely complex rule," he said. "To me it's probably the closest thing in criminal law to tax practice: trying to see who's responsible for what delay and how many days' delay are you charged with?" * * *

Under a provision of Rule 4, a defendant is supposed to be tried within 70 days of seeking a speedy trial. This didn't happen, partly because Prosecutor Jacobs was not informed when the Jennings County court officially assumed jurisdiction in the case, and the clock started to run.

Marion County Prosecutor Carl Brizzi, while saying it's rare for a defendant to be released in Marion County because of Rule 4, says it has happened. "There are times when we have a witness who may be unavailable. It surprises us when they fail to appear. And then you can't go forward with the case."

Jacobs [Nancy Jacobs, interim Washington County prosecutor], who is appealing the dismissal of charges against the Jacksons, said that in this time of complex forensics, the time restraints are problematic. "I think 70 days places an incredible burden upon prosecutors," she said. "In some cases this (requirement) might force a prosecutor to go to trial without evidence that they might otherwise present to a jury."

The ILB had an entry about the time-limits on Dec. 4, 2005, based on a Fort Wayne Journal Gazette story headlined "Court ruling filling up calendars: State justices decide jailed defendants must be tried within 6 months of arrest." The entry includes links to the 8/26/05 Supreme Court ruling in State ex rel. Michael Bramley v. Tipton Circuit Court, plus an earlier story from 9/1/05 titled "Man jailed for 526 days on murder charge freed."

Posted by Marcia Oddi on Monday, January 16, 2006
Posted to Ind. Sup.Ct. Decisions | Indiana Courts

Sunday, January 15, 2006

Ind. Decisions - Advocacy group heralds court decision: Ruling on Merrillville water service remanded back to IURC

This story by Deborah Laverty in the Munster (NW Indiana) Times reports that:

A state consumer advocacy group called a recent Indiana Supreme Court decision "good news" for residents formerly served by Lincoln Utilities water distribution system.

That decision, announced at this week's Town Council meeting, lets stand a Sept. 13 ruling made by the Indiana Court of Appeals. The ruling is on the side of about 2,000 business and residential customers and not new owner Indiana Water Services, said Indiana Office of Utility Consumer Counselor spokesman Anthony Swinger.

The Indiana Court of Appeals ruling reversed an earlier decision by the Indiana Utility Regulatory Commission that said Indiana Water Services could recoup 90 percent of the $1.25 million purchase price of the former Lincoln Utilities.

That recoupment cost would have meant each customer could be asked to pay about $7 a month, or $85 extra a year.

"It's good news for the customers of the utility. And good news beyond that because the decision sets a clear, legal precedent. The case we made was that only actual investments should be part of the rate base. We made that case and the court order clarifies that," Swinger said.

IURC spokeswoman Mary Beth Fisher said the case is now remanded back to the commission, which must issue a new order.

The case referenced is Office of Utility Consumer Counselor v. Lincoln Utilities Inc. and Indiana Water Service Inc. Here is a link to the ILB entry on the 9/13/05 Court of Appeals decision. The Indiana Supreme Court denied transfer (i.e. let stand the Court of Appeals decision) on Jan. 4, 2006. See the Court's Jan. 6, 2006 transfer list here (on page 3).

Posted by Marcia Oddi on Sunday, January 15, 2006
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

Environment - Contaminated INDOT property in Dyer remains the subject of apparent foot-dragging

"State official says gas station too expensive to clean up" was the heading to this ILB entry from Nov. 17, 2005, quoting from a story (still available) from the Munster (NW Indiana) Times.

Today the Times has another story, reporting that contaminants from the INDOT property may seep under adjoining properties. Some quotes:

DYER | Concerns about what lies beneath the ground are surfacing in Dyer at the corner of Hart Street and U.S. 30.

The property, once a Clark gas station, is now vacant and owned by the Indiana Department of Transportation.

Will Wingfield, spokesperson for INDOT, said it bought the site from Clark Oil and Refining in April 2004 for $382,500. Wingfield said the property was acquired after condemnation proceedings because the state was working on a project to add travel lanes and a bridge between Hart and Moeller streets.

Although that project was completed in 1995, the contamination at the site due to leakage from underground petroleum tanks remains.

Wingfield said since two underground petroleum storage tanks were removed as was some adjacent contaminated soil, and INDOT has been watching the site with 12 monitoring wells. Wingfield said INDOT submits quarterly reports to the Indiana Department of Environmental Management. He said the latest report was submitted in October 2005.

Posted by Marcia Oddi on Sunday, January 15, 2006
Posted to Environment

Ind. Law - More on: Telecommunications rears its confusing head

Again this year the General Assembly is considering a bill to, among other things, limit the power of a municipality to offer broadband service to its citizens.

Business writer John Ketzenberger's column today in the Indianapolis Star talks about how this brand of "deregulation" could have a "big impact on little guys." The column begins:

There are a lot of places in Indiana like Auburn, small towns that struggle to keep the well-paying jobs.

When Cooper Standard Automotive told Mayor Norm Yoder it needed dependable broadband Internet access or else, the mayor figured out how to do it.

His reward? A legislative shot across the bow last session that, if it had passed, would have kept Auburn out of the broadband business. This year the massive new telecommunications deregulation bill also presents a threat to local communities like Auburn, Scottsburg and Frankfort that are doing all they can to retain jobs.

The new bill isn't a ban, but it adds an unnecessary layer of bureaucracy designed to protect telecommunications companies.

The big companies don't always find it profitable to serve small towns. Remember the Rural Electric Membership Cooperatives were developed to bring power to rural areas left undeveloped by big utilities.

A lot of towns in Indiana think they're being left behind again, this time in developing broadband Internet access. They don't want to be dependent on the big companies.

"Deregulation is good public policy," Yoder said. "If we deregulate the telecommunication companies, then why regulate the municipalities out of the system?"

So if competition is a good thing, as the telecom companies claim, then more competition is better. Especially when high-speed access to the Internet for local communities these days is akin to interstate highway access in the 1950s.

Use this link to create a list of ILB entries involving telecommunications from this year and last.

Posted by Marcia Oddi on Sunday, January 15, 2006
Posted to Indiana Law

Ind. Gov't. - More on: IU President gives advance notice of resignation

The Indianapolis Star has a front-page comprehensive story today by Staci Hupp detailing the IU administration overhaul to take place as the result of President Herbert's resignation yesterday. It could, however, have benefited from some graphics to aid in explaining the restructuring.

Posted by Marcia Oddi on Sunday, January 15, 2006
Posted to Indiana Government

Ind. Law - More on: Arbramoff scandal hits close to home

The Indianapolis Star's "Behind Closed Doors" column reports today:

A lobbyist tied to the Jack Abramoff lobbying scandal has left the Washington office of Indianapolis-based law firm Barnes & Thornburg.

Neil Volz has not been charged with any offense. But he was referred to in court documents as "Staffer B," a former congressional aide who went to work for Abramoff.

Part of the conspiracy charge Abramoff pleaded guilty to involves compelling Volz to lobby his former boss, U.S. Rep. Bob Ney, R-Ohio, before the one-year ban on doing so had expired.

Volz joined Abramoff as a lobbyist with Greenberg Traurig in 2002.
Last year, he went to Barnes & Thornburg, where he was one of four D.C.-based lobbyists.

"There has never been a suggestion that any of the lobbying activities under investigation occurred at Barnes & Thornburg," said Richard Streeter, managing partner for the D.C. office. "Accordingly, we are not in a position to discuss conduct and events which do not involve our firm."

See also this 1/4/06 ILB entry.

Posted by Marcia Oddi on Sunday, January 15, 2006
Posted to Indiana Law

Saturday, January 14, 2006

Ind. Courts - News from Tippecanoe County courts

"Judge Morrissey to seek second 6-year term" is the headline to this story today in the Lafayette Journal & Courier. Some quotes:

Judge Michael Morrissey, the founding judge of Tippecanoe Superior Court 6, announced his intention to seek a second six-year term on the bench.

Morrissey, 51, a Republican from West Lafayette, was elected judge of the newly created court in 2000. He is the presiding judge of Tippecanoe Superior Courts 4, 5 and 6, the county's three high-volume courts, which handle the bulk of misdemeanor, minor felony and small claims cases.

"I've enjoyed this experience," Morrissey said. "I think myself and my staff are running the court effectively and efficiently, and I look forward to serving another six years."

In the five years since Superior Court 6 opened, it has handled 60,268 infraction, 8,906 misdemeanor and 1,491 felony filings.

Morrissey also is presiding judge of the county's adult drug court, serves on the advisory board of Tippecanoe County Community Corrections, and works closely with Court Services, the non-profit agency that provides court-ordered substance abuse evaluations. * * *

Superior Court 6 is the only judgeship up for election in Tippecanoe County this year.

In its "Quick Takes" editorial section today, the C&J writes about a new court program:
Like or not, we're an aging nation. And like it or not, the influx of court cases involving senior citizens incapable of making their own decisions -- and who have no one there to help -- is only going to increase.

That uncomfortable reality was met, at least in part, last week with the creation of the Adult Guardianship & Advocacy Program in Tippecanoe County. Initiated by Circuit Court Judge Don Daniel and financed by the Greater Lafayette Community Foundation, the program will match trained volunteers with ill or incapacitated seniors who need legal guardians. The temporary legal guardians will help sort through such thorny questions as hospital admissions and other health care needs.

Hats off to everyone involved for coming up with an innovative way to meet a need that is bound to grow.

Posted by Marcia Oddi on Saturday, January 14, 2006
Posted to Indiana Courts

Ind. Decisions - Yesterday's Court of Appeals eminent domain ruling reported in Fort Wayne papers

Yesterday's 29-page opinion by Judge Vaidik in Southtown Properties, Inc., et al v. City of Fort Wayne, et al (see ILB entry here, last item) is the focus of stories in the Fort Wayne papers today.

"Court affirms Southtown’s selling price"
is the headline to a story by Cindy Larson in the Fort Wayne News-Sentinel. Some quotes:

The Indiana Court of Appeals on Friday ruled against the former owner of Southtown Mall, who said the mall was worth more than the $4.5 million the city paid for it.

In March 2004, the city took possession of the property through eminent domain, and has since demolished the dilapidated mall to clear way for the new Southtown Centre, which will include a Menards home-improvement store and a Wal-Mart. The mall formerly was owned by an investment group headed by North Carolina businessman Haywood Whichard.

During the 2004 trial, Whichard’s group tried to convince the jury the property was worth $8.5 million. When the jury determined it was worth only $4.5 million, Whichard said he would appeal, and did. Friday, the Appeals Court affirmed the lower court’s decision as to the value of the property and ruled in favor of the city. * * *

“We are pleased by (Friday’s) ruling in favor of the city of Fort Wayne’s efforts to revitalize the former Southtown Mall site,” Mayor Graham Richard said in a statement. “Southtown Centre has a bright future.”

"Ruling on Southtown is upheldFormer owners lose condemnation appeal" is the headline to a story by Dan Stockman in the Fort Wayne Journal Gazette. Some quotes:
The city had set aside $1 million in case the court raised the price. Richard said that money now will likely be available to help develop the site, unless the owners appeal the case to the Indiana Supreme Court.

Stephen Fink, attorney for the mall’s owners, said they will do exactly that. “We believe the private property rights are being eroded throughout the country, and if this decision is upheld it will further erode those rights,” Fink said. “We’re confident the Indiana Supreme Court will reverse the decision … thereby protecting Indiana landowners.”

Fink said the opinion ignored many facts and had a number of inconsistencies he is confident the Supreme Court will want to consider.

The appeals ruling centered on incentives the city had offered to potential buyers in hopes they would purchase the site from Southtown Properties, which was letting it deteriorate. City officials offered items such as a new entrance to the property and tax benefits, but when the question of the value went to trial, the jury was not allowed to hear about them.

The owners argued the jury also should have been allowed to consider offers made by potential buyers and evidence that the city’s developer, Barry Sturges, kept changing his view of the property’s value.

The decision, written by Judge Nancy H. Vaidik and joined by Patrick D. Sullivan and Ezra H. Friedlander, said increases or decreases in the value that would be caused by the project the land is being condemned for cannot be considered. Vaidik cited a 1969 case in which the state lost its argument that the price of land being taken for a highway should be lowered because the highway would decrease the property value.

“Evidence of changes in the value of property being brought about by the project for which the property is being taken is irrelevant,” Vaidik wrote.
City Attorney Tim Manges said the ruling means the value of the property for condemnation purposes, at least, was unrelated to the project it was being condemned for.

“You have to sort of remove the fact that there’s a condemnation going on,” Manges said. “You’ve got to look at this piece of property on its own merits.”
The city had argued that the other offers should not be considered as evidence of the land’s value because they were just offers, not contracts. The court agreed they should not have been allowed as evidence but for a different reason.

Instead, the court said, the jury should not have heard about the other offers because they were based on the incentives the city had been offering, and because the incentives are irrelevant, the offers are too. * * *

The owners also argued the price was artificially lowered by the city telling the jury that little maintenance was done on the property and it was in a state of disrepair. They said no work was done because the purchase offers they received asked them not to make any major changes and the jury should have been allowed to know why they didn’t maintain the mall. The court said the reasons the mall was falling apart were irrelevant, only the fact that it was falling apart.

Posted by Marcia Oddi on Saturday, January 14, 2006
Posted to Ind. App.Ct. Decisions

Courts - Cincinnati judges sentences defendant to attend church; acknowledges separation of church and state concerns

The Cincinnati Enquirer reports today in a story headlined "Man accused of racial slurs, threatening cabbie agrees to attend predominantly black service," that:

A judge gave Brett Haines a choice Friday: Go to jail or go to church.

The Anderson Township man, convicted of disorderly conduct, immediately chose six weeks of Sunday worship over 30 days in the Hamilton County Justice Center.

But there's a catch.

Haines, who was accused of using racial slurs and threatening a black cab driver, must attend services at a predominantly black church.

"It seems readily apparent to me that you don't like black people," Judge William Mallory Jr. told Haines. "That's OK with me. But you have to understand that you are at the whim and authority of a black judge."

That's when Mallory offered church as an alternative sentence, an option he said might broaden Haines' cultural awareness.

"If you want to get out of jail, you're going to have to raise your black consciousness," the judge said.

Mallory said he was concerned about maintaining a separation between church and state, so he asked Haines whether the option would offend his beliefs. Haines said he was not a church-goer, but would like to give it a try.

"Absolutely," he said when given the choice.

His lawyer, Dennis Deters, said his client told him that the sentence might do him some good, and assistant prosecutor Kirstin Fullen raised no objection.

Posted by Marcia Oddi on Saturday, January 14, 2006
Posted to Indiana Courts

Ind. Gov't. - IU President gives advance notice of resignation

Last August 8th, the ILB reported here for the first time on the criticism surrounding IU President Adam Herbert's on-the-job performance. Additional entries followed on Aug. 29th ("IU embarks on image makeover") and Oct. 5th ("IU president answers critics").

Yesterday, President Herbert announced his resignation, effective at the end of his 5-year contract, in 2008. Here is today's Indianapolis Star coverage by Staci Hupp. Some quotes:

Indiana University President Adam Herbert told trustees Friday that he will quit when his contract runs out in 2008.

The announcement signals his surrender in a long battle with Bloomington faculty members, IU alumni, state leaders and others who have questioned whether Herbert was up to the job. Critics describe him as a weak, aloof leader.

His decision lets trustees off the hook on a call for an unprecedented midyear job review of Herbert. Trustees had been expected to address the issue at a special meeting today.

Instead, they will consider a proposal from Herbert to create a provost, or chief academic officer, for the Bloomington campus.

Now about halfway through his five-year contract, Herbert requested the search start for his replacement. He said the extra notice will give him and the trustees time to reform IU's leadership structure and fix its image troubles, for which he largely has been blamed. * * *

He has led a high-profile effort to turn around a financially ailing athletic department, and he identified a lack of direction for some of IU's campuses. Newsweek named IU the nation's "hottest big state school" in the fall.

Yet criticism has overshadowed the accomplishments. It comes from many sources, including alumni, state leaders, university deans and donors with deep pockets.
They characterize Herbert as a weak leader who is slow to make major hiring decisions, shies away from public appearances, snubs donors and spends too much time at a home he owns in Florida.

Herbert also has endured constant comparisons to Purdue University President Martin Jischke, who some IU loyalists say has managed to push Purdue ahead of IU as the state's premier research university.

The key complaint against Herbert, however, has been about his unwillingness to fill the position of chancellor at Bloomington. That job, IU's No. 2 administrative post, has lacked a permanent replacement for more than two years. Kenneth Gros Louis, who retired from the job four years ago, has filled in since January 2004.

The issue boiled over this fall when Herbert bypassed the Bloomington faculty's pick for chancellor and halted the search. The decision triggered a faculty protest that culminated in a request that the trustees conduct a midyear job review of Herbert.

Access an AP story by Tom Davies here, via the Louisville Courier Journal.

Posted by Marcia Oddi on Saturday, January 14, 2006
Posted to Indiana Government

Friday, January 13, 2006

Ind. Courts - Disciplinary orders issued to three Indiana attorneys on Jan. 6th

In the Matter of Todd M. Conover

Facts: On April 5, 2004, respondent was convicted, on a guilty plea, of Domestic Battery, a class A misdemeanor. The incident involved the respondent and his girl friend with whom he had resided for approximately fifteen years.

Violations: Respondent’s conduct violated Ind. Professional Conduct Rule 8.4(b), which prohibits an attorney from committing a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects.

Discipline: Public reprimand. The Court, having considered the submission of the parties, now APPROVES and ORDERS the agreed discipline. In approving a public reprimand, we do so in part because of this Court’s policy of encouraging agreed resolutions of disciplinary matters. We also note respondent has completed the twenty-seven week “Stop Abuse and Violence Through Education” program and that there have been no further incidents of this nature. We also observe that the victim’s testimony in this matter changed over time regarding the nature of the incident. The Costs of this proceeding are assessed against the respondent. The Court further finds that with the acceptance of this agreement the hearing officer appointed in this case is discharged.

In the Matter of Thomas L. Montgomery
IT IS, THEREFORE, ORDERED that, pursuant to Admis.Disc.R. 23(10)(f), the respondent, Thomas L. Montgomery, is hereby directed to show cause in writing, within 10 days of service of this order, why he should not be immediately suspended from the practice of law in this state due to his failure to submit to the Disciplinary Commission a written response to pending allegations of misconduct requiring a written response received by the respondent at his official address of record with the Clerk of this Court.
In the Matter of Edwin Dean Singleton
The Court finds that the respondent has not submitted a response to the Order to Show Cause dated October 26, 2005. Accordingly, the Court finds that the respondent should be suspended immediately from the practice of law in Indiana pursuant to Admis.Disc.R. 23(10)(f), and costs assessed against the respondent in the amount of $509.30.

IT IS, THEREFORE, ORDERED that the respondent, Edwin Dean Singleton, is hereby suspended from the practice of law, effective immediately. Pursuant to Admis.Disc.R. 23(10)(f)(4), the suspension shall continue until: 1) the Executive Secretary of the Disciplinary Commission certifies to the Court that he has cooperated with the investigation; 2) the investigation or any related disciplinary proceedings that may arise from the investigation is concluded; or 3) until further order of this Court.

IT IS FURTHER ORDERED that the respondent, Edwin Dean Singleton, pursuant to Admis.Disc.R. 23(10)(f)(5), is to reimburse the Disciplinary Commission $509.30 for the costs of prosecuting this proceeding.

Posted by Marcia Oddi on Friday, January 13, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit posts more opinions this afternoon

In addition to the establishment clause case blogged here earlier today, the 7th Circuit has now posted two criminal law cases, one of them Indiana-based, and a civil suit against the City of Lafayette.

In VanGilder v. City of Lafayette (ND Ind., Judge Sharp), Judge Evans begins his opinion:

One summer night in 2001, Bill VanGilder was among the revelers at the Linwood Tavern, a watering hole in Lafayette (Tippecanoe County), Indiana. After police responded to a reported brawl at the tavern, VanGilder was arrested for public intoxication by officer Brian Baker. VanGilder did not consent to a breath test. Since the Tippecanoe County Jail had a policy of refusing to accept inmates suspected of intoxication until they are seen by a doctor, Baker transported VanGilder to the emergency room of St. Elizabeth’s Hospital.
VanGilder alleges unnecessary force was used by officer Brian Baker in obtaining a blood sample.
In his suit against Baker, VanGilder alleges excessive use of force, an infringement of his civil rights in violation of 42 U.S.C. § 1983. The district court granted Baker’s summary judgment motion because it believed that VanGilder’s claim was barred by Heck v. Humphrey, 512 U.S. 477 (1994). * * * Because the district court erred in its application of Heck, as we will explain, we reverse and remand.
The two criminal law cases are USA v. Robinson (ND Ind., Judge Sharp) and USA v Jordan. Sentencing Law & Policy has already picked these two cases today as notable, so I set out below Prof. Doug Berman's comments from his entry, available here:
* In Robinson, the Seventh Circuit emphasizes its views of a district court's sentencing obligations after Booker, and finds the district court "erred as a matter of law by failing to resolve a disputed sentencing fact essential to a properly calculated guidelines range."

* In Jordan, the Seventh Circuit affirms a "significant upward variance from the advisory guidelines range," after finding that the district court's reasons were "quite compelling to satisfy reasonableness review." Among the important aspects of Jordan is the court's clarification that "there is no presumption of unreasonableness that attaches to a sentence that varies from the range."

A little more from the 7th Circuit's remand "for resentencing consistent with this opinion" to Judge Sharp in Robinson:
Here, the district judge was concerned that because the firing of the gun was not charged, admitted, or found by a jury, he would run afoul of the Sixth Amendment by finding facts. True, Booker holds that judges may not find facts that increase the maximum punishment and that a mandatory sentencing guidelines scheme violates that rule. But Booker resolved the problem by making the guidelines advisory; judicial fact-finding in sentencing is acceptable because the guidelines are now nonbinding. Dean, 414 F.3d at 730; McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005).

In an overabundance of Sixth Amendment caution, the district judge declined to determine whether Robinson fired his gun. By sidestepping this determination, the district judge erred as a matter of law by failing to resolve a disputed sentencing fact essential to a properly calculated guidelines range.

Accordingly, we VACATE Robinson’s sentence and REMAND the case to the district judge for resentencing consistent with this opinion.

Posted by Marcia Oddi on Friday, January 13, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending January 13 2006

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 January 13, 2006. There are 26 Court of Appeals cases listed this week.

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

Posted by Marcia Oddi on Friday, January 13, 2006
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending January 13, 2006

Here is the Indiana Supreme Court's transfer list for the week ending January 13, 2006.

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, January 13, 2006
Posted to Indiana Transfer Lists

Courts - A Fallen Judge Rethinks Crime and Punishment

The NY Times today has a front-page feature story titled "A Fallen Judge Rethinks Crime and Punishment", about a Minnesota Court of Appeals judge sentenced to state prison in 2001 for stealing from a trust under his care. The judge, who is a somewhat sympathetic figure at the beginning of the piece, becomes less so as one reads on. A few quotes from the beginning:

Until 2001, Mr. Amundson, who is 56, was a highly regarded judge who sat on the Minnesota Court of Appeals, the state's second-highest court. Mentioned in legal circles as a likely nominee to the State Supreme Court, he was a popular public speaker, served on charitable boards in Minneapolis, and seemed to know everyone. Colleagues described him as brilliant and charming.

Then he was caught taking $400,000 from a trust fund he oversaw for a woman with the mental capacity of a 3-year-old, money he spent on marble floors and a piano for his house as well as model trains, sculpture and china service for 80, all bought on eBay.

Now, serving the last months of his sentence in a halfway house here, Mr. Amundson is engaged in an uneasy and humbling round of self-reflection, examining the criminal justice system from a rare two-sided perspective while busying himself with a menial vocation: shoveling snow and taking orders to the printer for a sewing machine company he represented long ago as a lawyer.

"Judges can say they have no idea what's going on in prison," Mr. Amundson said from a worn couch in the halfway house. "But if you know what's going on and you are still callous, God help you. If you are part of the system that does the things the system can do, God help you."

Like Sol Wachtler, the former chief judge of the New York State Court of Appeals who pleaded guilty in a harassment case and spent 13 months in federal prison in the early 1990's, Mr. Amundson belongs to a small group of distinguished jurists undone by the laws they had been sworn to uphold, who later came to claim redemption in their undoing.

Posted by Marcia Oddi on Friday, January 13, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides case on standing to challenge an executive-branch program under the establishment clause [Updated]

In Freedom from Religion Foundation v. Choa, DOL, where a 15-page opinion by Judge Posner is followed by a 10-page dissent by Judge Ripple, Judge Posner writes:

The question presented by this appeal is whether a taxpayer can ever have standing under Article III of the Constitution to litigate an alleged violation of the First Amendment’s establishment clause unless Congress has earmarked money for the program or activity that is challenged. The district judge thought not, and would have been correct in his thinking under an earlier view of Article III’s limitation of the federal judicial power to deciding “Cases” and “Controversies.” It was once thought that these terms (which “are, for all intents and Taxpayers have standing to challenge an executive-branch program, alleged to promote religion, that is financed by a congressional appropriation, even if the program was created entirely within the executive branch, as by Presidential executive order. We therefore vacate the judgment and remand the case for a determination of the merits of those claims that we have determined the plaintiffs have standing to litigate. VACATED AND REMANDED, WITH DIRECTIONS.
Judge Ripple:
RIPPLE, Circuit Judge, dissenting. Today, the panel majority holds that executive conduct alleged to have violated the Establishment Clause may be challenged by federal taxpayers so long as that conduct was financed in some manner by a congressional appropriation. Because I do not believe that the applicable Supreme Court precedent permits such a dramatic expansion of current standing doctrine, I respectfully dissent.
[More] This case is the "Decision of the Day" here, at the Decision of the Day blog, under the headline "Challenge to Bush’s Faith-Based Initiative May Proceed."

Posted by Marcia Oddi on Friday, January 13, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues five rulings today

Travis Michael Scott v. State of Indiana - sentencing

In In Re: The Marriage of Katharine A. (Erwin) Seay & David K. Erwin, is a 14-page opinion by Judge Riley concluding "that the trial court abused its discretion in terminating spousal maintenance under this particular set of circumstances." Judge Mathias concurs: Judge Baker enters a 2-page dissent.

City of Fort Wayne v. Utility Center, et al, is a 13-page opinion appealing a ruling of the URC. Affirmed

In Commercial Credit Counseling Services, Inc. v. W.W. Grainger, Inc., Lose Bros., Inc., and XSE Group, Inc., a 17-page opinion, Judge Robb concludes:

The trial courts properly voided CCCS’s purported security interests because it was not established that CCCS held an enforceable interest in the assets of either Performance or Just the Fax. Furthermore, the trial courts properly voided the transfer of funds from Performance and Just the Fax to CCCS as fraudulent transfers under Indiana’s UFTA. Lastly, the findings of contempt against CCCS were not improper. For these reasons, we affirm the trial courts’ separate rulings on the verified petitions for rule to show cause.

In Southtown Properties, Inc., et al v. City of Fort Wayne, et al, a 29-page opinion by Judge Vaidik, the ruling begins with this summary:

Southtown Properties, Inc., Meredith Suites, LLC, and B.V. Belk, Jr. and his successor in interest Eastgate Mall, LLC (collectively, the “Appellants”) appeal from the judgment entered after a jury trial held to determine just compensation for property which the City of Fort Wayne (“City”) took via eminent domain. Specifically, Appellants assert that the trial court abused its discretion by excluding certain evidence from the jury’s consideration. Appellants also appeal the trial court’s pre-trial grant of Allen County’s Verified Request for Payment of 2004 taxes on the property. This case presents two questions of first impression in Indiana: first, whether the value of incentives offered to potential purchasers of property by a condemning authority before a condemnation action is filed is included in the fair market value of the property on the date of condemnation, and second, when the owner of condemned property loses title to that property for purposes of Indiana’s tax statutes.

Finding that the trial court properly excluded evidence of the incentives, we affirm the amount of compensation determined by the jury. Furthermore, because the City’s title to the property in question, for purposes of taxation, relates back to the date of the filing of the condemnation action, October 30, 2003, the Appellants did not hold legal title in fee to the property on March 1, 2004, the assessment date for 2004 property taxes, and we reverse the order for payment and remand to the trial court with instructions to order that Appellants be reimbursed for 2004 property taxes.

Posted by Marcia Oddi on Friday, January 13, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - Lauth sues over Crown Point Plan Commission denial

The last ILB entry on this topic was Jan. 5th, including a quote from the Gary Post-Tribune that began:

CROWN POINT — New zoning laws aimed at keeping big-box retail out of the city apparently hasn’t deterred Lauth Development Group.

The Indianapolis company said Wednesday it still plans to purchase the 50-acre site at Interstate 65 and U.S. 231 for a shopping center. The company’s initial site plans were denied after it was revealed Wal-Mart was being considered as an anchor.

“Lauth Property Group still intends to buy the property ... as such, we will continue to work with the city of Crown Point and Mayor Dan Klein about a mutually beneficial project,” said Joe Downs, Lauth’s vice president of retail development.

Today's Munster (NW Indiana) Times, in a story by Allison Fashek, reports:
CROWN POINT | A developer is seeking judicial review of the Crown Point Plan Commission's denial of approval for its site plan involving retail shops -- and potentially a Wal-Mart -- off Interstate 65.

Lauth Property Group filed a writ of certiorari in Lake Superior Court on Wednesday, 30 days after the Plan Commission voted down the plan called "The Shops at East Point."

Crown Point City Attorney Rich Wolter, who hadn't seen a copy of the filing yet, said Lauth's attorney, Alan Townsend, of Bose McKinney & Evans LLP in Indianapolis, contacted him about it Wednesday.

"We feel that the Plan Commission acted properly and within the law," Wolter said Thursday. * * *

Though Lauth first appeared before the Plan Commission seeking site plan approval in September, members put off voting on the project, citing the city's need to pass I-65 design guidelines and plan a Mississippi Street route.

In the meantime, the city passed an ordinance forcing developers wanting to build retail stores 75,000 square feet and larger in a business district to go to the Board of Zoning Appeals and City Council for a special use. Lauth's plans included two anchor stores, one 203,000 square feet and another 88,400 square feet.

For earlier ILB coverage, type "big box" in the search box in the right column.

Posted by Marcia Oddi on Friday, January 13, 2006
Posted to Indiana Law

Ind. Courts - Applications for Lake County judge post due by March 3

The Munster (NW Indiana) Times reports today:

Lawyers interested in applying for the seat left vacant after the death of Judge James Danikolas have until 4 p.m. March 3, according to a notice filed by the Lake County Judicial Nominating Commission.

Interviews will be March 20 in the Board of Commissioners hearing room in the Government Center in Crown Point.

Applications are available at all offices of the Lake Superior Court clerk. Ten copies of the completed application must be submitted to Ron Layer, secretary of the commission, 1160 Joliet St., Dyer, IN 46311.

After conducting the interviews, the commission will nominate three candidates for judge of the Lake Superior Court, Civil Division 3.

Posted by Marcia Oddi on Friday, January 13, 2006
Posted to Indiana Courts

Ind. Courts - More on: No-holds-barred fight for Lake County Superior Court's elected Hammond judgeship

Updating yesterday's ILB report, here is a story from today's Munster (NW Indiana) Times headlined "Carter not investigating Cantrell court." Some quotes:

HAMMOND | Lake County Prosecutor Bernard A. Carter denied opening an investigation into an alleged fraud scheme in Superior Court Judge Julie Cantrell's court.

Carter said Thursday that he didn't find evidence of criminal wrongdoing in allegations by Superior Court Judge Jesse Villalpando, who is in a political fight with the Cantrell family to win re-election to the bench.

Judge Cantrell denounced Villalpando on Thursday in a written statement.

"Judge Villalpando's vindictive and slanderous attacks about me in the press demonstrate that not every member of the bench is capable of being above common politics," she wrote. "It is a shame that he must go to such lengths to attempt to revive his failing campaign."

Villalpando declined comment Thursday on a report his complaint has sparked a federal, state and county investigation of fraudulent practices in the Cantrell family.

U.S. Attorney Joseph Van Bokkelen declined comment Thursday on whether his office received a copy of Villalpando's complaint or is investigating it.

A report in a local newspaper [that would be the Gary Post-Tribune] said Judge Villalpando alleged Judge Cantrell administered a fraudulent traffic school program for defendants convicted of traffic violations, overcharged those she sent for counseling and failed to report the traffic-school proceeds to the state.

Posted by Marcia Oddi on Friday, January 13, 2006
Posted to Indiana Courts

Ind. Courts - Warrick County Judge Shields Defendant From Cameras

"Warrick County Judge Shields Camm From Cameras" is the headline to this story by James Zambroski from WAVE 3 TV, Louisville. Some quotes:

(BOONVILLE, Ind.) -- The judge and sheriff were at odds Thursday's over new measures being taken supposedly to protect David Camm at the courthouse. And as WAVE 3 Investigator James Zambroski reports, Warrick County may soon implement a new policy preventing suspects from being seen as they're led into court in shackles.

Every morning, Camm is brought from the Warrick County Jail to the courthouse for his trial. He's walked along a hallway lined with plate glass windows, and reporters standing outside have taken his picture countless times.

Until Thursday.

That's when news outlets found brown paper placed over the windows, blocking Camm from view.

Deputies told us it was for security reasons, but their boss, Sheriff Marvin Heilman, knew nothing about it.

"I didn't authorize the paper to be put up last night," Heilman said. "I did tell them to take it down this morning because the decision wasn't made from my office about the security of Mr. Camm."

Sheriff Heilman said he is aware of no specific threat against Camm. "I'm no more concerned about Mr. Camm than I would be about someone coming into the judicial center for a divorce trial."

It turns out that it was Warrick Superior Court Judge Robert Aylsworth who ordered deputies to cover the windows.

Heilman says "the judge had some issues that he expressed to the security staff about seeing the defendant, Mr. Camm, on TV with handcuffs and shackles."

Posted by Marcia Oddi on Friday, January 13, 2006
Posted to Indiana Courts

Thursday, January 12, 2006

Ind. Courts - State of the Judiciary 2006, and a look at past addresses

Here is the transcript of Indiana Chief Justice Randall T. Shepard's State of the Judiciary message, delivered today to the General Assembly.

The Indianapolis Star reports this afternoon:

The Indiana judiciary’s record of court reform has been both behind the times and progressive, Indiana Chief Justice Randall T. Shepard said today.

In an annual State of the Judiciary address entitled, “rarely first, occasionally last, frequently early,” Shepard laid out a hit-and-miss historical record to a joint session of the General Assembly.
He said that more than 100 years ago, Indiana established just the third juvenile court in America and, in the 1980s, was the second state to adopt standards for the qualifications of lawyers who represent defendants in capital cases.

But when the legislature last year required the appointment of someone to represent the interests of every abused or neglected child in court, the state was the last to do so.

[Here is a slightly longer story from the 1/13/06 Star.]

Here is the page listing all of Justice Shepard's State of the Judiciary messages. Last year's was titled "'Good Enough' Is Not Good Enough,'" 2004's was "A Difficult Year that Prompted Reflection." This year's is "Indiana's Place in American Court Reform: Rarely First, Occasionally Last, Frequently Early."

I looked through some of these and found this section from the 2001 address, which was titled "Counsel, Computers, Compensation, and a Few Words About Dimpled Chads." It remains as relevant today as it was five years ago:

Courts and the Information Revolution.

The central mission of the judicial system is finding truth, giving justice in accordance with the law, and seeing to it that people get what they are entitled to. This last part is pretty important, and carrying out the decisions of our juries and judges makes for a lot of paper memorializing the decisions and declaring what should happen next. These papers have power: the suspension of a license, commitment to prison, release from jail, a protective order.

Over the last fifteen years we have made great progress in bringing order to the chaos this mountain of information represents. The documents used by local courts now have standard numbers, standard names, standard formats. Whether it’s the Bureau of Motor Vehicles, or title researchers, or the police, people who rely on court information as a predicate for action now have a better chance than ever of finding what they need to know and understanding what it says.

Indiana’s counties have spent millions bringing this mass of material into the information age. You know what the information age is like, for all of us experience it in everyday life. The credit card with the magnetic stripe. We put it in the gas pump down at the corner, and the machine knows whether it’s OK to give us gas. It charges our account before we even leave the premises. It works defensively as well, for if someone steals my number and starts charging for jewelry in Italy, the machine somehow knows it’s probably not me and a human being calls to ask whether there’s a fraud problem.

For all the money Indiana counties have spent on court records, our world does not work like the credit card industry or even the grocery stores. If a judge in Kokomo suspends the license of a drunk driver who hurts someone, and the police in Anderson stop him the following week because he ran a red light, they’ll check the electronic record, find that his license is still in good standing, hand him a traffic ticket and let him go -- perhaps to the next drunk driving incident. This happens because the order suspending the license frequently does not show up in the computer for several weeks.

If a judge in Indianapolis issues a protective order for a battered spouse and the police in Noblesville find him waiting for her outside a restaurant, they likely have no way of knowing that something harmful may be about to happen. The order probably doesn’t show up in their computer.

All this occurs because there has never been any central coordination of the way local court data is collected, displayed, and conveyed, despite the millions of dollars spent at the local level. We are unable to transmit information effectively and efficiently to the people who need it -- here in state government, or in local government, or law enforcement, or even inside the court system itself.

This cold reality, and its consequences for citizens and for their government, have led us to devise a strategy to correct these problems, under the leadership of Justice Frank Sullivan and a committee known as the Judicial Technology and Automation Committee. This plan is the product of several years of hard work, and we are ready to move.

I’ve talked about this subject by mentioning the bad things that happen because government is not as well organized as the banks, or even an Internet startup, but let me mention the upside of moving ahead: judges will be able to manage their caseload more effectively, reduce the time required for things like sentencing hearings, and thus, as in Evansville, help fight the problem of jail overcrowding. Judges will be able to tell when people who come to court owe money to the state or local government, such as fines or taxes. Charged felons who show up in the courthouse even though they are wanted on outstanding warrants can be identified and taken into custody.

We are ready to make this happen. We very much appreciate the willingness of Governor O’Bannon and the State Budget Committee to recommend that the state make an investment in bringing uniformity and credibility to this situation. And we thank Chairman Bauer and Representative Cochran for including it in the budget bill as introduced.

Whether we can buy gasoline with a credit card is a matter of convenience -- whether the police know to take in a repeat drunk driver or a wife beater is frequently a matter of life or death.

This is something that needs serious fixing. Borrowing a famous phrase, my request is this: “Give us the tools, and we will finish the job.”

Posted by Marcia Oddi on Thursday, January 12, 2006
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In George Sanders v. State, Justice Sullivan writes:

Defendant George Sanders wrote a letter of confession that was used against him at his trial for child molesting. The letter he wrote contained a reference to the fact that the victim had been molested previously but this reference was redacted when the letter was presented to the jury. The Court of Appeals held that the redacted material was necessary for the jury to understand the letter’s context. But we find that the letter as used did not present the letter out of context in a way that misled the jury. * * *

At trial, the State admitted over Sanders’s objection a version of this letter that was redacted. In the redacted version of the letter, the following language was omitted from the fifth paragraph: “and that she had been molested by her father and her mother’s boy friend.”1 App. at 428. The jury found Sanders guilty as charged, and the trial court sentenced him to 30 years for Class A child molesting. On appeal, Sanders argued, among other things, that the trial court erred in admitting the redacted version of his letter.[2] Finding that the trial court abused its discretion in admitting into evidence the redacted version of the letter and that it had an unduly prejudicial effect on the jury, the Court of Appeals reversed Sanders’s convictions. Sanders v. State, 823 N.E.2d 313, 319 (Ind. Ct. App. 2005). The State petitioned to, and we granted, transfer. 2005 Ind. LEXIS 443 (Ind. May 12, 2005). * * *

We summarily affirm the Court of Appeals only as to the issue discussed in Footnote 2 and affirm the trial court. * * *
_____
[2] Sanders also argued that the trial court erred in denying the admission of evidence pertaining to J.R.’s mental history. The Court of Appeals found that the trial court did not abuse its discretion in excluding this evidence, Sanders v. State, 823 N.E.2d 313, 319 (Ind. Ct. App. 2005), and we summarily affirm the Court of Appeals on this issue. Ind. Appellate Rule 58(A).

Posted by Marcia Oddi on Thursday, January 12, 2006
Posted to Ind. Sup.Ct. Decisions

Environment - A Future Legal Battleground: Environmental Regulation

"A Future Legal Battleground: Environmental Regulation" was the subject of a story today on NPR's Morning Edition. The focus was federalism and the commerce clause as applied to the federal environmental laws. Listen to it here.

Posted by Marcia Oddi on Thursday, January 12, 2006
Posted to Environment

Ind. Decisions - Court of Appeals issues two decisions today

The Court of Appeals has issued opinions today in:

David Castner v. State of Indiana

Jason Ronco v. State of Indiana

Both involved at least partial reversals. Perhaps more later.

Posted by Marcia Oddi on Thursday, January 12, 2006
Posted to Ind. App.Ct. Decisions

Law - "What limits on eminent domain? Norwood [Ohio] case is key national test"

"What limits on eminent domain? Norwood case is key national test" is the headline to a story today in the Cincinnati Enquirer about an oral argument heard yesterday before the Ohio Supreme Court. Here is the beginning of the interesting report:

COLUMBUS - The Ohio Supreme Court heard arguments Wednesday on whether it was legal for Norwood to seize two homes and a business for economic development. It's the first test nationwide of last year's landmark U.S. Supreme Court ruling on property rights.

Justices focused on Norwood's definition of eminent domain that it argues allowed it to take "deteriorating" property. State law typically protects neighborhoods unless they are deemed "blighted."

Attorney Dana Berliner of the Institute for Justice, which is representing three property owners, said that by Norwood's definition, communities across Ohio could be condemned if they have mixed zoning, dead-end streets or heavy traffic.

"The issue is whether a city can condemn for so-called deteriorating conditions which are common throughout the state," she said. "The city of Norwood is asking this court to completely tip the scales. ... There is a huge difference between blighted areas and so-called deteriorating areas."

Chief Justice Thomas J. Moyer asked why a city should wait until a neighborhood becomes blighted to do something about it.

"The area didn't meet the blighted standard," Berliner replied. "There has to be something more than a belief it is going in the wrong direction."

Don't miss the sidebars to the story.

Posted by Marcia Oddi on Thursday, January 12, 2006
Posted to General Law Related

Environment - Administrative hearing on Pines transfer station set for Jan. 19th

"Lawyers to argue for stay against waste station" is the headline to a story today in the Munster (NW Indiana) Times. Some quotes:

Lawyers for two counties and two towns on Jan. 19 will ask a state administrative judge to issue a stay against a waste transfer station near The Pines, claiming its building permit is expired and that the facility will be a health hazard.

LaPorte County was the last to join the petitions against Great Lakes LLC's transfer station and County Attorney Shaw Friedman said he plans to open new fronts in the appeal of the Indiana Department of Environmental Management's decision to grant the permit. * * *

The appeal will be stronger because of LaPorte County's involvement since the transfer station property is inside its border, said Porter County Attorney Gwenn Rinkenberger.

The state Office of Environmental Adjudication, an administrative law court that reviews IDEM decisions, requires that petitioners say how they are affected by the decision. * * *

The administrative law judge can issue a stay on Jan. 19 preventing Great Lakes from building and operating the facility until the lawyers present their full cases in August.

For background, tytpe "pines transfer station" in the search box in the right column.

Posted by Marcia Oddi on Thursday, January 12, 2006
Posted to Environment

Ind. Courts - No-holds-barred fight for Lake County Superior Court's elected Hammond judgeship

"Storm watch out for judge's race" was the headline to this 12/4/05 Mark Kiesling column in the Munster (NW Indiana) Times. It begins:

If you want a primer in how Lake County politics is played, keep an eye on the race for the Superior Court's elected Hammond judgeship.

In the first place, the only judge the division has ever known is Jesse Villalpando, who tried several times to be appointed a judge in other divisions but was unsuccessful.

So, as a state legislator, he helped author a bill to create a new Lake County judgeship, then (surprise!) became the only applicant for the job. If you can't come in the front door, try the back door.

Now, six years later, Villalpando is finding himself challenged by former East Chicago City Judge Ed Fontanez and Merrillville attorney Stan Jablonski, a veteran private defense lawyer and a public defender who now practices before Superior Court Judge Julie Cantrell.

Julie is the daughter of political powerhouse Bobby Cantrell, and Villalpando is crying foul because he believes Bob Cantrell is using both Fontanez and Jablonski to unseat him for personal reasons.

Those personal reasons would all have Benjamin Franklin printed on them. Villalpando has refused since the summer to send alcohol and drug defendants to Addiction and Family Care, a licensed counseling service for which Bob Cantrell has worked as a well-paid "consultant."

The story continues today, with this Gary Post-Tribune story by John Byrne headlined "Villalpando accuses Cantrell of fraud scheme." Some quotes:
Federal, state and county officials have opened investigations into allegations by Lake Superior Court Judge Jesse Villalpando that Judge Julie Cantrell has engaged in widespread, systematic malfeasance during the past several years on the bench.

Villalpando, facing a re-election fight from two candidates connected to Cantrell and her father, political powerbroker Robert Cantrell, also contends in roughly 1,000 pages of correspondence and supporting documentation that the Cantrell family attempted to enlist him to participate in fraudulent money-making schemes through his court.

The documents, obtained by the Post-Tribune, comprise the bulk of an ongoing series of complaints Villalpando has filed with the state Commission on Judicial Qualifications requesting investigations into Judge Cantrell’s behavior on the bench.

Lake County Prosecutor Bernard Carter and U.S. Attorney Joseph Van Bokkelen also apparently have been reviewing the documents during the past several months.

The papers detail various money-making schemes Villalpando contends Judge Cantrell has participated in at least since 2001. * * *

The reports Villalpando sent to state Judicial Commission attorney Meg Babcock and others further detail various ways in which Villalpando says Judge Cantrell allegedly gave preferential treatment to friends and family members who appeared in her courtroom.

Babcock declined to comment about whether the organization, which has the authority to discipline judges, is investigating any claims involving Cantrell. But people with knowledge of the county court system say the Judicial Commission notified Judge Cantrell in early autumn that it was looking into Villalpando’s claims.

Villalpando contends he resisted attempts to include his court in these and other questionable activities, so Robert Cantrell targeted him for removal from the bench in the 2006 election.

See also this Nov. 6, 2005 ILB entry, titled "Lake County judicial election; election vs. retention at the local level."

Posted by Marcia Oddi on Thursday, January 12, 2006
Posted to Indiana Courts

Ind. Law - "Don't change it; end it" opines Evansville C&P on legislators' lifetime health insurance perk

The Evansville Courier& Press has an editorial today titled "Don't change it; end it." Some quotes:

While serving in the Indiana Legislature requires time away from home, and presumably from job as well, it is a part-time venture. That's why we call them citizen legislators. The members are not considered full-time professionals. * * *

It is challenging work, but it has its rewards. The question now is whether the reward of lifetime health insurance, subsidized by taxpayers, should be extended once a lawmaker's service has ended. The issue came up three years ago when the rest of Indiana realized that in 2001 leaders had extended health insurance to former legislators, their spouses and some staff members who had served six years and one day and who had left after Dec. 31, 2000.

And now it has come up again. If state Rep. Troy Woodruff, R-Vincennes, has his way, the perk will end. He campaigned on the issue, calling it a "luxurious perk," and he has now introduced a bill to get rid of it. He did the same last year, but his measure failed to gain a hearing. The new bill also may be doomed, reports Jennifer Whitson of the Courier & Press Indianapolis bureau.

But a change in national accounting standards promises to shed new light on what this perk is likely to cost Indiana taxpayers. The change requires that states publicly estimate the cost of unfunded perks on their books by 2008. In response, state auditor Connie Nass put out a bid for a study to determine what the benefit will cost taxpayers, but the Indiana State Budget Agency blocked it. * * *

Woodruff has the right idea. Instead of all this hemming and hawing about actuarial studies and possible changes, end the coverage. The state struggles with debt, property owners are warned about coming tax increases, and not all of them can even afford their own health insurance. They should not be expected to help former citizen legislators pay for their health insurance.

For background, start with this ILB entry from earlier today, on an editorial from the Lafayette Journal & Courier.

Posted by Marcia Oddi on Thursday, January 12, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Courts - Drop in civil trials in Kentucky county attributed to mediation

The Louisville Courier Journal has a story today by Jason Riley headlined "Fewer civil lawsuits reach trial in Jefferson." It begins:

When Jefferson Circuit Judge Thomas Wine took the bench in 1992, most of his jury trials were from civil lawsuits.

Last year, criminal trials in his court outnumbered civil cases three to one.

"That's the biggest discrepancy I've ever had," Wine said.

And he's not alone.

In the past five years, the number of civil complaints filed in Jefferson County has risen more than 30 percent, surpassing 11,000 annually.

But fewer and fewer of those cases are reaching a jury.

The number of civil jury trials has been cut almost in half since 2000, dropping to 112 last year, according to the Jefferson Circuit Court administrator.

Although the number of criminal jury trials also has decreased, the decline has been smaller, with the number falling from 148 to 113 last year.

Court officials cite several reasons for the decline, including the fact that judges are dismissing more inactive cases to get a handle on rising caseloads.

But a major reason, they say, is the rising popularity of mediation in civil cases, a cheaper and quicker option that lets the parties come to terms with a mediator's help -- and without a judge or jury.

Posted by Marcia Oddi on Thursday, January 12, 2006
Posted to Indiana Courts

Ind. Courts - Indiana Chief Justice Randall T. Shepard to give his annual State of the Judiciary address today

The Indianapolis Star reports today:

Indiana Chief Justice Randall T. Shepard will give his annual State of the Judiciary address to a joint session of the Indiana General Assembly at 1:30 p.m. today. Shepard is expected to discuss the court's projects, accomplishments and plans for the future.

People may watch a live webcast of the speech by going [here] and clicking on "Watch video from the House."
After the speech, click here to view or to read the full text.

Posted by Marcia Oddi on Thursday, January 12, 2006
Posted to Indiana Courts

Ind. Law - "A free, lifetime perk that has to come to an end"

"A free, lifetime perk that has to come to an end" is the headline to an editorial today in the Lafayette Journal & Courier. Some quotes:

The consciences of lawmakers willing to push free health insurance through as a last-minute provision five years ago are finally starting to kick in.

The hemming and hawing by lawmakers over fresh concerns about how much free, lifetime health insurance will eventually cost the state should tell you all you need to know about a most generous benefit.

Lawmakers are embarrassed by the conversation because they know they're finally paying a public relations price -- not to mention a fiscal one -- on a perk that never should have seen the light of day.

In 2001, top budget negotiators in the Indiana House and Senate quietly plugged in the lifetime health benefit for lawmakers, their spouses and some staff members who had served at least six years. As the benefit was uncovered days after the session was done, outrage was met with what's-done-is-done indifference from those who engineered it.

Last year, an Indianapolis Star report estimated that the two dozen or so former lawmakers who had already tapped into the insurance plan were saving between $3,300 and $12,800 a year just on annual premiums when compared to the coverage offered rank-and-file state retirees.

No wonder lawmakers hesitate to give it up. Last year, a bill that would have eliminated the benefit died without a committee hearing at the Statehouse. Promises to scale it back never came true. And this year, as reports float around about how the benefit could leave the state budget tens of millions of dollars in the hole, lawmakers are promising to tweak it -- but not much.

"You have expectations and you live up to them," said Senate President Robert Garton, one of the 2001 budget architects, told the Evansville Courier & Press. "We don't intend to break trust. In fact, we won't break trust."

How about the trust with the public and its money, senator?

Those fat benefits need to be trimmed down to a portion Hoosiers can comprehend, let alone pay for.

For background, start with this ILB entry from Jan. 11, 2006.

Posted by Marcia Oddi on Thursday, January 12, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Wednesday, January 11, 2006

Ind. Law - Small wineries in Illinois buffeted by the alcohol-distribution lobby; What is happening in Indiana?

"Wineries fight for right to ship" is the headline to a story today in the St. Louis Post-Dispatch. Some quotes from the beginning of the lengthy report:

SPRINGFIELD, ILL. Illinois' powerful alcohol-distribution lobby is using its clout and money in an attempt to bottle up the state's tiny wine industry with new restrictions on mail or Internet sales, the wineries allege.

They warn that the proposed restrictions could ultimately mean fewer choices for the state's wine drinkers - especially connoisseurs of small-town labels out of Southern Illinois.

A U.S. Supreme Court ruling last year decreed that states cannot set up different rules on mail-order sales for in-state and out-of-state wineries. That means Illinois either has to restrict all in-state mail-order wine, or drop its restrictions on out-of-state mail-order wine (and, by implication, all other alcohol).

Pending legislation, backed by wholesalers who supply alcohol to Illinois liquor retailers, would lump in-state wineries with out-of-state, and put restrictions on both in selling directly to customers over the Internet and by mail.

The distributors argue that such direct-sale alcohol can too easily fall into the hands of kids.

But the wineries claim the wholesalers' real problem with the direct-market trend is that it cuts out the middleman - them.

While the direct-mail market is relatively tiny compared with traditional liquor store sales, "It's really big for the small mom-and-pop winery in the state of Illinois," said Richard Faltz, president of Fox Valley Winery in Oswego, Ill., southwest of Chicago.

"The vast majority of Illinois wineries are too small to get the attention of the distributors. They don't make enough wine," Faltz said. "So if they can't sell their wine to their wine club members . . . they're out of busines."

What is going on in Indiana? The ILB's last reports were Dec. 16, 2005 and Nov. 29th, 2005. Included in the November entry is a quote from the Indianapolis Star that begins: "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."

A Dec. 10th article in the Fort Wayne Journal Gazette by Dan and Krista Stockman has good coverage of the anticipated legislation and issues in the upcoming session. Here is the beginning:

Until March, at least, you can order wine from your favorite Hoosier winery and have it shipped to your home. But you still can’t have wine shipped to your house from your favorite California or New York or Illinois winery. That issue should have been resolved in May by a U.S. Supreme Court ruling, which said states must treat in-state and out-of-state wineries equally in regards to shipping, but in Indiana the ruling only made things hairier.

Hopefully, that will all change when the General Assembly reconvenes next month. At least two bills addressing the issue of who wineries can sell to are expected to be introduced. One will be favored by the wineries, while the wholesalers will like the other one.

Rep. Eric Koch, R-Bedford, has been working with winemakers, having three in his southern Indiana district. Work on his bill – still being written – began shortly after the Supreme Court ruling when the Indiana Alcohol and Tobacco Commission issued a notice that Indiana wineries are not allowed to ship within the state – a practice that had been going on for 30 years.

Koch said his legislation, which will be introduced in the Senate by Sen. Brent Steele, R-Bedford, simply restores the practice the state allowed for decades. “It would allow a farm winery to ship or sell wine directly to Indiana residents for personal use,” he said. There would be limits on how much a winery could ship to each customer and taxes would have to be collected on the sales, Koch said.

Proposed 2006 legislation. A number of wine bills have been introduced; here is a list.

Posted by Marcia Oddi on Wednesday, January 11, 2006
Posted to General Law Related

Environment - What you need to know for recycling electronics in Indiana

Via a press release today from e.Scrap:

Today, the Indiana Recycling Coalition (IRC) announces the kick-off of a statewide campaign to let Hoosiers know that electronic devices contain hazardous materials, such as lead and mercury, and should not be thrown in the trash. Instead, the IRC provides many resources for reusing and recycling electronics when they are no longer needed through a new e.Scrap education campaign and informational website, www.eScrapIndiana.org.

“The campaign is designed to grab attention and drive people to the Indiana Recycling Coalition’s new website dedicated solely to the issue of electronic scrap, also called e.Scrap,” said IRC’s Executive Director, Michelle Cohen. Cohen continued, “Once at the website, a business person, homeowner, or anyone can find more information about the hazards that electronic devices contain, how to properly manage these materials, what laws apply, and even how to buy ‘greener’ devices in the future.” The website is a one-stop-shop for all information about proper management of electronics.

Posted by Marcia Oddi on Wednesday, January 11, 2006
Posted to Environment

Ind. Decisions - 7th Circuit affirms ban against woman distributing religious material on Milwaukee city bus

In Anderson, Gail v Milwaukee County Transport, Judge Evans writes:

In this case, filed pursuant to 42 U.S.C. § 1983, Gail Anderson alleges that Milwaukee County and Milwaukee Transport Services, Inc., the operator of the Milwaukee County bus system, violated her First and Fourteenth Amendment rights by their “tariff,” which prohibits the distribution of literature on county buses. Ms. Anderson, a woman in her mid-fifties, lives in Milwaukee. She doesn’t drive a car and so is a regular customer on Milwaukee’s buses. But she is not, it would appear, your typical bus rider. As anyone who rides buses in urban communities knows, most passengers mind their own business. Most avoid conversation, and many even avoid eye-contact, with other passengers. Not Ms. Anderson. She (here, of course, we take her allegations as true) has a “sincerely held religious belief” and a wish to “share her faith with those sitting next to her on the bus by talking to them and giving them religious literature.” She also wants to give her literature to other passengers who pass by her seat on the bus. It’s unclear just how long, and how often, she has followed her urge to share her views with other riders. * * *

[At some point security officers] explained to her that the Transit System had a rule against distributing literature on buses. They asked her whether she wanted to board the next bus to continue her trip. Being within six blocks of her home, she decided to walk. * * *

Tariff 116 says “No person furnished transportation under fares named in this tariff shall be permitted to enter or remain in the system’s buses: (a) For purpose of distributing any form of advertising or literature.” * * *

In a nonpublic forum, the government may restrict speech to a greater extent than in a public or designated public forum. Restrictions must be viewpoint-neutral and reasonable. In other words, restrictions need only pass the test of reasonableness so long as they are not an attempt to stifle a viewpoint based on its content. Int’l Soc’y for Krishna Consciousness, Inc. v. Lee at 683. A restriction does not need to be “the most reasonable or the only reasonable limitation”; it does not need to be narrowly tailored; nor does the governmental interest need to be compelling. Cornelius at 808-809. In fact, simple common sense is sufficient to uphold a regulation under reasonableness review. United States v. Kokinda, 497 U.S. 720, 734 (1990). Using this approach, the Court has found reasonable, for instance, a ban on soliciting in an airport terminal, Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, and a restriction on political advertising on public transit. Lehman v. City of Shaker Heights. See also Children of the Rosary v. City of Phoenix, 154 F.3d 972 (9th Cir. 1998). In Chicago Acorn v. Metropolitan Pier and Exposition Authority, 150 F.3d 695, 704 (7th Cir. 1998), we found that leafleting should not be permitted in places where “pedestrian traffic will be obstructed.” See also Hawkins v. City and County of Denver, 170 F.3d 1281 (10th Cir. 1999).

Here, the restriction is clearly reasonable. Bus passengers are a captive audience. While riding on the bus, many passengers have an interest in avoiding unwelcome communications. It is reasonable for the bus company to attempt to ensure their comfort. In Lehman, the Court concluded that a city was entitled to protect unwilling viewers against intrusive advertising on its buses in order to provide rapid, convenient, pleasant, and inexpensive public transportation for them. It is also reasonable to wish to avoid disagreements among passengers which the distribution of literature might inspire. Furthermore, the bus company has an interest in passenger safety. The company expresses concern that a driver could be distracted by literature distribution and that abandoned literature can cause a safety hazard and certainly a littering problem. Given the nature of the forum, a ban on the distribution of literature on buses passes constitutional muster.

This case was voted "Best of the Rest" here on Decision of the Day.

Posted by Marcia Oddi on Wednesday, January 11, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Senate panel OKs telecom bill

"Senate panel OKs telecom bill" is the headline to two different stories today: Niki Kelly's story in the Fort Wayne Journal Gazette, and Lesley Stedman Weidenbener's report in the Louisville Courier Journal.

From the Journal-Gazette:

Competing claims of price gouging and improved service choice took center stage Tuesday when a Senate panel spent five hours discussing telecommunications overhaul, eventually approving the bill 8-2.

During the vote, one senator criticized Fort Wayne Republican Sen. Tom Wyss for turning away 19 people who had shown up to speak on the issue and rushing the bill through the committee process. “This is really heavy stuff,” said Sen. Beverly Gard, R-Greenfield.

Wyss chairs the Senate Homeland Security, Utilities and Public Policy Committee and defended himself by pointing out he limited testimony from both sides.
During the lengthy hearing, he noted several times that the shortness of the session required him to get the legislation out of committee quickly instead of letting committee members work on issues that concerned them.

Gov. Mitch Daniels is supporting Senate Bill 245, which now goes to the full Senate for amendment.

From the Courier-Journal's report:
A Senate committee approved a controversial and complex bill yesterday that essentially will deregulate local phone service and let the marketplace dictate rates.

Consumer advocates warned that Senate Bill 245 will mean higher prices for customers, especially in poor and rural areas, and urged lawmakers either to kill it or to make significant changes.

But the bill's author, Sen. Brandt Hershman, R-Wheatfield, and other proponents told the committee that antiquated regulation has stifled innovation and investment in technology in Indiana and that removing it would eventually result in more competition, additional services and, in some areas, lower prices.

"It is an indisputable fact, no matter what industry you're in, that more competition makes prices go down," Hershman said. "This bill will make Indiana a leader in telecommunications policy."

The Homeland Security, Utilities, and Public Policy Committee voted 8-2 to send the bill to the full Senate for consideration.

Votes for the bill came from members of both parties representing both urban and rural areas.

The two votes against it came from Republican senators who said they have supported telecommunications efforts in the past but couldn't do so yesterday because of the haste with which the committee was working.

Chairman Tom Wyss, R-Fort Wayne, insisted that the bill be voted out immediately, even though 19 people -- including some for and against the legislation -- did not get to testify. He limited the time for testimony from both sides during yesterday's hearing, which lasted more than five hours.

Sen. Beverly Gard, R-Greenfield, said the committee needed to take more time. "This is really heavy stuff," she said. "Is this the way we want to do business in the Senate? I hope not."

Wyss said the issue has been debated for years and most of the senators had heard the arguments before. But he acknowledged that the bill includes a new proposal: the creation of a state approval process for cable companies that want to provide service in Indiana, eliminating the need for them to negotiate with individual communities. * * *

He said he was "a little bit taken aback and ashamed" that a committee member would criticize his handling of the issue.

But Julia Vaughn, policy director of Common Cause Indiana, said she was "very disappointed" that she and other opponents didn't get to testify. Vaughn said she told Wyss to give her time to others when it became obvious that some would be cut out.

Posted by Marcia Oddi on Wednesday, January 11, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - A bill to end legislative branch health perks appears doomed; budget agency refuses to approve acturial study of costs of perks

Jennifer Whitson has a lengthy story in today's the Evansville Courier & Press, headlined "Lawmakers' insurance perk under fire." Some quotes:

Legislative leaders are considering changes to a lifetime subsidized health insurance perk for lawmakers, but a bill that would end the program appears doomed.

In 2001, then-Speaker John Gregg and President Pro Tem Robert Garton, R-Columbus, added a benefit for lawmakers, spouses and some staff who have served at least six years and one day on the job to be able to lock in their state-funded health insurance plan for life.

So if, for example, a lawmakers retires after serving eight years, he can sign up for the state health insurance plan and lock in the current employee rate of contribution for monthly premiums for life.

As health care costs go up, those premiums would not. And the retired lawmaker would never lose that insurance.

In 2004, a handful of Republicans, including Troy Woodruff of Vincennes, ran against Democrat incumbents decrying the benefit as a luxurious perk. In 2005, Woodruff filed a bill to eliminate the perk. The bill never got a hearing.

Now, a change in national accounting standards is forcing states to publicly estimate the cost of these unfunded perks in their books by 2008. State Auditor Connie Nass put out a bid to get an actuarial study done on what this lifetime health insurance perk could cost taxpayers in future years.

Nass chose a bidder and drew up a contract, but the Indiana State Budget Agency announced Tuesday that they would not sign off on the study.

More from the story:
Woodruff on Tuesday again filed his bill to get rid of the benefit. House Speaker Brian Bosma, R-Indianapolis, said he's sending the bill to the House Rules Committee again.

Members of the Indiana Senate and House, under a convoluted series of provisions tucked in several bills stretched over years, became employees of the Senate president pro tem and Indiana House speaker. As speaker, Bosma could administratively eliminate the perk immediately, but the provision in the law that gives him the power to offer the perk would still exist. Bosma said he's reviewing changes now to the benefit.

"I haven't announced those (changes) yet," Bosma said. "But I will be announcing them in the near future." * * *

Woodruff said that any proposal to change the perk without eliminating it all together, including revoking it for the 25 people who are currently enjoying it, wouldn't be enough. "Anything other than zero (getting rid of it completely) is still egregious," he said.

In the Senate, Garton said he's also reviewing changes to the benefit. "Will we do them? I'm not promising," Garton said. "My presumption is we will." But he said changes will not "betray anyone's faith and confidence." "You have expectations and you live up to them," Garton said. "We don't intend to break trust. In fact, we won't break trust."

He said the Senate has gotten an actuarial study on the potential future costs of the benefit but declined to share the results. Asked whether he will face pressure to change the benefit for senators if Bosma does that in the House, Garton said: "Only in terms of the reaction from the general public."

See this entry from yesterday, Jan. 10th, 2006 (or scroll down one), for more, plus an index to all previous ILB entries on this topic.

Posted by Marcia Oddi on Wednesday, January 11, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Tuesday, January 10, 2006

Ind. Gov't. - Latest on: Secrets of health care pact for legislators and staff may be revealed; plus recap/index to earlier entries

"Bright takes issue with health insurance plan for legislators" is the headline to this story posted Monday afternoon on The Madison Courier website. Some quotes:

State Rep. Billy Bright is publicly questioning a 2001 law that gives many legislators nearly free health insurance for the rest of their lives.

Any legislator who is in office for three two-year terms plus one day pays only 6 percent of the cost of the lifetime health insurance coverage, which also covers his or her spouse, children and ex-spouses. Taxpayers pay 94 percent of the cost.

“This was drafted under the cloak of darkness and trickery,” Bright, R-North Vernon, said Sunday. “This was passed under a cloak of darkness. Both sides (Republicans and Democrats) joined forces and promised to not make it a campaign issue.”

The cost will increase over time, he said.

“Can you imagine what our children and grandchildren will pay 20 years down the road?” Bright asked. “Millions, billions, who knows.”

Bright said Indiana legislators are the only group in the world who do not need to apply for Medicare.

“No other state has this plan,” Bright said.

Bright is critical of this topic because in his freshmen year of the General Assembly last year, he witnessed an economic overhaul that slashed state jobs and benefits for Hoosiers.

“Why do we ask our state employees to give up more?” Bright said.

A glaring statistic that Bright said bothers him is the number of Indiana residents — 40 percent — who cannot afford health care insurance.

Bright said he believes senators and representatives who leave the General Assembly after their terms are up or who don’t get re-elected should get jobs and get on their employers’ insurance plans. This, however, does not happen, he said.

“The only option for the state is to pay zero,” Bright said.

When Bright crunches the numbers and continues the research of 2001, he is more horrified by the law.

“The only worse thing they (legislators) could do is hold up a liquor store,” Bright said.

Gary R. Welsh in his blog, Advance Indiana, is reporting this evening that:
Rep. Troy Woodruff (R-Vincennes) has introduced legislation to repeal the "health insurance for life benefit" lawmakers secretly enacted five years ago. HB 1309 provides that the Speaker of the House and the President Pro Tem "may not elect to pay any part of the premium for insurance coverage with respect to a former member of the general assembly or the spouse of a former member of the general assembly" after December 31, 2006.
The Decatur Daily Democrat today is carrying the opinion piece by Brian Howey, "Free lifetime health insurance for legislators?" previously referenced in this Jan. 6th ILB entry, which it appeared in Howey's Politcal Report Online.

Index to Earlier Entries. Here are links to the ILB entries on this topic:

Sept. 5, 2004: "Compensation of General Assembly members." Includes this quote from an Indianapolis Star editorial of that date:

The General Assembly this year passed a bill making details of individual legislators' pensions secret. Only four lawmakers voted against the measure. State Rep. Tom Saunders, R-Lewisville, was one of them. He says: "If I'm generating revenue from the taxpayers, they need to know how much."

Most of his colleagues, however, don't agree. Perhaps it's arrogance. Or frustration with the flak they receive for proposing pay raises. But the legislature has taken the tack that the best way to deal with compensation is by granting themselves sweet deals without public consultation.

Take for instance then-Gov. Frank O'Bannon's veto of legislation that would have given health benefits to former legislators who served a mere six years in office.

In response, Senate President Pro Tempore Robert Garton and then-Speaker John Gregg invoked a 2001 law and signed off on funding the perk from the general fund. Forget the budget deficit. And forget the fact that ordinary state employees' salaries haven't kept up with inflation. Lawmakers took care of their own desires.

March 14, 2005. "Prerogatives of legislators and their staffs." This entry begins:
Kevin Corcoran of the Indianapolis Star has a lengthy and important story today on some of the special benefits the General Assembly has voted for itself and its staffers. The story is headlined: "Bosma: Now not time to end costly health plan."
Most recently, the ILB has posted four entries, all but one titled "Secrets of health care pact for legislators and staff may be revealed," beginning with:

Posted by Marcia Oddi on Tuesday, January 10, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Decisions - 7th Circuit posts two interesting opinions today

The 7th Circuit has decided two interesting civil cases today, neither of them directly relate to Indiana.

In 520 South Michigan Avenue Associates v. Devine, Judge Easterbrook writes:

For many years it has been a crime in Illinois to employ a “professional strikebreaker.” 820 ILCS 30/2. (A “professional strikebreaker” is anyone who repeatedly works during strikes. 820 ILCS 30/1(c). One need not be a goon to fit the definition.) In 2003 the state extended the prohibition to acquisition of strike-breaking labor from any “day or professional labor service agency”. * * *

Under federal labor law, just as workers are free to withhold their labor, so employers are free to hire either temporary (see NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345 (1938)) or permanent (NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967)) replacements—though employers can’t give them superseniority, compare NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963), with Trans World Airlines, Inc. v. Flight Attendants, 489 U.S. 426 (1989). The state’s effort to make the hiring of replacement workers a crime is so starkly incompatible with federal labor law, which prevails under the Constitution’s Supremacy Clause, that we do not understand how a responsible state legislature could pass, a responsible Governor sign, or any responsible state official contemplate enforcing, such legislation. States are entitled to protect replacement workers against fraud, see Belknap, Inc. v. Hale, 463 U.S. 491 (1983), but the Strikebreakers Act does not do this; it is written as a substantive limit on the employer’s use of a particular economic tactic. Unless there is some way to support this law that state officials have yet to suggest—either in Caterpillar or in this litigation—a declaratory judgment should be issued with dispatch.

The judgment is reversed, and the case is remanded for decision on the merits.

In ConFold Pacific v. Polaris Industries, a 15-page opinion, Judge Posner concludes:
In an effort to keep this concept of unfair competition or misappropriation—this bequest by the Supreme Court to a number of states—within reasonable limits, the Second Circuit, in an influential opinion interpreting New York law, stated the elements of the tort as follows: “(i) the plaintiff generates or collects information at some cost or expense; (ii) the value of the information is highly timesensitive; (iii) the defendant’s use of the information constitutes free-riding on the plaintiff’s costly efforts to generate or collect it; (iv) the defendant’s use of the information is in direct competition with a product or service offered by the plaintiff; (v) the ability of other parties to freeride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality could be substantially threatened.” National Basketball Association v. Motorola, Inc., 105 F.3d 841, 852 (2d Cir. 1997) (citations omitted). ConFold has made no effort to establish these elements. Its misappropriation claim comes down to a claim of infringement of a design that it did not patent. Such a claim is preempted by patent law, as held by the Supreme Court in the Bonito case cited earlier. See also Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231-32 (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 239 (1964). The broader, INS-type claim probably is not preempted, see Bonito Boats, Inc. v. Thunder Craft Boats, Inc., supra, 489 U.S. at 154, but, as we have just noted, its elements have not been proved.

Posted by Marcia Oddi on Tuesday, January 10, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals posts two criminal rulings

In Thomas Tracy v. State of Indiana, Judge Vaidik writes:

We grant rehearing in this case for the limited purpose of clarifying our original opinion in light of the Indiana Supreme Court’s recent opinion in Kincaid v. State, 837 N.E.2d 1008 (Ind. 2005). In all other respects, we affirm our original opinion. * * *

Tracy filed his initial brief on May 23, 2005. And in his brief, Tracy made a specific Blakely claim. Pursuant to Kincaid, Tracy did not forfeit his Blakely claim and is entitled to have it reviewed on the merits. Although we held in our original opinion that Tracy forfeited his Blakely claim, we went on to address the merits and concluded that the trial court did not err in enhancing his sentences based on his prior felony convictions. Subject to the clarification that Tracy did not forfeit his Blakely claim, we affirm our original opinion in all other respects.

In David Wayne Mills v. State of Indiana Judge Sharpnack concludes:
In summary, we conclude that Mills was on parole from the burglary sentence at the time that he committed several violations. The trial court properly denied Mills’s petition for writ of habeas corpus. See, e.g., Hannis, 816 N.E.2d at 880 (holding that the trial court properly denied the petition for writ of habeas corpus); Parker, 822 N.E.2d at 288 (holding that the trial court properly denied the petition for writ of habeas corpus). For the foregoing reasons, we affirm the trial court’s denial of Mills’s petition for writ of habeas corpus.

Posted by Marcia Oddi on Tuesday, January 10, 2006
Posted to Ind. App.Ct. Decisions

Law - Online Federal Docket Management System endangered

Cindy Skrzycki of the Washington Post, writes in her The Regulators column that:

Since 2003, the Bush administration has been working on rolling out this kind of electronic docket, called the Federal Docket Management System . The http://www.regulations.gov Web site is designed to eventually house the documents of some 150 federal agencies. So far, about 15,000 documents have been posted.

The e-rulemaking initiative began with a simple portal on the Internet that allowed anyone to read and comment on proposed rules. Last fall, the system was enhanced to allow electronic retrieving and viewing of all the regulatory proceedings of some 30 agencies, a step that was viewed as having the potential to revolutionize a rulemaking process traditionally dominated by special interests. * * *

The goal was to complete the project in 2005. But Congress has been complaining about the funding mechanism, and the completion date has been pushed back to 2007.

After squabbling with the Office of Management and Budget for several years, a House Appropriations subcommittee with jurisdiction over the White House office shut off the spigot. It said in a report that the OMB couldn't require agencies to contribute toward building the Web site until it submitted an "operating plan" detailing the funding for some 24 government-wide electronic initiatives, including the e-rulemaking site.

"Many aspects of this initiative are fundamentally flawed, contradict underlying program statutory requirements and have stifled innovation by forcing conformity to an arbitrary government standard," the report said. The subcommittee said the initiative "forced" agencies to transfer funds into projects that appropriators hadn't specifically approved.

"We have always been skeptical of it," said John Scofield , spokesman for the full Appropriations Committee, speaking of "e-government" in general. "You are standardizing and imposing a one-size-fits-all [system] on agencies that have vastly different missions and objectives."

Just before Christmas, the EPA and the OMB told the agencies that beginning in January, the system was going into a maintenance mode, supporting only the agencies already on the new system. * * *

Some users who have given the new system a serious road test have come away befuddled over its "bugs" and have misgivings about its design.

They complain it runs too slowly, blocks access to some files and shuts down in the course of searches. Some can't open files at all. They want Google-like searches that will self-correct for misspellings.

Barbara Brandon , a reference librarian at the University of Miami Law School, said she had "saved" the electronic paperwork on several EPA rules before the agency shut down its own site in November and shipped its documents electronically to the new government-wide site. She did so, she said, because she was afraid she wouldn't be able to find the data on the new system. And she was right, she said. "I have one unsuccessful experience after another when I search in a particular docket."

Posted by Marcia Oddi on Tuesday, January 10, 2006
Posted to General Law Related

Ind. Courts - Supreme Court issues disciplinary decision

The Indiana Supreme Court, in a per curium opinion In the Matter of Danny Ray Hill, concluded:

Unfortunately, we are seeing a limited number of lawyers who do not timely respond to [the Supreme Court Disciplinary] Commission requests for information. The Commission’s requests for information cannot be ignored and to do so is an independent violation of Ind. Professional Conduct Rule 8.1(b). As with the respondent in this case, lawyers who choose to disregard Commission requests will do so at their peril. In the future, we will have far less tolerance for lawyers who fail to cooperate timely with the Commission and, as here, will not hesitate to take significant action.

Based upon the information before us, we find that the respondent is in contempt of this Court. We therefore order that the respondent, Danny Ray Hill, is suspended indefinitely. In or-der to be reinstated, the respondent must file a petition pursuant to Admis.Disc.R. 23 § 18 and satisfy the requirements of Admis.Disc.R. 23 § 4. The Clerk of this Court is directed to forward notice of this order to the respondent by certified mail, return receipt requested, at his address as reflected in the Roll of Attorneys, to the Disciplinary Commission, and to all other entities pursuant to Admis.Disc.R. 23, Section 3(d), governing suspension.

Costs of these proceedings are assessed against the respondent.

Posted by Marcia Oddi on Tuesday, January 10, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Still more on: Secrets of health care pact for legislators and staff may be revealed

Don't miss listening to this NPR story from this morning on accounting for health-care benefits. Titled "State, Local Governments Face New Accounting Standard", the summary reads:

State and local governments often have difficulties balancing their budgets, and this year it is going be even more difficult. A new accounting rule has been approved that may greatly complicate the way cities and states calculate employee retirement benefits.
Here are some brief notes I took from listening to story itself:
A new accounting rule could make it harder for state and local government to raise money in the bond market.

The new rule only applies to non-pension benefits, such as health care. When governments promise benefits they legally have to pay down the road it is just a form of deferred compensation and they should have to account for it when they agree to pay it. The rule change forces state and local governments to confront their huge unfunded liabilities. Most governments now have actuaries working to figure out what the cost is.

Although it will be politically difficult for many governments to address the problem, if they don't it will hurt their reputations with bond rating firms. Those who can't answer the question of how they are going to deal with this liability can see their bond ratings lowered, making it more expensive for them to borrow money. That means state and local governments that try to cover up the problem will pay a steeper and steeper price as time goes on.

What can be done? Here are some documents the ILB has located on this question.
"You Should Be Worried Sick about Health Insurance: Companies are cutting back on post-retirement coverage -- and they're not obligated to cover you at all" is the title to this June 1, 2000 article in Business Week.

"How safe are your retiree health benefits?" is a recent Wall Street Journal article reprinted in The State.com.

"Can the Retiree Health Benefits Provided By Your Employer Be Cut?" is the title to a comprehensive publication by the U.S. Department of Labor.

"Retiree Health Insurance: Erosion in Employer-Based Health Benefits for Early Retirees" is a 29-page GAO study from 1997.

More on the new accounting requirement. Here are quotes from a 1/6/06 column in the Boston Globe by Steve Bailey:
Financial documents are often best read starting with the footnotes in the back.

Take, for instance, the state comptroller's new Comprehensive Annual Financial Report for Massachusetts. On Page 116 there is a brief discussion of the bill the state faces for healthcare for retired state employees:

''The Commonwealth has not performed an actuarial valuation of its post-retirement health care and life insurance benefit liability. Private industry typically sees an actuarial accrued liability of 10 to 20 times the current annual payments. For the Commonwealth, this would extrapolate to an actuarial accrued liability of $2.5 billion to $5 billion."

That is a huge number for a state just emerging from a difficult financial stretch. But Massachusetts can take comfort in knowing it is hardly alone. State and local governments across the country are being forced to own up to the real cost of providing benefits -- largely healthcare -- to retirees. The pressure comes from a rule change by the Governmental Accounting Standards Board, or GASB, that will force governments to calculate and disclose these costs, just as private companies do.

Governments, which have been funding these costs on a pay-as-you-go basis, can't even quantify the costs of these benefits. * * *

The GASB rule does not require governments to fund the liability, only to disclose it. But the disclosure will put huge pressure on state and local governments to do something or face the consequences from the credit rating agencies. Samuel Tyler, president of the Boston Municipal Research Bureau, says the state needs a comprehensive approach to the problem, just as it did on underfunded pension systems in the late 1980s.

The real heat will come when politicians and taxpayers see exactly the costs for retiree benefits, and face the tough choices of money for retirees or money for schools or -- gasp! -- raising taxes. The private sector has increasingly been shifting costs to retirees. It's early, but states like Alabama and Ohio are doing the same. Watch this issue: It is a big-ticket item -- and it is going to get contentious.

Here is a NY Times story from 12/11/05, reprinted in its International Herald Tribune. It begins:
Since 1983, the city of Duluth, Minn., has been promising free lifetime health care to all of its retired workers, their spouses and their children up to age 26. No one really knew how much it would cost. Three years ago, the city decided to find out.

It took an actuary about three months to identify all the past and current city workers who qualified for the benefits. She tallied their data by age, sex, previous insurance claims and other factors. Then she estimated how much it would cost to provide free lifetime care to such a group.

The total came to about $178 million, or more than double the city's operating budget. And the bill was growing.

"Then we knew we were looking down the barrel of a pretty high-caliber weapon," said Gary Meier, Duluth's human resources manager, who attended the meeting where the actuary presented her findings.

Mayor Herb Bergson was more direct. "We can't pay for it," he said in a recent interview. "The city isn't going to function because it's just going to be in the health care business."

Duluth's doleful discovery is about to be repeated across the country. Thousands of government bodies, including states, cities, towns, school districts and water authorities, are in for the same kind of shock in the next year or so. For years, governments have been promising generous medical benefits to millions of schoolteachers, firefighters and other employees when they retire, yet experts say that virtually none of these governments have kept track of the mounting price tag. The usual practice is to budget for health care a year at a time, and to leave the rest for the future.

Off the government balance sheets - out of sight and out of mind - those obligations have been ballooning as health care costs have spiraled and as the baby-boom generation has approached retirement. And now the accounting rulemaker for the public sector, the Governmental Accounting Standards Board, says it is time for every government to do what Duluth has done: to come to grips with the total value of its promises, and to report it to their taxpayers and bondholders.

Posted by Marcia Oddi on Tuesday, January 10, 2006
Posted to Indiana Government | Legislative Benefits

Environment - A number of environmental stories today

Hazardous release. "Settlements in styrene leak top $2 million: Claims continue to be negotiated as trial looms" is the headline to a story in the Cincinnati Enquirer,about a leaking rairoad car last year in Cincinnati's East End "that spewed styrene into the air for several days in August, prompting the evacuation of about 800 properties."

Great Lakes. "Lakeshore key to economic future" is the headline to a story today in the Munster (NW Indiana) Times that begins:

GARY | A Lake Michigan shoreline studded with hotels, shops and dwellings could position the city, and its airport, as a travel destination, Mayor Scott King told Chamber of Commerce members Monday.
The Gary Post-Tribune reports that "Groups link to protect water in Great Lakes." A quote from the lengthy story:
Kay Nelson, the environmental director of the Northwest Indiana Forum, was one of more than 1,500 representatives of government and nongovernment agencies who worked together during the past year to draft a comprehensive strategy for the Great Lakes. At a time when desert dwellers salivate over the thought of buying Great Lakes water, and polluted fish poison pregnant women, the issue becomes a personal one for people in Lake and Porter counties, local environmentalists say.
Ethanol. Another story today on a rural county tieing its economic future to ethanol. The Muncie Star-Press reports:
WINCHESTER -- County commissioners and county council members tentatively agreed Monday night to do everything that was asked of them to land a $150 million ethanol plant in Randolph County.

The three commissioners and six council members (one was absent) voted unanimously to sign a non-binding letter of commitment fully granting all of the incentives requested by Cardinal Ethanol, a corporation represented at the meeting by local farmer Troy Prescott.

The incentives are a $10 million, unsecured loan, $250,000 in cash from the economic development income tax fund, and the maximum amount of tax increment financing and/or tax abatement allowed by state law.

Four other counties vying for the project also have been invited to offer incentives: Jay, Delaware, and Wayne counties in Indiana and Darke County, Ohio.

"This may be a once-in-a-lifetime opportunity," said Noel Carpenter, Randolph County assessor, who said agriculture remained the backbone of the local economy. * * *

If the ethanol plant defaulted on the loan, it would be repaid by county property taxpayers and/or income taxpayers, or both.

"We need to gamble on it and do it," council President Gerald Stephen said. "I know it's a gamble."

Jay and Darke county officials also were meeting Monday to consider incentive packages, said Greg Beumer, director of economic development in Randolph County.

County council member Bill Terrell expressed concern that so many ethanol plants are being built -- more than 90 nation-wide -- that some could go out of business, "and the county will get stuck with a $10 million debt that the taxpayers will have to pick up."

Council member Carlton Clevenger said Randolph County needed to attract the ethanol plant to show that it's "on the ball," which could help lure more business.

Drinking Water. "Clark County, state agency clash in well dispute" is the headline to this a lengthy story by Alex Davis in the Louisville Courier Journal. Some quotes:
Seven high-volume water wells near the Ohio River in Clark County have become the focus of a political tug of war between the county's elected leaders and the Indiana Department of Natural Resources.

The wells, which the state owns, haven't been fully operational for decades, but in recent months debate has been growing over where the water will flow in the future, and who will control any revenue from it.

On one side, the county commissioners claim that the state Department of Natural Resources and its director, Kyle Hupfer, refuse to approve a written plan for how the wells will be managed. They also say Hupfer wants to sell the water, which comes from an underground aquifer, to Louisville in a "direct deal" that wouldn't involve Clark County.

Hupfer said the county's claims are false. "We're not looking to gain anything," he said in a telephone interview yesterday. "Nobody should be making money off these wells." * * *

The Indiana Department of Natural Resources owns all seven wells, but a private company, Aqua Indiana, holds the rights to the water that comes from them. The company has expressed an interest in selling its rights, and Hupfer wants the state to buy them.

That would ensure that the wells are available for economic development, he said, and for future growth in communities as far away as Salem, Scottsburg and North Vernon. Hupfer said officials in Clark County are trying to control the wells themselves so they can make money by charging customers a fee.

Posted by Marcia Oddi on Tuesday, January 10, 2006
Posted to Environment

Ind. Law - Republican bill proposes four citizens plus Chief Justice draw legislative district boundaries

"GOP plan: New body should draw maps: Some legislators cool to proposal giving bipartisan commission redistricting authority" is the headline to a story in the Indianapolis Star today by Mary Beth Schneider. Some quotes:

The drawing of legislative districts would be taken away from lawmakers and handed to a bipartisan commission in a bid for more competitive races, under a proposal unveiled Monday by House Republicans. * * *

Currently, the party that wins control of the House or Senate in a census year also wins the once-in-a-decade right to draw the maps. In Indiana, both parties have been upfront about using the maps to try to maximize their political advantage.

They have protected incumbent lawmakers, ensuring that no two were drawn into the same district, and carefully studied voting patterns in order to come up with districts that were predictably Republican or Democratic. The result has been legislative and congressional maps with boundaries that twist and turn like snakes.

Rep. Gerald R. Torr, R-Carmel, said all that would be a thing of the past if the legislature passes his bill. Instead, he said, the commission, which would be led by Indiana's chief justice, would be required to draw districts that are compact, with the Senate and House maps overlapping so that every Senate district contains only two House districts. * * *

Jim McDowell, a political science professor at Indiana State University who follows redistricting issues, said the fact that those elected officials will have to approve this plan may doom it. Legislators, he predicted, may not be willing to hand over to an unpredictable commission a process that affects their own elections. * * *

The commission would be required to hold public hearings on the maps and to issue a recommendation by Oct. 1 of a redistricting year. The legislature would then convene in a special session, Torr said, to accept or reject the maps. Only technical amendments would be allowed, not major changes.

Left unanswered is what would happen if the legislature voted no. Torr said he hopes there would be so much public pressure on lawmakers to accept the plan that they would not vote against it.

HB 1009 is not available as of this writing, so I can't see whether failure of the plan in the General Assembly would leave the old map, and the safe seats, in place.

My first reaction to this bill is having the Chief Justice on the map-drawing commission would "take out" the Chief Justice, should an issue resulting from the law go the Supreme Court, leaving only four justices to decide. That is -- if it gets that far, as the law would face separation of powers questions from the git-go.

Lesley Stedman Weidenbener of the Louisville Courier Journal also writes on the proposal today. Her story reflects a more sketchy outline of the as-of-now unavailable bill than the Star story. Some quotes:

A bipartisan commission would draw the boundaries for state legislative and congressional districts under a proposal that will be pushed this year by House Republicans.

The five-member commission would have two Republican and two Democratic members -- none of them legislators -- with a chairman appointed by Indiana Chief Justice Randall Shepard.

It still must be decided whether lawmakers could tinker with the district lines drawn by the commission or even whether they would have to give final approval to the plan. * * *

Indiana already uses a commission to draw congressional district lines when the House and Senate can't agree. That happened in 2001, when the House, then controlled by Democrats, and the GOP-majority Senate passed differing plans and lawmakers adjourned without a compromise.

However, the House and Senate each drew the lines for their own districts.

That's exactly the way it should be, said House Minority Whip Dennie Oxley, D-English.

"We're the voice of the people who vote," Oxley said. "As it stands right now, each district's elected representative has a voice in this process."

But Bosma said the process is too political.

According to the National Conference of State Legislatures, 12 states give authority for legislative redistricting to a group other than the legislature.

The GOP proposal would require the five-member Indiana commission to base district lines on three criteria: population, contiguous territories and compactness. Also, the proposal calls for the commission to try to protect the boundaries of cities, towns and townships.

It also requires the commission to have public hearings and directs the General Assembly to convene before Oct. 1 of a redistricting year -- typically the year after a federal general census -- to consider the commission's recommendation.

Posted by Marcia Oddi on Tuesday, January 10, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - More on: Telecommunications rears its confusing head

The Senate Committee on Homeland Security, Utilities, and Public Policy hearing on SB 245 is at 9:30 a.m. today in the Senate Chambers. See this weekend's ILB entry for background.

Rep. Ryan Dvorak, in an entry this morning in his Ryan Dvorak Blog, titled "What 'broadband' means for Indiana," points to the LSA fiscal impact statement on SB 245 for a good summmary of its provisions.

Posted by Marcia Oddi on Tuesday, January 10, 2006
Posted to Indiana Government | Indiana Law

Ind. Gov. - Many stories today on the eminent domain bill

Adding to yesterday's report that HB 1010, the eminent domain bill, had passed out of committee, are a number of stories today.

The Louisville Courier Journal has this report by Lesley Stedman Weidenbener. Some quotes:

House Bill 1010 would make it more difficult and more expensive for cities, towns, counties and other governments to use their eminent domain powers to take private land for economic development that involves giving the property to a new private owner.

The bill's author, Rep. David Wolkins, R-Winona Lake, said that could occur only if the governments could prove that the properties essentially were slums. That means showing a court that they are a public nuisance, are unfit for human habitation, constitute fire hazards, have been neglected or have other safety problems.

Currently, state law requires only a finding that the property is blighted. "Indiana's definition of blighted is very, very loose," Wolkins said. "This would really tighten up the definition of 'blighted.' " * * *

The legislation would require governments to pay homeowners 150 percent of the fair market value of their homes -- plus relocation costs. They would be required to pay farmers 125 percent of the market value or provide another parcel of equal acreage.

They would pay just 100 percent of market value for commercial property but would be required to pay damages -- for such things as business lost during the move -- plus relocation expenses. Also, the government would be required to pick up any of the property owners' attorneys fees that exceeded $1,000. * * *

The bill prohibits governments from seizing private land if there is a reasonable alternative. But the bill goes further in other areas, putting new requirements on others uses of eminent domain. The bill would require that:

In all eminent domain cases, the condemner make a good-faith effort to negotiate with the property owner, submit a proposed purchase price and provide the owner with an appraisal or other evidence that backs up the proposed price.

All condemners, except for the Indiana Department of Transportation, proceed with acquiring a property within two years of making an offer. Any longer and the condemner must wait three more years before trying to take the property again.

The condemner use the property within six years or forfeit all rights to it.

Most of the restrictions would not apply to the Department of Transportation, something that Democrats said yesterday they'd like to change. But that could cause problems, Wolkins acknowledged, because Gov. Mitch Daniels has proposed a plan to lease to private companies the Indiana Toll Road and possibly a proposed extension of Interstate 69.

That means the provisions regarding transfers from one private owner to another might apply, making the projects much more difficult and expensive. Local government officials also said yesterday that the bill will make projects difficult.

Some quotes from a story by Niki Kelly in the Fort Wayne Journal Gazette:
Rep. David Wolkins, R-Winona Lake, started down this path in 2003 but the issue gained momentum with a U.S. Supreme Court decision last year. Traditionally eminent domain has been used on projects for public use, such as roads, schools or parks.

But the practice has slowly morphed into allowing public-good projects, such as creating more jobs or adding to the tax base. It was the latter approach that the U.S. Supreme Court ruled in favor of in 2005.

Wolkins conducted a summer study committee on the issue and said those attending the hearings preferred to limit eminent domain to public use only.
But he conceded there wasn’t enough support from lawmakers to do so.

Instead, he proffered this bill, which affects an entity that uses eminent domain to acquire a parcel of property from a private person “with the intent of ultimately transferring the ownership or control of the parcel to another private person.”

Under these circumstances, there would have to be no reasonable alternative to taking the land and it must accomplish more than just increasing the property tax base of the governmental entity. The parcel would also have to meet more specific conditions for a judge to determine it is available for condemnation, such as being subject to health or housing code violations.

Michele McNeil of the Indianapolis Star has a front-page story headlined "Bean firm gets a boost in its battle vs. stadium: Bill aims to block seizure of property for Colts' new home and restrict other takeovers of private land." Per the headline, much of the story focuses on how it would impact the Hurst v.s Studium standoff. Some quotes:
Its sponsor, David A. Wolkins, R-Winona Lake, said he made the bill retroactive to Nov. 23 specifically to block a takeover of the bean company's land in Downtown Indianapolis. Because the Indianapolis Colts have control over much of the parking at the new stadium, he said, it would be the same as a private developer getting the land. * * *

The stadium authority has admitted that it filed its eminent domain lawsuit in Marion Superior Court on the last business day of 2005 to try to lock in current law. The law was set last year when the U.S. Supreme Court ruled that governments could condemn homes and businesses for private development projects.

The House bill would leave mostly intact government's power to take land for public use, such as for a new road or utility line. Only when private property is uninhabitable, abandoned or a threat to public safety could it be seized for private use. And then, there must be no other reasonable alternative to seizing that property.

If an eminent domain action is successful, the government must then pay more for the property -- 150 percent of its appraised value.

Government officials maintain they need eminent domain power to revitalize neighborhoods and bring in companies to provide jobs. * * *

The bill's unanimous endorsement by the House Judiciary Committee on Monday signals widespread support for the issue. But there's a component that could doom the bill. Built into the bill are exceptions for the Indiana Department of Transportation, which uses eminent domain to acquire land for roads and highways.

Wolkins doesn't want the tougher restrictions to interfere with Gov. Mitch Daniels' Major Moves legislation, which would help pay for road projects by leasing Indiana highways to private companies.

A story by Patrict Guinane of the Munster (NW Indiana) Times expresses other concerns about the bill. Some quotes:
A move to tighten the state's eminent domain law could unnecessarily constrict expansion of the Gary/Chicago International Airport, officials said Monday.

Indiana legislators want to make it more difficult for state and local governments to seize private land. In particular, they want to impose stringent restrictions on cases in which government takes land and then turns it over to a private entity.

Airports often lease property to private firms for fuel storage and other reasons, and that provision could hamstring efforts for a major runway expansion in Gary, said Rep. Bob Kuzman, D-Crown Point.

"We've got to make sure it doesn't affect the annexation of the Gary airport," he said.

Kuzman also is concerned with a provision that exempts the Indiana Department of Transportation. The exemption was included to facilitate Republican Gov. Mitch Daniels' plan to have a private firm help build an Interstate 69 extension from Evansville to Indianapolis.

Kuzman said the exemption could create an unfair advantage if, for example, the Transportation Department leased property it owned to a gas station without collecting local property taxes. Kuzman is concerned such a case might occur along the Indiana Toll Road.

More on the INDOT exception in Jennifer Whitson's story in the Evansville Courier& Press:
But the bill includes a major exception for the Indiana Department of Transportation - allowing it to still take land at a lower cost and with fewer hurdles, even if the intent is to lease out the land to a contractor who would use it as part of a private toll road.

Wolkins said he included the INDOT exception to allow Gov. Mitch Daniels to make his pitch for Major Moves, the administration's transportation proposal. The plan would give Daniels the option to contract with a private company to help build and then run the Interstate 69 extension as a private toll road.

"I wasn't willing to cut (Major Moves) off at the knees at this point," Wolkins said. "I would gladly get rid of that. But at this point, I'm willing to let the governor make his case."

Democrats on the committee voted for the bill but said they hoped Wolkins would remove the INDOT exemption.

Posted by Marcia Oddi on Tuesday, January 10, 2006
Posted to Indiana Government | Indiana Law

Monday, January 09, 2006

Environment - More on wood-burning outdoor boilers

The ILB's first entry on outdoor wood-fired boilers, dated Dec. 5th, quoted from this comprehensive story in the South Bend Tribune. The Tribune story included this picture of what an outdoor wood-fired boiler/furnace looks like.

Today WNDU 16, also from South Bend, has a feature on the subject. Some quotes:

More and more homeowners are turning to wood burning furnaces for heat, but stricter regulations may soon impact their use.

The state is thinking about regulating how wood furnaces are used. The proposal is just in the beginning stages and they are asking for public comment.
* * *

The Alm's, who are eager to fire up their wood furnace, have paid $1,400 to fill the gas tank twice, so far this winter.

“It’s ridiculous and they are only going to get worse,” says Patty.

So, they decided last year to start chopping wood and buy a backyard wood-burning furnace.

“It’s work to get the wood, but we're not paying $700 for every fill that we would for a 500 gallon tank,” said Patty.

Right now, there aren't any regulations on the burners, which put out a lot of smoke.

“The only thing we say when we sell them, ‘don’t put garbage, railroad tie, tires, or plastics in them. As long as you burn wood it’s safe',” explained Borton.

However, that could change with the Indiana Department of Environmental Management considering new rules on wood furnaces, designed to cut down on emissions.

“I don’t know how that’s going to work for people we don't have anybody near us. So it shouldn't be a factor for us, but people in suburbs, it could be a factor for them,” said Patty.

In the meantime, the Alm's hope to save some money by heating the old fashioned way. * * *

The state will be taking public comments until March 3rd. They don't plan to make any decisions for at least a year.

Here is a WNDU picture of the new outdoor furnace being installed.

The IDEM request for written comments
. Here is the the IDEM notice requesting public comments, published in the Dec. 1st, 2005 Indiana Register. Comments originally were due by Jan. 3, 2006. Because of the interest that has now been extended to Mar. 3rd. In addition, according to the notice, IDEM is forming a workgroup for those interested in helping develop the rule.

For those unfamilar with the environmental rulemaking process. IDEM has a comprehensive online tutorial on how an environmental rule is developed in Indiana and how you can participate. Access it here (ignore the confusing internal links on the IDEM page that simply move you to different locations on the same page) -- simply scroll down the lengthy page to see the opportunities for public participation during the 18-24 month development of an environmental rule, a flow chart, etc.

[Other stories on this topic may be found by typing "wood boilers" in the search box in the right column.]

Posted by Marcia Oddi on Monday, January 09, 2006
Posted to Environment

Ind. Law - Eminent Domain bill passed out of House Committee

The Indianapolis Star reports this afternoon, in a story by Michelle McNeil, that HB 1010 passed out of House Committee today, apparently with no changes:

The power of government to seize private property would be limited under legislation approved unanimously by a House committee today.

House Bill 1010, sponsored by Rep. David Wolkins, R-Winona Lake, would allow local governments to use the power of eminent domain only when no other “reasonable” alternative exists.
T
he bill is retroactive to Nov. 23, which means that it could affect a pending lawsuit the Indiana Stadium and Convention Building Authority has filed against the N.K. Hurst Co. * * *

If property owners do lose their land to the government, the bill would require, in many in stances, owners to be paid 150 percent of the property’s market value.

The bill places further limits on governments that want to use eminent domain to obtain property, and then give it to a private developer. In that case, to seize the property, the parcel would have to be uninhabitable, unsafe or unsanitary.

The bill now advances to the full House for consideration.

See also this ILB entry from Jan. 8th.

Posted by Marcia Oddi on Monday, January 09, 2006
Posted to Indiana Law

Ind. Courts - More on: Auction gone bad winds up in court: sellers wanted to keep part of land

Thanks to Sherry Brown, the Clerk of the Harrison Circuit Court in Corydon, the ILB now has a copy of Harrison Circuit Court Judge H. Lloyd Whitis' opinion in the case of Ehalt v. Brewer Auction Service.

This is the case cited in this ILB entry from Jan. 5th that referenced a Louisville Courier Journal story headlined "Palmyra auctioneer ordered to pay for couple's lost land: Reserved parcel sold in purchase of farm."

Access the 11-page ruling, dated Dec. 20th, 2005, here.

Posted by Marcia Oddi on Monday, January 09, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Courts - LaGrange County considering adding cameras to Courthouse

"Council hears courthouse camera pitch" is the headline to a story today from WTHD 105.5. Some quotes:

LAGRANGE - LaGrange County Council members got the chance to ask questions about a proposed video conferencing system for the LaGrange County Courthouse this morning.

The nearly 25-thousand dollar camera and projector system would allow most prisoners to have their initial court appearances from the jail, according to Bob Murphy, the county’s information technology director. (listen)

Murphy says the cameras would also double as a security feature in the courthouse. (listen)

County Commissioners want to pay for the new system from county’s share of river boat gambling taxes. Council expects to take action on the funding request when they meet next month.
Access the story online for audio links.

Posted by Marcia Oddi on Monday, January 09, 2006
Posted to Indiana Courts

Ind. Gov't. - Still more on: Lake County printing contracts questioned

"Flawed printing contracts to get closer look by county" is the headline to a story today by John Byrne in the Gary Post-Tribune. Some quotes:

Lake County government apparently has been overpaying by tens of thousands of dollars for annual printing contracts.

Problems with the printing bids, which the Post-Tribune first brought to the attention of the Board of Commissioners, are much more common than officials first believed.

Responding to a mandate from the commissioners that they verify the contents of their requests for forms, booklets and other paper products for 2006, county departments reported widespread problems with the lists on which printing companies base their bids.

In some cases, departments reported more than half the bid lists were incorrect, despite the fact the commissioners office is supposed to update the printing requests before sending them out to bid each year.

After the Post-Tribune reported in early December that two arrest reports included in the printing specifications for the Sheriff’s Department had not been used in years, the commissioners pledged not to approve any printing contracts until completing an internal audit of the printing requests for all 25 Lake County departments. * * *

Based on the results of the commissioners’ audit, the county has been ordering reams of unneeded paper.

The Lake County Clerk’s Office, for instance, reported to the county Purchasing Department that 15 of the 28 paper forms on the 2006 bid sheet are obsolete.

For background, see these 12/4/05 and 12/6/05 ILB entries.

Posted by Marcia Oddi on Monday, January 09, 2006
Posted to Indiana Government

Environment - "Cleaning up brownfields is a good real estate investment"

"Cleaning up brownfields is a good real estate investment" is the title to an editorial today in the Munster (NW Indiana) Times. Some quotes:

Reuse and recycle are two valuable axioms to help preserve natural resources. They apply to real estate as well as to raw materials.

That is problematic when the previous use of the land has left it unsuitable for future use in its current condition.

These environmentally tainted properties are called brownfields. Cleaning them up isn't cheap, but it's necessary in order to redevelop cities responsibly.

So it's good news that companies are vying for a 30-acre former brownfield site in Hammond. * * *

"I talk to company CEOs twice a week," said Peter Novak Jr., Hammond's executive director of planning and development. "We can't get this project done fast enough. It's nice to have more companies interested than there is land available."

Which is all the more reason to continue to pursue brownfield cleanups. It's a slow process, but it holds many benefits, including putting the property back on the tax rolls and at a higher rate, not to mention providing additional jobs in a landlocked city with nowhere else to build new plants.

Posted by Marcia Oddi on Monday, January 09, 2006
Posted to Environment

Ind. Decisions - 7th Circuit rules on two Indiana-related cases today

In USA v. Brock, David C (SD Ind., Chief Judge Larry J. McKinney), Chief Judge Flaum writes:

Following a jury trial, Defendant David C. Brock (“Brock”) was found guilty of two counts of possession with intent to distribute 500 grams or more of methamphetamine; two counts of possession with intent to distribute cocaine (500 grams and an unspecified amount); and two counts of felon in possession of a firearm. The district court sentenced Brock to 360 months imprisonment on the drug counts and 120 months, to be served concurrently, on the felon-in-possession counts.

Brock appealed, challenging his conviction and sentence. See United States v. Brock, 417 F.3d 692 (7th Cir. 2005). We affirmed Brock’s conviction, but found that Brock’s sentence violated the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). We remanded to the district court, pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), to allow the sentencing judge to determine whether, if required to resentence under the now-advisory sentencing guidelines regime, he would reimpose Brock’s original sentence.

On remand, the district court stated that it would have given Brock the same sentence had the sentencing guidelines been advisory at the time it sentenced him. Brock now appeals from the district court’s order on remand. For the following reasons, we affirm the order of the district court. * * *

Because the district court would have imposed the same sentence post-Booker and because the sentence is reasonable, we conclude that Brock’s sentence was not the result of plain error. Additionally, we decline to reconsider the Paladino limited remand approach.

For commentary, see this entry from Decision of the Day, titled "Meaningless Remands under Booker?"

In Shares, Inc v. NLRB, Judge Cudahy writes:

Shares, Inc. (Shares) is a nonprofit [Indiana] corporation that trains and employs disabled individuals who perform primarily industrial tasks for customers. Wellman Automotive Parts (Wellman) retained Shares’ services to package the glow plugs that it manufactured for diesel engines. [Wellman bought a manufacturing facility in Shelbyville, Indiana, in 1988.] When Wellman entered bankruptcy in 2003, Shares decided to move to the manufacturing side of the glow plug business. Toward that end, Shares formed a new company (WAP, LLC), purchased Wellman’s machinery and hired many of Wellman’s former employees. These employees belonged to the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW). When Shares refused to bargain with the UAW, the union filed a complaint with the National Labor Relations Board (NLRB). The NLRB concluded that Shares is Wellman’s successor and is therefore obligated to bargain with the UAW under 29 U.S.C. § 158(a)(5) and (1). Shares petitions this Court for review, and the NLRB cross-applies for enforcement of its bargaining order against Shares. We deny Shares’s petition and grant the NLRB’s cross-application.

Posted by Marcia Oddi on Monday, January 09, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Lawmakers' benefits getting close look

"Lawmakers' benefits getting close look: Federal rules may lead to cut in state insurance package" is the headline to a story by Martin DeAgostino in the South Bend Tribune. Some quotes:

INDIANAPOLIS -- New reporting requirements from the federal government are casting light on lifetime health insurance benefits for Indiana lawmakers and their families.

The scrutiny may force cuts in the generous benefits package that would save taxpayer money and limit political fallout from any debate, according to lawmakers and other officials.

Speaker of the House Brian Bosma, R-Indianapolis, has promised administrative action this year to curb the benefits package for all House members elected this year, and Senate leaders are studying the package to determine their own course of action.

Meanwhile, state Auditor Connie Nass is seeking administration approval to conduct an actuarial study of the benefit, whose lifetime costs remain unknown.

Nass said the study is the only way she can comply with federal accounting standards that require corporations and governments to report all unfunded liabilities involving nonpension post-retirement benefits.

The state already includes pension liabilities in its comprehensive annual financial reports.

"There is any amount of guessing that can be done" about the insurance liability, Nass said, "but no one knows until an actuarial study is done."

Indiana's benefits package for lawmakers is generous by most standards, according to state Sen. Luke Kenley, R-Noblesville.

It provides health insurance for life for lawmakers, their spouses, ex-spouses and children younger than age 23 who live at home.

It also allows the beneficiaries to remain on the state plan once they're Medicare-eligible, unlike most plans that reverse that order.

"We have begun ... to look at this package to see, No. 1, what is the potential liability," Kenley said, "and No. 2, is the package in line with ... public expectations, or should it be modified."

House Minority Leader B. Patrick Bauer, D-South Bend, said the benefits probably exceed private-sector insurance benefits, and may have to be modified based on cost and public perception.

But he said lawmakers should quantify the program's costs before rushing to adjust it.

Nass said lawmakers qualify for the benefits after a minimum five years of service, which is slightly more than two full House terms and one Senate term.

Other legislative employees receive similar benefits, including legislative assistants, clerical staff, lawyers and employees of the Legislative Services Agency.

But Nass said the laws and rules that govern the benefit are so scattered that she cannot fully determine its scope or what year it passed.

"It's a very convoluted law," she said. "It's found in different places. I don't honestly know anyone who knows where it all is."

The benefit has drawn fire in the past, but more on principle than cost. That's because the pay-as-you-go program carries no specific line item in the biennial budget and has not been analyzed for its long-term costs.

For more, see this ILB entry from Jan. 6th, titled "More on: Secrets of health care pact for legislators and staff may be revealed."

Posted by Marcia Oddi on Monday, January 09, 2006
Posted to Indiana Government | Legislative Benefits

Ind. Law - "Hoosiers should be highly skeptical of a proposal to overhaul Indiana’s telecommunications laws"

The Fort Wayne Journal Gazette has an editorial today that begins:

Hoosiers should be highly skeptical of a proposal to overhaul Indiana’s telecommunications laws that will be discussed at an Indiana Senate committee meeting Tuesday.

Proponents are pushing a plan to largely deregulate the telecommunications industry, saying it will bring new services and lower prices to consumers.

Underneath the deregulation hype, though, is a bill that aims to strengthen telephone companies while adding a new layer of cable television regulation that takes away local control.

The Evansville Courier& Press has an editorial that concludes:
A deregulation bill nearly passed the session last year, especially after some consumer protections were amended into the measure, but ultimately it failed in the final hours of the session.

That process will begin anew tomorrow when the bill receives its first committee hearing. Whether it is amended, its passage - if not this year, then soon - seems inevitable and necessary. Competition as we have seen in the Evansville area for wireless, cable and Internet services has been good for the consumer. Ultimately, the state should find that a deregulated telecommunications industry will do much the same for Hoosier consumers statewide.

For background, see this ILB entry from yesterday.

Posted by Marcia Oddi on Monday, January 09, 2006
Posted to Indiana Government | Indiana Law

Law - Alito Confirmation Hearings begins today

The Senate hearings on the confirmation of nominee Samuel Alito Jr. to the Supreme Court begin today. The local (Indianapolis) NPR radio station, WFYI, is carrying them, beginning at noon. C-SPAN will cover them, beginning at 11:30 with a preview and at noon with the hearings. Here is C-SPAN's Alito page. For comprehensive coverage, see How Appealing and SCOTUSblog.

Posted by Marcia Oddi on Monday, January 09, 2006
Posted to General Law Related

Sunday, January 08, 2006

Ind. Law - Hurst bean factory in way of new Colts stadium; in Ohio, a standoff reaches state's highest court

There has been plenty of coverage here in Indianapolis on the question of whether "N.K. Hurst Co. will remain on the southeast corner of the four-city-block site of the new Indiana Stadium," including this John Ketzenberger Indianapolis Star business column from Jan. 5. More from the column:

The issue simmered like a 15-bean soup until last week. That's when the Indiana Stadium and Convention Building Authority sued under the state's eminent domain law.

For a guy who likes to say, "I just sell beans," Hurst has plenty of savvy. He has hired a team that includes prominent eminent domain attorney Nels Ackerson. Ackerson, who ran for Congress here in 1980, is based in Washington but still has a farm in Hamilton County. He won a $7 million settlement in 2002 for more than 600 people in a dispute over railroad rights of way. * * *

The stadium authority is well-armed, too. Prominent PR shop Sease Gerig and Associates, which handled public relations for Victory Field and Conseco Fieldhouse construction, signed on with the state Oct. 1.
And two of the city's most prominent and trusted figures have handled the talks. Authority members David Frick and John Mutz are linked to nearly every major project in Indianapolis for the past 25 years. They have a history of working things out. Yet, as the state's agents in this drama, they are viewed as the bad guys. * * *

The PR battle already has created a sense that the case is headed for the Supreme Court. But there's still room to strike a deal that makes both sides happy.

A new round of talks likely will occur Jan. 13-16; coincidentally, Hurst's first answer to the lawsuit is due Jan. 17. "It's in everybody's interest to get the matter resolved pretty quickly," Ackerson noted.

In Ohio, a case is already at the Supreme Court, as reported today in the Cincinnati Enquirer. Some quotes from the extended report:
The bitter, lengthy legal fight over Norwood's right to take private property for a $125 million retail, residential and office complex resonates far beyond this financially struggling city.

Municipalities, property owners, developers and state lawmakers nationwide are watching to see whether the Ohio Supreme Court sides with Norwood and the Rookwood Exchange developers or with three property owners - an elderly couple who have lived in their house for 35 years, a man with a rental house and a couple who operated a small math and reading center.

The outcome of this three-year legal battle will influence how other Ohio cities use eminent-domain authority to seize property for economic development. It also could provide clues about how eminent-domain laws might change in other states.

On Wednesday, Norwood's eminent-domain case is to take center stage in Ohio's highest court. * * * This is the first eminent-domain case to come before a state supreme court since the U.S. Supreme Court's landmark 5-4 decision last year. In Kelo v. New London, the court supported the right of New London, Conn., to use eminent domain to seize homes and businesses to allow a developer to build a hotel, health club and offices.

Beyond establishing economic development as a legitimate reason for eminent domain, the court gave state supreme courts leeway to provide greater protection for private property owners, if they desire.

"The Norwood case will serve as a real indication where states may go in this area," said Scott Bullock, an attorney with the Institute for Justice, a civil liberties law firm in Washington, D.C., that represents the Gambles, Horney and the Burtons. "It will determine whether there will be any meaningful limits on eminent domain in the state of Ohio." * * *

In reaction to last year's U.S. Supreme Court decision, legislators in about 40 states have or will consider changing laws to make eminent domain more difficult to use. Ohio recently placed a one-year moratorium on using eminent domain for economic development while legislators consider changes in state law.

Burke says the Norwood case boils down to a basic dilemma: "How far do you go to respect individual rights in relation to the efforts of a municipality to better the condition of the community as a whole?"

Bullock expressed the same point in a different way.

"Ohio now has a choice as to which direction it'll take," he said. "Will it go toward the U.S. Supreme Court's Kelo decision or will it go in a direction that provides real limits on eminent domain authority?"

An eminent domain measure, HB 1010 will be heard in the House Judiciary committee tomorrow, Monday, Jan. 9th, at 10:30 a.m. in the House Chambers.

There is no word that video of this important hearing is going to be made available live on the General Assembly site, but this should be easy enough to do because the hearing is in the House Chambers. And of course, no word that the video record of this hearing is going to be posted online so that citizens who work doing the day may review it later.

See this ILB entry from Nov. 21st, 2005 on Speaker Bosma's promise to expand the House's online video coverage. A check of the General Assembly site where the video is made available (here), however, shows instead that the entire video archive of the 2004 House session has been removed within the past few days. So much for history.

Posted by Marcia Oddi on Sunday, January 08, 2006
Posted to Indiana Government | Indiana Law

Ind. Courts - "Truck driver from Greenfield" defendant in espionage trial beginning tomorrow in federal court here

"Espionage trial begins tomorrow: Man accused of aiding Iraq" is the headline of an AP story by Ashley M. Heher published today in the Louisville Courier Journal. Some quotes:

INDIANAPOLIS -- Allegations of international espionage will duel with claims of a mysterious twin when court proceedings begin for a man accused of offering to sell the names of U.S. intelligence agents to Saddam Hussein's regime.

Shaaban Hafiz Ahmad Ali Shaaban, 53, will represent himself when jury selection begins tomorrow in U.S. District Court.

Prosecutors say Shaaban tried to broker the sale of information to Iraqi officials in late 2002, shortly before a U.S.-led coalition began the war to overthrow Saddam's dictatorship.

But the truck driver from Greenfield, about 20 miles east of Indianapolis, contends he is a victim of mistaken identity and is being confused for a dead twin brother who worked for the CIA.

Kevin Cocoran of the Indianapolis Star writes today, in a lengthy story headlined "Spy case to feature cloak and swagger: Among witnesses against Greenfield man will be disguised intelligence operatives":
With all the intrigue of a spy thriller, a federal trial that begins Monday might include a former high-ranking Iraqi intelligence official, a Russian native named Svetlana and an Arabic-speaking undercover FBI agent.

All could be among witnesses called to testify at an Indiana truck driver's trial in Indianapolis on allegations he offered to sell names of U.S. covert operatives to Saddam Hussein's Iraqi government.

Two witnesses -- the former official in Iraq's disbanded intelligence-gathering agency, the Mukhabarat, and the FBI agent -- will be allowed to testify in disguise while also shielded from public view. They will be whisked through private entrances by U.S. marshals. They can testify using aliases. And sketch artists and journalists will be under a court order not to describe them.

U.S. District Judge John D. Tinder ordered the extraordinary precautions at the request of federal prosecutors, who say identifying the cloaked witnesses could expose them to physical harm.

Posted by Marcia Oddi on Sunday, January 08, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Telecommunications rears its confusing head

Lesley Stedman Weidenbener of the Louisville Courier Journal's Sunday column is headlined "Telecommunications rears its confusing head." It is the third piece she has written on the subject within four days, and it is a good thing -- this is indeed a complex and difficult, and essential, area. (Access the two earlier stories here and here.)

Weidenbener also wrote an excellent story less than a month ago (see ILB entry here) headlined "Phone company oversight to stay: State regulators act to level playing field" about the IURC's "unanimous 50-page order that competition in the state has not developed enough to entirely eliminate oversight of the companies and let the market take over."

Today she writes:

Senate Bill 245 aims to update the state's regulatory structure, eventually eliminating the cost controls for local phone service and many of the rules that govern their operation. It strips the Indiana Utility Regulatory Commission [IURC] of most of its oversight over those companies.

The bill also frees companies that want to provide video service -- essentially cable television -- from having to negotiate deals with every community where it wants to do business. Instead, a company could essentially sign up with the Indiana Utility Regulatory Commission and then start selling its service.

Also, the bill provides some tax incentives to encourage private companies to expand high-speed Internet services through Indiana, but it puts some restrictions on local governments that want to provide that service to their residents.

This is not a bill on which there are two sides. There are about a dozen. So many kinds of companies will be affected by this bill that there is information coming from every direction.

The story goes on to summarize some of the positions. Weidenbener ends with:
Lawmakers will spend the next nine weeks trying to hash that out. They'll start with a committee hearing at 9:30 a.m. Tuesday in the Senate chamber. Customers should pay attention. [my emphasis]
There is no word that video of this important Senate Committee on Homeland Security, Utilities, and Public Policy hearing on SB 245 is going to be made available live on the General Aseembly site, but this should be easy enough to do because the hearing is in the Senate Chamber. And of course, no word that the video record of this hearing is going to be posted online so that citizens who work doing the day may review it later.

The Indianapolis Star also has a story on the subject today: "Phone deregulation spurs debate: Companies say competition will lower prices; consumer groups not so sure." J.K. Wall writes:

The debate over telecommunications regulation was renewed in Indiana last week when Sen. Brandt Hershman, R- Wheatfield, unveiled a bill that would stop the state from regulating traditional phone prices.

It also would try to encourage cable competition by moving franchising authority to state government from local governments, limiting efforts by local governments to provide cable service and establishing incentives to increase high-speed Internet service throughout the state.

The telephone industry has failed to win deregulation in recent years, but Senate President Pro Tempore Robert Garton, R-Columbus, has said this could be the year for significant telecom deregulation.

Gov. Mitch Daniels spoke in favor of Hershman's proposal, Senate Bill 245. Indiana's current law was crafted in the days of "telephone poles and above-ground wires," he said. "The regulatory structure is not good enough for today."

Tim Oakes, executive director of the Indiana Cable Telecommunications Association, said the bill would increase costs for many subscribers and would allow phone companies to target only the most desirable customers. "The only people that would like this bill is SBC/AT&T and Verizon," Oakes said. "They're not interested in providing fiber to the premises; it's about fiber to the rich."

Phone companies such as AT&T Indiana (which was formerly SBC) like the idea, because it would allow them to roll out their as-yet-unreleased Internet protocol television.

Kevin Brinegar, president of the Indiana Chamber of Commerce, said cable companies want to maintain the current regulatory system to avoid extra competition. Both cable and phone firms are or will be offering their customers a bundle of TV, phone and Internet services. "We're generally in support of it," said Brinegar of Hershman's 78-page bill. "(It would help) to create competitive markets for broadband so there's some downward pressure on price."

Posted by Marcia Oddi on Sunday, January 08, 2006
Posted to Indiana Government | Indiana Law

Saturday, January 07, 2006

Ind. Gov't. - Did Gander Mountain STIF Cabela's?

"Did Gander Mountain STIF Cabela's? One outdoors retailer lobbies against incentives for other" reads the headline to this story today in the Munster (NW Indiana) Times. Some quotes:

A competing outdoors retailer has been lobbying state officials to put the lid on government subsidies for a Cabela's in Hammond and Bass Pro Shops in Portage.

The message is that Gander Mountain doesn't need government assistance, and neither should its competitors.

This fall, a public relations firm connected to the Minnesota-based Gander Mountain sent Republican Gov. Mitch Daniels and top officials at the Indiana Economic Development Corp. a report titled, "Leveling the Playing Field: Making the Case for Limiting Government Incentives for Retail Development."

Read this story in conjunction with the quotes from the Gary-Post Tribune's story Friday, preserved in this ILB entry.

Posted by Marcia Oddi on Saturday, January 07, 2006
Posted to Indiana Government

Ind. Decisions - Court of Appeals upholds ruling in defamation suit

The Terre-Haute Tribune Star has a story today by Sue Loughlin on the Indiana Court of Appeals opinion on rehearing last week in the case of Paul Joseph "Jay" Kelley, III v. Daniel T. Tanoos. Some quotes:

The Indiana Court of Appeals on Wednesday reaffirmed its earlier ruling that Jay Kelley’s defamation lawsuit against Vigo County School Corp. Superintendent Dan Tanoos should go to trial.

The appeals court made its initial ruling in August, and Tanoos’ attorney then sought a rehearing before the court.

John Price, Kelley’s attorney, said in response to the latest decision, “We’re very encouraged by the fact that the Court of Appeals twice now has upheld Jay Kelley’s case and we’re looking forward to trying the case in Terre Haute.”

Before that happens, Tanoos and legal counsel must decide whether to ask the Indiana Supreme Court to intervene, said Bryan Babb, an attorney with Bose, McKinney and Evans, which is representing Tanoos in the lawsuit.

“We have 30 days to seek a transfer to the Indiana Supreme Court,” Babb said. The goal would be for the Supreme Court to reverse the Court of Appeals decision and reinstate the original trial court order.

In August, the appeals court overturned a decision made by Superior Court Division 3 Judge David Bolk granting summary judgment in Tanoos’ favor.

Kelley, who filed the lawsuit in December 2002, alleged Tanoos falsely accused him of the Jan. 17, 2001 shooting in which Tanoos was grazed in the head by a bullet. He also alleged that Tanoos tried to get him fired from his job at Gibault Inc. Kelley no longer works at Gibault.

Posted by Marcia Oddi on Saturday, January 07, 2006
Posted to Ind. App.Ct. Decisions

Law - Supreme Court to consider DNA innocence claim

"High Court to Consider DNA Innocence Claim: Death Row Prisoner Wants New Trial" is the headline to a long and fascinating article by Charles Lane in tdoay's Washington Post. Take these quotes, for example:

The Supreme Court has never squarely ruled that executing an innocent person is unconstitutional. Appellate courts do not usually concern themselves with new evidence, instead focusing on whether a defendant received a fair trial.

House's lawyers want the court to rule that, in the age of DNA testing, the Constitution guarantees those with particularly strong claims of innocence a chance to seek a new trial, even if the normal appeals process has run out. At a minimum, they say, House is entitled to a new hearing under existing court precedent, which allows death row prisoners with strong claims of innocence to raise separate constitutional issues that would otherwise be barred.

But Tennessee officials argue that House's case is about a duly convicted killer denying the people of Luttrell justice for Muncey's death. While DNA testing may have knocked a hole in the state's case, they argue, its foundations are still solid.

No matter which side wins, the court's ruling could have consequences for the ability of other death row inmates to contest their convictions in federal court.

For more on the case, Paul Gregory House v. Ricky Bell, Warden, access the Findlaw.com docket - the case is about half-way down the page.

Posted by Marcia Oddi on Saturday, January 07, 2006
Posted to General Law Related

Ind. Decisions - Still more on Dental Board action against Angola dentist

Updating the ILB entry from Dec. 30th, the Fort Wayne Journal Gazette reports today, in a story by Niki Kelly, that:

An Angola dentist accused of diagnosing fictitious cavities lost her bid Friday to regain her license to practice when the Indiana Board of Dentistry voted 6-0 to continue Dr. Penelope Dunlap’s suspension.

Five members of the board abstained but did not give a reason.

Dunlap was initially given a 90-day suspension in November that was expected to run out in February, before the board was scheduled to meet again.

The latest 90-day suspension will last until May 4, just past an April trial date that has been set on 11 felonies Dunlap has been charged with in Steuben County. * * *

In November, the state Attorney General’s Office filed a complaint with the Indiana Board of Dentistry seeking an emergency suspension in reference to questionable cavities in three patients.

In December, local prosecutors filed six counts of Medicaid fraud and five counts of attempted theft, all Class D felonies.

Deputy Attorney General Dan Cavallini said the number of patients has now risen to 11, and his office needs more time to investigate.

In all, according to Cavallini, Dunlap is alleged to have diagnosed 63 non-existent cavities and attempted to bill Medicaid and private insurers for drilling and treatment of those teeth. “We either have an incompetence issue or a fraud issue or both,” he told the board.

But Dunlap’s attorney Anthony Kraus said she denies the allegations and hasn’t had an opportunity to confront her accuser – Dr. James Jones – the dentist in a key state affidavit who challenges her diagnoses. He was unavailable for the first hearing and the state did not call him as a witness Friday.

Kraus pointed out that Dunlap diagnosed one patient in the state’s complaint with 10 cavities while an unidentified dentist said the person had none. Another unidentified dentist countered with two cavities, and Jones said zero.

He said that diagnosing cavities is subjective; pointing out those four different dentists reviewed the patient and had three opinions. “My client has suffered the ultimate penalty here by having her license suspended for 64 days based on a judgment call,” Kraus said.

Posted by Marcia Oddi on Saturday, January 07, 2006
Posted to Ind. Adm. Bd. Decisions | Ind. Trial Ct. Decisions

Ind. Gov't. - Former Judge Yelton had busy year in new job

Lesley Stedman Weidenbener reports in the Louisville Courier Journal today:

As a 25-year veteran of the bench, former Clay Circuit Judge Ernest Yelton handled a number of complicated and high-profile cases. He also was a state and national leader in judicial organizations and a finalist four times for other state or federal judicial appointments.

Despite that background, he had some trepidation when offered the job as executive director of the Indiana Gaming Commission a year ago. His biggest concern was a little nervousness about the differences between setting the rules as a regulator and imposing them as judge.

His Clay County courtroom was filled with volumes of laws and precedent-setting rulings that helped guide his decisions. "I had the tools — in almost all cases — so I felt very comfortable with my decisions legally," Yelton, 57, said in a recent interview. At the gaming commission, however, "my decisions are far more of a judgment call," he said. * * *

Despite his concerns about the job, Yelton was excited, agreeing to take it during his initial meeting with the new governor. Daniels gave him three goals: evaluate the Trump deal, get the state police off the casino boats as enforcement personnel, and review the regulation of the casino industry.

Unlike some of Daniels' appointees, Yelton started by holding on to most of his agency's top staff. And then he hired some experts — one in bankruptcy proceedings and the other in corporate economics — to help him evaluate Trump.

"One of the main issues with the Trump organization was an extraordinarily complex bankruptcy proceeding," Yelton recalled in a recent interview. "And while I had to deal with corporations at the Clay Circuit Court, there were none like the Trump organization."

Once Trump was out, the state reopened the bidding, eventually awarding it to the lone bidder. * * *

"It's hard for anyone to take a look at the proposal now in French Lick and not think it's many times more favorable than what we had on the table when I got here in January," Yelton said. "We get immediate renovation of the French Lick Springs Resort and the promise shortly thereafter of a complete renovation of (the hotel in) West Baden. Together with the casino, the event center, the golf courses, I can't imagine a better conclusion than what we have today."

There is much much more to this don't miss article.

Posted by Marcia Oddi on Saturday, January 07, 2006
Posted to Indiana Government

Ind. Courts - ND Ind. Judge Robert L. Miller Jr. celebrates 30th anniversary on bench

"Miller's 30 years on bench celebrated: Judge recognized for compassion, fairness, courtesy" is the headline to this story today by Marti Gooslad Heline in the South Bend Tribune. Some quotes:

SOUTH BEND -- When Robert L. Miller Jr. was first named a judge, he was 25 years old and had never practiced law.

And that made some people doubt if Miller had enough experience to do the job, Circuit Court Magistrate David Ready recalled Friday at a ceremony making Miller's 30th anniversary as a jurist.

"But I never doubted," Ready said.

Not long out of Indiana University School of Law, Miller was a law clerk for the late U.S. District Judge Robert A. Grant when he applied to the panel that would nominate finalists for a new St. Joseph Superior Court judgeship.

The judge was to be appointed under a new selection system approved by the state legislature.

Miller recalled, in an interview, he submitted his name after being told by a panel member there weren't enough applicants.

Despite naysayers, then-Gov. Otis Bowen appointed Miller.

And being a judge turned out to be a terrific job, according to Miller.

Posted by Marcia Oddi on Saturday, January 07, 2006
Posted to Indiana Courts

Ind. Decisions - Judges rules Lilly broke research contract

The Indianapolis Star reports today, in a story by Jeff Swiatek that begins:

Eli Lilly and Co. broke the terms of its contract with a research partner by setting up a secret development team using the partner's technology for another project behind its back, a federal judge ruled Friday.

The ruling gives tiny Emisphere Technologies, of Tarrytown, N.Y., a key victory in a more than two-year-old legal fight with pharmaceutical giant Lilly.

In a 60-page decision that criticized the drug maker for "shifts and internal contradictions" in its explanations, U.S. District Court Judge David Hamilton said Emisphere was free to terminate its research agreement with Indianapolis-based Lilly in 2004.

"Lilly deliberately chose a course that was too aggressive, one that tried to sail too close to the wind," the judge said in ruling that Lilly breached the contract it had with Emisphere.

No damages were awarded. Emisphere spokesman Dan Budwick said company officials are "very pleased with the decision" and will decide later whether to ask the judge to award damages. Emisphere still has a patent infringement claim pending against Lilly.

Access the ruling in Lilly vs. Emisphere Technologies here.

Posted by Marcia Oddi on Saturday, January 07, 2006
Posted to Ind Fed D.Ct. Decisions

Law- - Wisconsin Right to Life, Inc. v. Federal Election Commission to be argued before the Supreme Court Jan. 17th

Wisconsin Right to Life, Inc. v. Federal Election Commission will be argued before the U.S. Supreme Court on Tuesday, Jan. 17th. This is one of two campaign finance cases granted cert by the Court this term in which Terre Haute attorney James Bopp, Jr. is lead counsel.

Here, via Findlaw.com
(a little more than half-way down the page), is the annotated docket to the case, with links to lower court opinions and other resources. The briefs are not yet available at the Findlaw.com site, but the briefs of this case are presently available here, via the James Madison Center for Free Speech.

For background, start with this ILB entry from Nov. 14, 2005.

Posted by Marcia Oddi on Saturday, January 07, 2006
Posted to General Law Related

Friday, January 06, 2006

Ind. Decisions - 7th Circuit ruling makes "Decision of the Day"

Decision of the Day, an outstanding legal blog, selected the 7th Circuit's ruling today in the case of Evans v. Chicago as its decision of the day.

Posted by Marcia Oddi on Friday, January 06, 2006
Posted to Ind. (7th Cir.) Decisions

Law - Appeals Court Upholds Martha Stewart Conviction

The AP is reporting that:

NEW YORK (AP) -- A federal appeals court Friday upheld the conviction of celebrity homemaker Martha Stewart for lying to investigators about selling stock that plunged in price soon after her trade. Stewart completed her sentence in the case last summer but pursued the appeal anyway.

The 2nd U.S. Circuit Court of Appeals in Manhattan issued a written ruling upholding the 2004 convictions of Stewart and former stockbroker Peter Bacanovic for lying about why Stewart sold nearly 4,000 shares of ImClone Systems Inc. stock in 2001.

Fonrtunately, Stewart elected to go ahead in 2004 and serve her 5-month prison term, followed by a 5-month house arrest, completing them in the early summer of 2005. So she has it behind her. Otherwise, this weekend she would be getting ready to serve her time.

Posted by Marcia Oddi on Friday, January 06, 2006
Posted to General Law Related

Ind. Gov't. - More on: Secrets of health care pact for legislators and staff may be revealed

Here is how it works (see also ILB entry from earlier today):

Lawmakers' retirement health benefit wasn't created by a single piece of legislation. The benefit came together in four separate bills over two years, but only the first bill described the benefit lawmakers were creating.

Step 1: House Enrolled Act 1667, passed in 2001, defined the House speaker and Senate president pro tempore as "public employers" for purposes of offering subsidized health insurance to ex-lawmakers, ex-lawmakers' spouses, their children and ex-spouses. The Legislative Council, composed of legislative leaders, was made the "employer" for purposes of offering similar coverage to retired legislative staffers and their families. The plan was activated in mid-2002 for ex-lawmakers and in February 2003 for retired legislative staffers.

Step 2: A paragraph included in House Enrolled Act 1193, also passed in 2001, prohibited the House speaker, Senate president pro tempore and Legislative Council from revoking post-retirement insurance coverage, once offered. Only a vote of the entire General Assembly can revoke it. [see p. 5, SECTION 6 - a simple majority in each house is all that is required]

Step 3: A paragraph tucked away in House Enrolled Act 1196, a massive bill passed in 2002, gave the House speaker, Senate president pro tempore and Legislative Council power to tap a special fund to pay for retired lawmakers' and retired legislative aides' health benefits. [Check p. 153, SECTION 141]

Step 4: Senate Enrolled Act 506 would have created the special fund, without stating its true purpose, but then-Gov. Frank O'Bannon, a former legislator, vetoed it. The next day, a veto override attempt failed 26-25 in the Indiana Senate, with then-Lt. Gov. Joe Kernan casting the deciding vote. The fund has not been created. [See SECTION 1 - This would create a non-reverting fund, to which "unused approriations were to be transferred, to be used as described in the preceding bullet point. To get an idea how it would work, see IC 2-5-1.1-18 and the reserved section above it.].

[emphasis and comments added]

The above is from a sidebar to a story by Kevin Corcoran of the Indianapolis Star, published on March 14th, 2005. I've added the annotations. The story itself is no longer freely available, but is quoted in this ILB entry from the same date.

Additonally see these statutes: IC 5-10-8-8.1; IC 5-10-8-8.2; IC5-10-8-8.3; and IC 5-10-8-8.4. They are available here.

Legislators Pensions. In my earlier entry today I said this may be only part of the benefits story. As some readers may recall, two years ago a number of newspapers in the state unsuccessfully sought to gain access to information about pension (as opposed to health) benefits of state legislators. It turns out the ILB did a comprehensive wrap-up of the "PERF Privacy Issue" and posted it in this entry dated Feb. 10, 2005.

Posted by Marcia Oddi on Friday, January 06, 2006
Posted to Indiana Government | Legislative Benefits

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending January 6, 2006

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 January 6, 2006. There are 8 Court of Appeals cases listed this week.

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

Posted by Marcia Oddi on Friday, January 06, 2006
Posted to NFP Lists

Ind. Gov't. - Secrets of health care pact for legislators and staff may be revealed

Howey's Political Report Online today contains this in a caption to a photo of legislative leaders Garton and Bosma:

Auditor of State Connie Nass said the legislature’s cushy health care for life program includes the entire legislative branch. “It includes the legislative branch, CPAs, attorneys, LSA, staff,” Nass said on WXNT’s Abdul in the Morning Show. “This law is very difficult to research. That’s why we need an actuary. It’s convoluted. It’s spread out. It was part of several bills.” Nass said she expects the cost of the program to be high. She said legislators could be eligible as soon “four or five years of service.” She said that for younger legislators, the lifetime costs to the state could be significant. “They could be 25 years old,” Nass said. “That’s a lifetime of coverage for legislators, spouses, ex-spouses.”
More from the caption:
House Speaker Brian Bosma (right), reacting to what appears to be a politically explosive issue in an election year, said he may address the legislator health care for life issue administratively. Bosma told WNXT’s Abdul in the Morning that it is his intent to “drastically alter the program” soon. “A number of changes will be in place over the next couple weeks,” he said. “I do not think this is an appropriate benefit. It will be changed administratively. The program will be very different for those who are elected in 2006 as opposed to those elected in 2004.” Bosma said that those receiving the benefits - which includes the entire legislative branch - may continue to do so even after administrative changes. “We are learning you cannot alter benefits for those already getting those benefits.”
That is interesting; big corporations have been able to do so.

From the body of Hovey's story:

The sources believe the lifetime health benefits was woven into Indiana law around the 1999 and 2000 sessions, during the time period of that PBS report. Several sources say that key players included then-House Speaker John Gregg, Senate President Pro Tempore Robert D. Garton and former Senate Finance Chairman Larry Borst. Gregg has since retired and Borst was defeated for re-election in 2004 with lucrative legislative perks a key campaign plank against him. Others involved include the late State Sen. Potch Wheeler and former State Rep. Mike Smith.

Bosma, who aides say didn’t know about the deal when he was House minority leader, is expected to present a legislative package that would roll back eligibility for the program. A senator who asked not to be identified said that Kenley talked about gradually phasing in eligibility of legislators serving from six to 20 years. That same source said that Senate President Garton doesn’t want to change anything, telling his caucus at one point, “We made a promise” to all these legislators.

And merely rolling back some of these perks is fraught with political danger. Several freshman Republicans, like State Reps. Billy Bright, Troy Woodruff, Tim Harris and Bill Davis, won close races in 2004 using legislative perks as a campaign issue. Rolling back some of these perks, short of outright scrapping them, could leave them in a precarious position.

Garton appears to think that a promise to his cronies is more important than the millions of dollars Hoosier taxpayers are going to get suckered into paying at a time when 14 percent of you don’t have any health coverage at all. And if you’re a small business person (4 percent of you) with a pre-existing condition, you can’t get any type of affordable coverage.

Parts of this "arrangement" were reported at the time in the Indianapolis Star (in, I believe two stories, one in Behind Closed Doors) although its significance was not totally recognized. I have been unable thus far to locate the stories from back then.

My recollection is that the life-time benefits plan was put in place through the insertion of seemingly innocent language into several bills, over several sessions, that "happened" to all mesh together in the end and that LSA attorneys may have played a major coordinating role. In addition to language in legislation, as I recall the coverage was effectuated by documents signed off on at various times by members of the leadership.

Two more things. First, despite what you may have read in other blogs today, state employees do not receive health insurance benefits (or direct health care benefits) through PERF when they retire from state government. Neither do public school teachers, as far as I know.

Second, this may be only part of the benefits story. As some readers may recall, two years ago a number of newspapers in the state unsuccessfully sought to gain access to information about pension (as opposed to health) benefits of state legislators. (The ILB had a number of entries on that issue, which I will locate and link to later.)

Posted by Marcia Oddi on Friday, January 06, 2006
Posted to Indiana Government | Legislative Benefits

Ind. Courts - New Howard County Superior Court 4 opens; other changes [Updated 1/7/06]

The Kokomo Tribune reports today:

Howard County Superior Court 4 is open for business. Kokomo resident George Hopkins, was sworn in as judge this morning and begin accepting cases.

Superior Court 4, officially termed a court of general jurisdiction, will accept largely lower felony, mental health and civil cases under reorganization guidelines established by a vote of county judges.

It’s not the only change in the courthouse, however.

One of the biggest changes the courts will see in the coming year is the transition of Superior Court I, under Judge William Menges, into a drug court.

Superior Court 2 Judge Stephen Jessup said a judge’s vote has resulted in a petition to the Indiana Supreme Court to dedicate Superior Court 1 to handle only drug-related cases.

Superior Court 3 will no longer file criminal domestic cases and driving felonies of Class C and higher, Menges said.

“That’s the action taken by the judges. I voted against it,” Jessup said.

Although he called the changes “drastic,” Menges said a drug court has been a goal for some time. “That was one of the things we wanted to do with the establishment of another court,” he said.

[Updated 1/7/06] Here today is a longer story on Judge Hopkins - same paper, same reporter.

Posted by Marcia Oddi on Friday, January 06, 2006
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending January 6, 2006

Here is the Indiana Supreme Court's transfer list for the week ending January 6, 2006.

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, January 06, 2006
Posted to Indiana Transfer Lists

Environment - LaPorte County joins Pines transfer station appeal; IDEM may close NW Indiana office; More on wood boilers

Pine transfer station. The Michigan City News-Dispatch and the Chesterton Tribune report that LaPorte County will join the appeal. From the N-D:

[LaPorte County Commission President Marlow Harmon] asked commissioners to sign a resolution that would allow county attorneys to intervene in an appeal filed by two Porter County communities to the Indiana Department of Environmental Management, which granted Blieden a permit for the station in early November.

The resolution supports the towns of Pines and Beverly Shores, which filed an appeal in November. Their joint appeal cited environmental concerns, especially that the proposed location puts Kintzele Ditch in danger of contamination. The ditch flows into Lake Michigan between the Indiana Dunes National Lakeshore's swimming beaches at Mount Baldy and Central Avenue. * * *

“We hereby direct our attorneys to seek to intervene in the pending appeal of the permit granted by (IDEM) to this facility and that our attorneys are empowered to take such steps as are necessary to indicate to any reviewing agency or court of law that we oppose the siting of such facility at the currently proposed location near County Line Road in LaPorte County.”

From the Tribune:
The LaPorte County Commissioners have taken a stand against the proposed waste transfer station on the Porter-LaPorte county line and will try to join in the appeal of the state-issued permit.

The Porter County Commissioners, as well as the towns of Beverly Shores and The Pines, are appealing the permit that was issued by the Indiana Department of Environmental Management to Great Lakes Transfer LLC of Michigan City.

IDEM’s permit approval came despite strong opposition from residents and public officials, who say the site is too close to homes, is situated in an environmentally sensitive area, and could negatively impact the nearby Indiana Dunes National Lakeshore. The Porter County Commissioners, in particular, are appealing the permit on the grounds that County Line Road is not suitable for heavy truck traffic due to its 10-ton weight limit and frost law restrictions.

IDEM Closing NW Office? Meanwhile, the Gary Post-Tribune reports today, in a story headlined "IDEM branch’s future in question":
The state’s environmental commissioner wanted to know if his agency should keep a regional office in Northwest Indiana. He got an emphatic yes Thursday from a room full of Northwest Indiana environmental leaders.

The region’s unique environmental problems demand special attention from the Indiana Department of Environmental Management, they told IDEM Commissioner Tom Easterly.

With the nation’s steel-making center, one of the country’s most polluted rivers and Indiana’s only direct Great Lakes access, they argued, Northwest Indiana needs more, not less, IDEM presence.

“We need to have someone up here who understands the issues,” said Reggie Korthals, environmental coordinator for the Northwestern Indiana Regional Planning Commission.

Easterly — who lived in Valparaiso and worked at Bethlehem Steel before taking the IDEM job a year ago — said the agency is trying to determine how many regional offices it needs. It has three now, in Merrillville, South Bend and Petersburg.

Still More on Boilers. The Louisville Courier Journal has an AP story about IDEM extending the comment period for outdoor wood boilers (see earlier ILB entry here). Some quotes:
Four legislators from southern Indiana, however, expressed concerns that the proposed regulations could harm rural residents who rely on wood for heat.

"Today it is outdoor wood-burning stoves. Tomorrow it could be fireplaces," state Rep. Eric Koch, R-Bedford, told The Herald-Times for a story Friday.

Reps. Vern Tincher, D-Terre Haute, and Jerry Denbo, D-French Lick, and state Sen. Brent Steele, R-Bedford, say they also are concerned. Steele has been running radio ads to try to raise awareness and draw more public comment.

Posted by Marcia Oddi on Friday, January 06, 2006
Posted to Environment

Ind. Gov't. - David Brooks' recommendations for congressional reform

Conservative op-ed NY Times columnist David Brooks had an important column Thursday in the Times that is reprinted in today's Indianapolis Star. However, only "TimesSelect" members can read the Times' columnists online, and the Star, perhaps for a related reason, prints the column but does not post it.

The column IS available here, via the Detroit Free-Press. The Star headlined the column "Seven steps to reform that Republicans must take." The Times headed it "Saving the House." The Free-Press title: "Running from corrpution."

A quotes:

If Republicans want to emerge from this affair with their self-respect or electoral prospects intact, they need to get in front of it with a comprehensive reform offensive.
A number of suggestions follow. Many of them are changes that should have been made regardless of whether or not there was an Abramoff, and regardless of which party ran, or will run, the House.

My thought
while reading the column was that several of Brooks' suggestions might well be considered by the Indiana legsislature. To quote Brooks again:
Former members should not be allowed to lobby on the House floor.

All lobbyist contacts with government officials should be posted on the Internet. * * *

There's bound to be corruption when members are forced to vote on sprawling bills nobody has a chance to inspect. Instead, all legislation should be posted online for 72 hours before the vote, so the staff and bloggers can nitpick and expose.

Former members used to be able to lobby on the Indiana House floor -- I don't know if that is still the case.

Posting lobbyist contacts with legislators on the internet within 24-hours of the contact could result in a vivid inside picture of how government works.

Posting final bills (and that includes conference committee reports) on line 72-hours in advance of voting could allow meaningful and direct public involvement in the lawmaking process.

Posted by Marcia Oddi on Friday, January 06, 2006
Posted to Indiana Government

Ind. Gov't. - Interesting look at IEDC policy

The Gary Post-Tribune reports today, in a story by Michelle Quinn:

HAMMOND — Gov. Mitch Daniels absolutely wants Cabela’s to come to Indiana, but the state won’t be paying the store’s asking price to do it.

According to the Indiana Economic Development Corp., retail businesses move money only from place to place instead of bringing new money into the economy, Daniels said. He was the speaker Thursday during The Lakeshore Chamber of Commerce’s Business After Hours event at Horseshoe Casino.

While sporting goods stores Cabela’s and the proposed Bass Pro Shop in Portage have the potential to bring millions of dollars into the state, allowing them both to have sales increment tax financing (STIF) — which is on the books but has never been used in Indiana, according to Daniels — would cost more than it’s worth.

“Both companies asked for identical amounts of money, and the (IEDC) didn’t like it,” he said. “The IEDC has measured the cost benefits of spending the money vs. the return, and we don’t do retail.”

Daniels also said Indiana has another sporting goods entity, Gander Mountain, that never asked for the amounts of money Cabela’s and Bass Pro Shop have.

“We’d love to see them both come to Indiana, and we plan to entice them with other tools. But we don’t know how we can offer them 10 or 20 times more (than Gander Mountain received),” Daniels said.

Posted by Marcia Oddi on Friday, January 06, 2006
Posted to Indiana Government

Ind. Gov't. - County comissioners' "snubbing public access" should end

The Fort Wayne Journal Gazette editorializes today against a practice in Allen and perhaps other counties, passing a resolution to meet in continuous session:

At the start of each year, the commissioners pass a similar resolution that says whenever the commissioners are in the office, they are meeting and able to conduct business.

The resolution allows the commissioners to make decisions and take actions that affect the citizens of Allen County without notifying the public beforehand. It is a shameful way to skirt Indiana’s open meeting law.

The Indiana Public Access Counselor’s office has ruled very clearly – and more than once – that such resolutions are contrary to the state’s Open Door Law. And yet, the commissioners persist in flouting the law and showing an alarming disrespect for the public’s right to know.

The resolution makes it impossible for the public to know what is going on with county government unless a person haunts the commissioners’ office at every moment. Unless residents have the time and willingness to stalk the commissioners, they have little assurance of knowing what is going on in county government.

County government has a confusing structure. And the dual legislative and executive branch powers the commissioners have make it more challenging for citizens to monitor county government as compared with city or state government. The commissioners therefore have an even higher burden to ensure their actions are transparent to the residents they serve.

Posted by Marcia Oddi on Friday, January 06, 2006
Posted to Indiana Government

Ind. Law - Daniels backs state-wide telecommunications deregulation

"Daniels backs deregulation of phone, cable service" is the headline of a story by Lesley Stedman Weidenbener in today's Louisville Courier Journal. Some quotes:

Gov. Mitch Daniels said yesterday that he supports legislative efforts to scrap most regulation of local phone service and to provide incentives to encourage the spread of high-speed Internet access across Indiana.

"A regulatory approach that grew up in the age of telephone poles and above-ground wires, what were thought of as actual monopolies, is just not suited to today's exciting world of exploding technology, new inventions, multiple choices and options," Daniels said. * * *

Daniels said yesterday that his administration has "been working quite closely" with the bill's authors.

"The bill has a lot of features that I agree with," Daniels said. "I'm going to work with them closely to shape it."

For more, see yesterday's ILB, "State-wide telecommunications deregulation the focus of many stories today."

Posted by Marcia Oddi on Friday, January 06, 2006
Posted to Indiana Law

Thursday, January 05, 2006

Ind. Courts - Status of Randolph County Courthouse demolition

The last ILB report on the endangered Randolph County Courthouse was dated Dec. 6th and titled "More bad news re Randolph County Courthouse: Commissioners say 'It's time to move on with demolition'."

Today Rachael Zdyb of Newslink Indiana reports:

WINCHESTER, Ind. (NLI) - It's been eight months since a 2-1 vote to tear down the 128-year-old Winchester Courthouse. And still the building remains standing. * * *

One problem [Commissioner Drew Wright] has run into - relocating courthouse employees. The initial plan was to move into an old Wal-Mart on the east side of town, but that option has been postponed because another buyer purchased the building. But Wright said there are other options.

"We've also looked at the old Carter Lumber building, had some discussion with the Whitley company and handling it and of course we've looked at scattering the offices throughout downtown business offices," Wright explained.

Since there hasn't been any progress with the demolition plans, Wright said residents are beginning to wonder when things will start to happen again.

"I really hope that that happens real soon," he said. "I would love to see it happen in our next meeting but I think even if we make the motion to continue those discussions in the next meeting, that we should probably wait till the next meeting after that."

But for now, the courthouse will continue to stand in the center of the town until a new location for employees is found and a demolition date is set.

The story includes photos of the possible relocation sites.

Posted by Marcia Oddi on Thursday, January 05, 2006
Posted to Indiana Courts

Ind. Courts - Rep. Dick Dodge of Pleasant Lake is authoring legislation to allow counties to use money from JTAC in order to update databases containing information on criminals; Update on status of JTAC

Here is the report from WLKI, Angola:

(INDIANAPOLIS) - As the State House of Representatives began its 2006 Legislative Session yesterday, Republican Representative Dick Dodge of Pleasant Lake is authoring legislation to allow counties to use money from the Judicial Technology Automation Committee in order to update databases containing information on criminals. The state is hoping to move to a database system that would be compatible among all counties around Indiana. Dodge says some counties are keeping track of criminal information on seriously outdated systems.
So far, Rep. Dodge's bill is not available. Here is the list of bills he has introduced.

And what of JTAC? The last ILB report on JTAC was from Oct. 26, 2005. A few days earlier JTAC had posted a notice: "In order to determine the best way to proceed, the Court has decided first to gather information systematically on recent developments in case management systems in general and case management systems technology in particular."

So what has happened since? There is little new about the "plan to link 400 courts" on the JTAC website. The Fall 2005 JTAC newsletter gives more detail about the gathering of information on case management systems (CMSs), which concluded a month ago, but gives no indication of the new step in this project that has been ongoing for a number of years.

JTAC prepared a technical and business questionnaire, consisting of 197 questions with 18 detailed scenarios that covered everyday tasks encountered by the courts' and clerks' offices. The questionnaire and scenarios were distributed to identified national and Indiana vendors, and any other interested vendor was invited to respond. After the responses were collected, vendors made day-long presentations to JTAC members, staff, and other stakeholders. The schedule for the vendors (with pertinent information disclosed by the vendors) follows:
  • November 15 Marion County court staff and Daniels and Associates—JUSTIS.Net.
  • November 18 Maximus—home office in North Canton, OH; 4,800 employees with 108 in the Justice Solutions Division; 2004 Annual Revenue of $600 million; 260 clients with over 17,500 current users; and 21 years experience in court case management.
  • November 21 ACS—home office in Lexington, KY; 53,000 employees; 2004 Annual Revenue of $40 billion; products in use in 1,300 courts; and 16 years experience in court case management.
  • November 22 CSI—home office in Fishers, IN; 15 employees, all devoted to CMS product; Annual Revenue of $1.2 million; over 2,000 current users; and 20 years experience in court case management.
  • November 28 AmCad—home office in Reston, VA; 40 employees; and 10 years experience in court case management.
  • November 29 Gottlieb & Wertz [Quest]—home office in Indianapolis, IN; 2 employees; over 5,000 current users; and 16 years experience in court case management.
  • November 30 Tyler Technologies—home office in Dallas, TX; 1,400 employees with 250 employees devoted to court-related products; Annual Revenue of $150 million; over 6,500 current users; and 25 years experience in court case management.
  • December 8 Deloitte & Touche USA — home office in New York with an Indiana office located in Indianapolis; 30,000 US employees with approximately 100 court consultants; approximately 20,000 users of the various court case management solutions they've provided; 10 years of experience delivering court-related products.
Following the conclusion of the demonstrations, the Court will announce whether it will begin a formal procurement process or take other steps toward achieving its statewide case management system vision.
For the ILB observations, see "What does this mean?" at the end of the Oct. 26th entry.

Posted by Marcia Oddi on Thursday, January 05, 2006
Posted to Indiana Courts | Indiana Government | Indiana Law

Law - New Hampshire rules on accessibility of financial information in divorce records

An ILB entry from June 18, 2004 explored various aspects of whether divorce records are public documents.

Included was the Court of Appeals decision in Ernst & Young v. Indianapolis Star (6/14/04), which involved:

parties who intervened in the dissolution proceedings to address the key issue of whether the Indiana Access to Public Records Act, Indiana Code §§ 4-14-3-1 to -10 (“the Public Records Act” or “the Act”) [Note - this should be 5-14-3 etc.] , permits a trial court to seal public records—which fall within a mandatory exception to the public access provisions of the Act—after those records are admitted into evidence at trial. Based on the plain and clear meaning of the Public Records Act, we conclude that the Act permits the trial court to seal public records that fall within a mandatory exception to the Act either before or after they are admitted into evidence. We also conclude that this is a right that a party can waive.
Today the website of The Reporters Committee for Freedom of the Press has a story about an end of the year decision by the Supreme Court of New Hampshire. Some quotes:
Jan. 4, 2006 · The Supreme Court of New Hampshire on Friday struck down part of a law that withheld financial affidavits in divorce cases unless the public interest outweighed the privacy interest in keeping the information secret.

The section of the law is unconstitutional because it requires the proponent of disclosure to prove the public's interest in the records' release, Justice James E. Duggan wrote for the court. It also shuts down the public's right of access to a category of court records, and is not written narrowly enough "to serve the allegedly compelling interest of the State in protecting its citizens from identity theft," he wrote.

New Hampshire is one of only a few states whose constitution explicitly provides a right of access to court proceedings and records. * * *

The ruling came after The Associated Press, five newspapers, the New Hampshire Association of Broadcasters and WMUR-TV asked the high court to review a lower court's decision rejecting their petition to declare the law unconstitutional.

The law at issue, Section 458-15b, concerns financial affidavits filed in annulment, divorce and separation proceedings. Part I makes financial affidavits filed in such proceedings accessible only to a limited group of people, including the parties and their attorneys. Part II penalizes anyone who discloses an affidavit to someone unauthorized to view it. Part III requires citizens seeking access to affidavits to show that the public interest in the information outweighs the interest in keeping it secret.

William Chapman, an attorney for The Associated Press, argued in his appellate brief that the law "encroaches on the Judiciary's control of domestic relations proceedings by mandating that financial affidavits be confidential. The requirement of presumptive confidentiality contradicts the Court's interpretation of the New Hampshire Constitution and undermines its historic commitment to open judicial proceedings and public accountability. In addition, by imposing a penal sanction on the unauthorized disclosure of financial affidavits, the Legislature has created an impermissible prior restraint on publication of lawfully obtained truthful information."

The court upheld the first two parts of the law, ruling that it is not unconstitutional to require courts to make the records confidential when they are filed, so long as the public may petition for access to the documents, or to penalize improper disclosures of the confidential records.

Here is the decision, The Associated Press v. The State of New Hampshire.

Posted by Marcia Oddi on Thursday, January 05, 2006
Posted to General Law Related

Ind. Decisions - Another 7th Circuit immigration ruling reversing and remanding

In Giday v. Gonzales, a 23-page opinion issued today, Judge Rover (on a panel including Posner and Manion) writes:

Selemawit Giday requests asylum in this country, claiming that the government of the country of Eritrea, where she was born and raised, persecuted her due to her mixed Ethiopian and Eritrean ancestry. An immigration judge deemed her testimony not credible and found, in the alternative, that she had failed to establish that she met the criteria for refugee status. The Board of Immigration Appeals (BIA) affirmed and adopted the opinion below rejecting Giday’s appellate claim that the immigration judge below had denied her due process of law. Because, among other reasons, we find that the immigration judge’s credibility determinations were not supported by cogent reasons bearing a legitimate nexus to the finding, we reverse and remand this case for further proceedings. * * *

On remand, the immigration judge will need to consider the most recent version of the Country Report to determine whether, in fact, Giday’s fear of future persecution should be allayed. Then too, will the immigration judge be able to re-assess the probability of persecution as required for a determination on Giday’s request for withholding of removal and Convention Against Torture relief.

This matter is REVERSED and REMANDED for proceedings consistent with this opinion.

Posted by Marcia Oddi on Thursday, January 05, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court rules on sudden emergency doctrine

In Willis v. Westerfield, a 12-page opinion issued today, Justice Boehm writes:

We hold that the common law sudden emergency doctrine is not an affirmative defense within the meaning of Indiana Trial Rule 8(C) that requires affirmative defenses to be pleaded in a defendant’s answer. We also hold that in cases where the defendant seeks a failure to mitigate damages instruction based on a plaintiff’s failure to follow a treating doctor’s recommendations, whether expert medical opinion testimony is required is to be determined on a case-by-case basis. * * *

Transfer is granted. The judgment of the trial court as to liability is affirmed. The judg-ment as to damages is vacated and this case is remanded for a new trial on the issue of damages only. Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.

See also this ILB entry from Dec. 31, 2005, commenting on this case, which was on last week's transfer list.

Posted by Marcia Oddi on Thursday, January 05, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Auction gone bad winds up in court: sellers wanted to keep part of land

"Auction gone bad winds up in court: sellers wanted to keep part of land" was the headline to an AP story (still accessible) in the Nov. 6, 2005 Evansville Courier& Press, cited in this ILB entry.

Yesterday the Louisville Courier Journal carried this story by Grace Schneider headlined "Palmyra auctioneer ordered to pay for couple's lost land: Reserved parcel sold in purchase of farm." Some quotes:

A Harrison County judge blasted a Palmyra auctioneer in a recent court ruling involving the sale of a 58-acre farm.

And the upshot is that auctioneer Barry Brewer has been ordered to pay a New Albany couple $16,741 plus court costs for slightly more than five acres that they meant to set aside when Brewer auctioned their farm and home near Elizabeth two years ago.

Although the couple can't get the land back, Harrison Circuit Court Judge H. Lloyd "Tad" Whitis decided that the fair value of Carolyn and Roger Ehalt's lost 5.6 acres was $16,741 plus initial court costs, which he ordered Brewer to pay. * * *

Whitis' ruling follows a bench trial Nov. 2 involving the historic property along the Ohio River in southern Harrison known as Sugar Grove. The farm at 5969 Ind. 111, about two miles south of the Caesars casino complex, was a popular dance hall and amusement park in the early 1900s, according to local historical accounts.

The Ehalts had lived there 20 years when they enlisted Brewer, who also is a postal worker in New Albany, to auction the real estate and a tractor and other farm equipment.

The couple recounted in court and in a lawsuit filed in March 2004 that they had discussed their plan with Brewer to reserve a parcel of property to give to Carolyn Ehalt's son.

But the sale agreement didn't reflect the reserved parcel. And the couple said they were forced to sell the entire property for $178,000 -- which included $5,000 that the buyer provided to smooth over the dispute involving the reserved property. * * *

Whitis agreed in his ruling that Brewer's actions and omissions amounted to "professional incompetence" and that the Ehalts were damaged as a result.

The judge noted, for instance, that Brewer and Roger Ehalt didn't sign an original sale contract until the day of the auction and that there should have been plenty of time for Brewer to include language about the reserved parcel in a "fill-in-the blanks" sale agreement.

Brewer "placed himself in a position of liability" by acknowledging before the bidding started that not all of the property would be sold. But then he failed to include the terms in a document he filled out and had the Ehalts sign, Whitis wrote.

I am trying to obtain a copy of the opinion; if successful, I will post it here.

Posted by Marcia Oddi on Thursday, January 05, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Law - Crown Point big box zoning law won’t deter developer

"Crown Point zoning law won’t deter developer" is the headline to a story today by Pamela Lewis Dolan in the Gary Post-Tribune. Some quotes:

CROWN POINT — New zoning laws aimed at keeping big-box retail out of the city apparently hasn’t deterred Lauth Development Group.

The Indianapolis company said Wednesday it still plans to purchase the 50-acre site at Interstate 65 and U.S. 231 for a shopping center. The company’s initial site plans were denied after it was revealed Wal-Mart was being considered as an anchor.

“Lauth Property Group still intends to buy the property ... as such, we will continue to work with the city of Crown Point and Mayor Dan Klein about a mutually beneficial project,” said Joe Downs, Lauth’s vice president of retail development.

Klein and Economic Development Director Frank Mosko traveled to Indianapolis on Wednesday at Lauth’s request. * * *

The meeting came a day after the City Council gave final approval to its new development guidelines. Under the guidelines, commercial buildings should not be over 65,000 square feet. The recommendation, however, contradicted a recent change to the zoning code, which defines big-box retail as 75,000 square feet and requires special use zoning.

The City Council sent the zoning code back to the Plan Commission to change the big-box definition to 65,000 square feet. When asked whether Lauth is now expected to eliminate big-box stores from the site, Klein said, “It remains to be seen.”

While the City Council was strongly opposed to Lauth’s plan to bring in Wal-Mart, it was the new zoning code that was cited as the reason for the denial of Lauth’s site plans last month. Lauth’s initial plans included two big box stores, one more than 88,000 square feet, the other more than 203,000 square feet.

The ILB has had a number of entries on "big box" zoning.

Posted by Marcia Oddi on Thursday, January 05, 2006
Posted to Indiana Law

Ind. Court - Did an Allen County prosecutor violate a local man’s rights by excluding him from a jury partly because he is a pastor?

Niki Kelly of the Fort Wayne Journal Gazette reports today on an oral argument yesterday before the Indiana Supreme Court. Her report begins:

INDIANAPOLIS – The Indiana Supreme Court on Wednesday considered whether an Allen County prosecutor violated a local man’s rights by excluding him from a jury partly because he is a pastor.

The case originally contested whether he was kicked off because he was black – the only black who appeared for jury duty.

But the prosecutor – in trying to show a race-neutral reason for the dismissal – complicated matters by bringing religion into the mix.

“I don’t think you will ever eliminate prejudice in the courtroom,” said Fort Wayne attorney P. Stephen Miller, who argued the case on behalf of his client. “The best you can do is control it.”

The Indiana Court of Appeals last year essentially established new law in the case by extending the protections against race and gender discrimination in jury selection to religion. The five justices of the Indiana Supreme Court heard arguments to consider whether the first-time, lower-court ruling should stand.

The discussion pertains to the Allen County case of Marshall Highler, in which the appellate court found the U.S. Constitution prohibits the exercise of attorneys using automatic challenges to kick off potential jurors because of their religious affiliation.

Specifically, the ruling said Allen County Deputy Prosecutor Stacey Speith acted improperly when she told the judge she was excusing Herbert Coats, senior pastor at 1st Redeemed by the Blood Church in Fort Wayne, partly because “I never take any pastors, ministers, reverends or priests on my jury panels just because they’re more apt for forgiveness.”

Watch the Jan. 4th oral argument in Marshall Highler v. State here, at the Court's Oral Arguments Online site. Here is the summary from the Cuorts site:
Appellant Marshall Highler was charged with rape as a Class B felony. Before his trial, during voir dire, the prosecutor used a peremptory challenge to strike an African-American pastor from the jury. Highler objected based on Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting peremptory challenges based on race). The trial court overruled the objection after the prosecutor presented race-neutral reasons for the challenge, which included but were not limited to the potential juror’s being a pastor. The Court of Appeals affirmed. Highler v. State, 2005 WL 2233577, --- N.E.2d --- (Ind. Ct. App. Sept. 15, 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. The Court has asked the parties to focus their oral presentations on the extension of Batson to peremptory challenges based on religion, and the application of that extension to the facts of this case.
Here is the now vacated Court of Appeals opinion.

Posted by Marcia Oddi on Thursday, January 05, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Law - State-wide telecommunications deregulation the focus of many stories today

"Telecom rules under scrutiny: Renewed effort to change regulation adds cable to mix" is the headline to a story in the Indianapolis Star Business section by Michele McNeil and J.K. Wall. Some quotes:

How much Hoosiers pay for local phone service, cable television and high-speed Internet access could be shaped by lawmakers who are pledging to reform Indiana's 20-year-old telecommunications law.

By 2009, state regulators no longer would be in charge of setting prices and service quality for telephone companies under sweeping deregulation legislation unveiled at the Statehouse on Wednesday, the first day of the 2006 session.

The proposal is Senate Bill 245. More, from the sidebar:
Here are highlights of Senate Bill 245 as outlined by telephone companies and consumer groups:

• Would free telephone companies from most state regulation starting in 2009.

• Between now and 2009, telephone companies could raise their rates by $1 per month if they pass the following test: They must provide high-speed broadband to 50 percent of their customers.

• The Indiana Utility Regulatory Commission would collect and distribute information about service quality.

• Property tax breaks would be available for companies that expand broadband access.

• Local governments no longer would control cable television franchise agreements; the Indiana Utility Regulatory Commission would do it.

• Municipalities like cities and towns couldn't use taxpayer money to build their own broadband networks if there are private companies willing to do it.

Niki Kelly of the Fort Wayne Journal Gazette has this story headlined "Bill could overhaul phone, cable service." Some quotes:
The comprehensive 78-page bill focuses on a handful of major areas. It first deregulates basic phone service in 2009. In the meantime it allows phone companies to increase fees slightly if they provide broadband access to at least 50 percent of their customer base in each phone exchange.

Next, the legislation creates statewide franchising authority for video programming. Currently cable providers negotiate franchise agreements with individual communities, and this would cut out that layer of negotiating, theoretically making it easier for other entities to enter the field and offer the service.

The bill also encourages infrastructure investment by the private sector by creating local property tax abatements. In addition, it discourages municipal ownership of broadband networks.

“It can be done with taxpayer dollars but we view that as a last resort rather than a first,” said Hershman, who also said nationally 50 percent of municipally owned broadband networks fail to break even.

A last major component of the bill would allow the IURC to collect and distribute information on service quality of a particular company so consumers can make better choices.

From an Evansville Courier& Press story by Jennifer Whitson:
The bill would:

Allow phone companies to raise prices if they offer broadband services to at least half of the customers in a given exchange. Then by 2009, phone service, including rates, would be completely deregulated.

Exempt cable companies from negotiating local deals to provide video services. Instead a statewide deal would be negotiated and companies would just have to apply to the state to enter new markets.

Place controls on local units of government that want to build a publicly funded broadband network. Under it, cities would have to first publish their intent to set up a broadband system and allow any private companies to provide the service instead.

Lesley Stedman Weidenbener has a lengthy story in the Louisville Courier Journal, including:
The bill's lead author, Sen. Brant Hershman, R-Monticello, said the law would provide consumers with greater choice and greater price competition while modernizing state law.

"Indiana's telecommunications laws were last updated in 1985 when a Blackberry was just a fruit and Google was just a very large number," Hershman said. "It's time to modify our laws so that the free market can drive down prices for consumers."

But consumer advocates say the bill is bad for customers and unnecessary because state regulators have been adjusting their rules to accommodate changes in the telecommunications industry.

"The idea of the legislation is to deregulate the local phone market so they can jack rates up and get the revenue and provide services under cost so they can run out the competition," said Grant Smith, executive director of the Citizens Action Coalition.

The bill would strip the Indiana Utility Regulatory Commission of nearly all its authority to oversee local phone service in 2009. It would leave the agency with the power to enforce only the most basic rules, such as those that prevent companies from signing a customer up for service without their permission.

The proposal comes just a month after the commission decided unanimously that competition in the state had not developed enough to eliminate oversight of the companies and let the market take over.

Under Hershman's bill, most telecommunications-related consumer-protection services would be transferred from the regulatory commission and the Indiana Utility Consumer Counselor to the attorney general's office. * * *

Similar legislation has died in previous legislative sessions, typically in the Senate where President Pro Tem Robert Garton, R-Columbus, has been reluctant to deregulate the industry. The regulatory commission's former chairman, Bill McCarty, also actively opposed such sweeping proposals.

But McCarty is gone, and it's not clear whether new chairman David Lott Hardy will be as active at the legislature. Yesterday, commission spokeswoman Mary Beth Fisher said the bill "begins an important debate."

And Garton's strong desire to expand high-speed Internet service to smaller towns and rural areas of the state seems to have tempered his opposition to deregulation.

Posted by Marcia Oddi on Thursday, January 05, 2006
Posted to Indiana Government | Indiana Law

Wednesday, January 04, 2006

Ind. Law - Still more on IDEM's request for comments on whether and how to regulate outdoor wood-fired boilers; Bedford paper speaks out against the Indiana Register

Updating the ILB entry from Jan. 2, here is a press release from IDEM, announcing that it has extended the deadline for its 1st comment period on consideration of outdoor wood boiler rules from Jan. 3rd to March 3rd. Some quotes from the release:

The Indiana Department of Environmental Management (IDEM) invites the public to take advantage of an extended comment period for the first rule notice about outdoor wood boilers. The new deadline for written public comment is March 3, 2006. The potential rule will not regulate wood-burning fireplaces, indoor stoves or pellet stoves.

The United States Environmental Protection Agency (U.S. EPA) already regulates indoor stoves to control air emissions. No regulation currently exists for emissions from outdoor wood boilers. Complaints from citizens and a growing number of outdoor wood boilers sold in Indiana have prompted IDEM to explore the need for State regulations.

The extension of the comment deadline is due to high interest and misunderstanding of the topic. The end of this comment period is not the final chance for citizens to weigh-in on the issue. * * *

Outdoor wood boilers are free-standing, shed-sized units that provide heat and hot water to one or more structures. Typically the boilers burn wood to heat a reservoir of water, which underground pipes carry to water heater and furnace units inside the structure.

The boilers slow wood combustion by burning it at low temperatures, which results in less overall efficiency and increased smoke, fine particulate matter (PM2.5) and volatile organic compounds. The U.S. EPA found that outdoor wood boilers average 50 percent efficiency compared to the 80 percent average of other modern furnaces.

The Bedford Times-Mail editorializes today against the Indiana Register -- see this ILB entry from Dec. 29 quoting another Bedford media source as reporting "IDEM had more or less kept their comment period a secret."

Some quotes from today's Bedford editorial:

Such rules are proposed in a publication called the Indiana Register. It's thick. There's no way a newspaper, for example, could print it all. The rules are complicated. And there's no easy way for ordinary Hoosiers to learn about all of the proposed rules that might affect them.

Consider the way Sen. Brent Steele, who burns wood for heat himself, learned of the proposed rule. Steele is a lawmaker and a lawyer. His research, though, proved fruitless until a legislative assistant mentioned that it might be a proposed rule change.

In addition, the current system plays favorites. Companies with deep pockets can pay lobbyists and lawyers to keep an eye on the Indiana Register. Ordinary citizens cannot.

Against those odds, Hoosiers don't stand a chance. We need to find a better way to keep up with, and become involved in, our own government.

Posted by Marcia Oddi on Wednesday, January 04, 2006
Posted to Indiana Law

Ind. Gov't. - How the House of Representatives began its 2006 session [Updated]

The Indiana House of Representatives convened today at 1:30 p.m. The ILB was watching, via the legislature's "Watch Video of the General Assembly Online" service, to see whether Speaker Bosma would defy Judge Hamilton's order.

No way to tell. The session apparently began, the Speaker was speaking from the podium, in a close-in shot, but there was no sound. Rep. Bauer was speaking, from a floor mike, but there was no sound. Soon there was no picture either, and instead of a test-pattern (remember those) there was a notice announcing the December 2005 Ways & Means Committee meeting dates.

It is now more than an hour later and still no sound, and no picture except for the W&M sign.

The Indianapolis Star has just posted a story that doesn't mention the much-promoted video service, but does report "Small group of lawmakers huddle in prayer." It begins:

About 20 House members gathered at the rear of the chamber today minutes before the opening of the session and held a prayer.
[Updated] Noticing that no other bloggers or newspapers reported on the lack of audio in the internet video of today's House session, the ILB thought to check it out on another computer. And yes, there was audio after all! My mistake!

Posted by Marcia Oddi on Wednesday, January 04, 2006
Posted to Indiana Government

Ind. Law - 7th Circuit issues interesting ruling involving federal Individuals with Disabilities Education Act

In Mosely, Lillian L. v. Chicago Board, Judge Wood writes:

For the better part of two years, Lillian Mosely fought the efforts of the Chicago Public Schools to place her son Melvin in a special education class. She was not satisfied with the treatment Melvin was receiving; moreover, as she saw matters, her efforts led the Board of Education of the City of Chicago to retaliate against her in a number of ways. Mosely eventually sued under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq., complaining about Melvin’s treatment and the procedures the schools had used, and under 42 U.S.C. § 1983, asserting that her own civil rights had been violated through the Board’s retaliatory acts. The respective district court judges to whom these two cases were assigned each dismissed them: the IDEA case on grounds of lack of exhaustion of administrative remedies, and the retaliation case for failure to state a claim on which relief could be granted. Mosely has appealed. With the able assistance of amicus curiae recruited by this court to explore the issues Mosely presented pro se in the district court, we have concluded that these dismissals were premature. We therefore remand both cases to the district court for further proceedings.

Posted by Marcia Oddi on Wednesday, January 04, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Arbramoff scandal hits close to home

Gary R. Welsh of Advance Indiana reports today on the Abramoff lobbying scandal and how the investigation may also ensnare two high-powered lobbyists employed by a major Indianapolis law firm in its Washington office.

Posted by Marcia Oddi on Wednesday, January 04, 2006
Posted to Indiana Law

Law - End to election law standoff in Kentucky: Stephenson resigns

The Louisville Courier Journal reports today:

Dana Seum Stephenson gave up her yearlong battle to represent Jefferson County's 37th Senate District by resigning from a post without ever serving, clearing the way for a special election, possibly in February.

In a 1½-page letter, Stephenson said the legal impasse would hamper the legislative process if she didn't resign. She criticized the courts and the media, "who have tried to vilify my character."

"In keeping with what I feel is best for the people of my district, it is my duty to step down," she wrote, adding that she leaves with her integrity intact

Senate President David Williams said he would call for a special election as soon as the possibility ends for Stephenson's Democratic opponent, Virginia Woodward, to appeal a Supreme Court ruling in the case that said neither Woodward nor Stephenson could be seated.

Woodward's lawyer, Jennifer Moore, said her client has no plans to appeal and called on Williams to order the special election immediately.

The parties would decide who would run in a special election, which couldn't be held before Feb. 14.

Stephenson, whose residency was at the center of the challenge, said in an interview that she wouldn't run. Woodward has said she would "be honored" to be the Democratic candidate and plans to ask Democratic legislative district chairmen to select her.

For background, start with this Dec. 22nd ILB entry, and this one from Dec. 23rd.

Posted by Marcia Oddi on Wednesday, January 04, 2006
Posted to General Law Related

Courts - Running for Judge in Illinois: Judicial hopefuls balk at questionnaire

"Judicial hopefuls balk at questionnaire" is the headline to a story today in the Chicago Sun-Times, that indicates a twist on a theme. Some quotes:

It's common for U.S. Supreme Court nominees to face questions about hot-button topics such as abortion, but a local liberal group is now causing a stir by asking dozens of Cook County judicial candidates about that and other issues.

"Without appearing to commit yourself with respect to cases, please 'announce' your position concerning the right of a woman to have an abortion," a questionnaire from the Independent Voters of Illinois-Independent Precinct Organization asks Democratic and Republican hopefuls for judge in the March primary. * * *

The current questionnaire quotes from a 2003 U.S. Supreme Court case that allows candidates for judge to "announce" their positions on hot-button topics. Some candidates, however, feel Illinois' Code of Judicial Conduct holds candidates to a higher standard than the U.S. Supreme Court case. * * *

Judges may opt not to answer the questions, but the survey warns candidates who take that route "may adversely impact your endorsement application."

The twist is that this questionaire comes from "a local liberal group." The Supreme Court case referenced is Republican Party of Minnesota v. White.

For background, see this ILB entry from 3/23/05 ("Running for judge in North Dakota"), which includes this quote from a press release bfrom James Bopp, Jr, Terre Haute attorney:

A North Dakota federal court held yesterday 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. * * *

According to James Bopp, Jr., lead counsel for the plaintiffs, the North Dakota rules “contradict the U.S. Supreme Court’s decision, which clearly stated that judicial candidates have a right to respond to surveys like this and that voters have a right to hear what they have to say.” Bopp, who argued the case challenging the Minnesota judicial rule struck down by the U.S. Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), stated that North Dakota’s rules and policy were being interpreted to “cover the same unconstitutional ground” as Minnesota’s rule that prohibited judicial candidates from announcing their views had done.

However, this ILB entry from Nov. 27th ("Running for judge in Pennsylvania") reports that a similar challenge to the Pensylvania Canons of Judicial Conduct was rejected on standing and ripeness grounds. The entry also notes that a similar challenge to the Indiana Canons, Right to Life v. Shepard, is still pending.

Posted by Marcia Oddi on Wednesday, January 04, 2006
Posted to Indiana Courts

Law - The evolution of indictments from bare bones filings to story-telling narratives

The Washington Post today has a fascinating article by Mark Leibovich headlined "Legal Literature: Plot, Character, Action!-- Abramoff Documents, Latest in the Genre." Some quotes:

But today, we are focused on the Abramoff oeuvre. The lobbyist reached a plea bargain agreement with the Department of Justice, pleading guilty to charges of conspiracy, mail fraud and tax evasion. So yesterday's contribution to the canon was not an indictment per se, but rather a "criminal information" released by the department, followed by a plea bargain that was signed by Abramoff. Either way, same basic genre.

"There's been quite an evolution of indictments as a narrative in the time I've practiced law," says Scott Turow, a lawyer and best-selling novelist. Before, Turow says, "the indictment tended to be pretty bare bones."

"It's hardly literature," Turow acknowledges, although he had yet to read the Abramoff document. But it's all relative. There was a time when a prosecutor might have issued an indictment of, say, Libby, in two pages. Just lay out what he said to the grand jury and be done with it. Instead, Special Prosecutor Patrick Fitzgerald did it in 22 pages. It was a public relations device, Turow says, widely quoted in the press.

"This is not the traditional straitjacket language of lawyers," Turow says. "There is a story being told. It might not read with the passion of Tolstoy. But there are moments when it can read like Hemingway."

The Abramoff document is rich with distinctive touches and the potential for character development. Not as rich as Abramoff in the best of times, but rich nonetheless. Consider: * * *

Literary flourishes. "I love the term 'stream of things of value,' " says Tim Grieve, a senior writer for Salon who practiced law for several years. He is referring to a phrase that first appears on Page 9, Paragraph 22, of the charging document. It precedes a list of the various things Abramoff gave Representative #1 and members of his staff ("including but not limited to a lavish trip to Scotland to play golf on world-famous courses, tickets to sporting events. . . .").

Sequel option. Abramoff was nothing if not remorseful as he addressed the court yesterday. "Your honor, words will not be able to ever express how sorry I am for this, and I have profound regret and sorrow for the multitude of mistakes and harm I have caused," he said.

He also made this statement at the conclusion of his plea bargain that, Grieve points out, makes a tidy cliffhanger.

"The preceding statement is a summary, made for the purposes of providing the court with a factual basis for my guilty plea to the charges against me," Abramoff writes. "It does not include all the facts known to me concerning criminal activity in which I and others engaged."

Here is the Abramoff document, courtesy of TalkLeft.

Posted by Marcia Oddi on Wednesday, January 04, 2006
Posted to General Law Related

Ind. Law - Guidant sued over J&J merger offer

"Guidant sued over J&J merger offer" is the headline to an interesting story by Jeff Swiatek in the Business Section of today's Indianapolis Star. Some quotes:

Guidant Corp. executives and directors are putting their own interests ahead of shareholder interests if they continue to recommend the less lucrative of two takeover offers, according to a lawyer who is suing Guidant officers.

Some shareholders want a federal judge to rule on whether Johnson & Johnson, which is offering $21.5 billion for the Indianapolis company, can rightfully give Guidant directors and top executives legal protections from a mounting wave of lawsuits and investigations over product problems.

The legal protections pledged by Johnson & Johnson could be worth millions of dollars to Guidant's officers and might pose a conflict of interest as they consider a competing offer from Boston Scientific Corp., the shareholders argued in a motion to Judge Sarah Evans Barker. * * *

Last week, Guidant's board unanimously recommended that shareholders approve the J&J offer and set a shareholder vote for 10 a.m. Jan. 31 at its Downtown Indianapolis headquarters. * * *

Guidant said its board has determined that a merger with J&J "is in the best interest of Guidant and its shareholders," according to a letter to shareholders from Chairman and Chief Executive Officer James Cornelius that was included in a filing with the Securities and Exchange Commission.

But San Diego attorney Darren J. Robbins, who represents the Alaska Electrical Pension Fund and several other shareholders, takes issue with that, pointing to J&J's legal protections. The protections "are provided as inducements to these directors. You can imagine it was at the front of their minds" as Guidant's board negotiated the deal with Johnson & Johnson, Robbins said.

"No wonder they were willing to sacrifice shareholders' interest" in approving the deal, Robbins said Tuesday. Robbins has asked Barker to hold up the merger to weigh the legality of the legal protections and other parts of the deal.

Under the merger agreement with Johnson & Johnson, Guidant executives and directors would receive "complete indemnification . . . for all their prior misconduct," plus six years of insurance liability coverage for directors and officers, Robbins said.

Barker said in a ruling last week that she wants to wait for "further developments" in the merger process before deciding on the shareholders' motion. Robbins said he wants the judge to act before the shareholder vote on the J&J offer.

A sidebar to the story sets out the three provisions the motion urges Judge Barker to strike down:
• A promise by Johnson & Johnson to give Guidant's board and top executives legal protections against lawsuits and six years of liability insurance coverage.

• A $625 million termination fee Guidant must pay if it walks away from the deal.

• A "no-talk/no-shop" clause that prevents Guidant from soliciting competing merger bids.

Posted by Marcia Oddi on Wednesday, January 04, 2006
Posted to General Law Related | Ind Fed D.Ct. Decisions

Ind. Gov't. - Lawsuit seeks to block closing of Silvercrest [More]

Lesley Stedman Weidenbener and Dick Kaukas of the Louisville Courier Journal report that a lawsuit has been filed by "a group of parents and the union representing state employees" to block closing of Silvercrest Children's Development Center in New Albany. Some quotes from the story:

Their lawsuit, filed in Floyd Superior Court, claims that Gov. Mitch Daniels lacks authority to close the center because it was created by legislation and exists under that statute.

"The governor and the Department of Health have scheduled the facility for closure without the approval of the legislature," Mary Jane Lapointe, an Indianapolis attorney who represents the families and employees, said in a statement. "Silvercrest is a unique facility, providing services to disabled children that are not available anywhere else." * * *

[T]he lawsuit requests a temporary injunction to stop the state from moving students out of the center and a permanent injunction to prohibit the closure. * * *

At issue is whether state law requires Silvercrest to operate. The law says that Silvercrest "shall provide" services to children with multiple disabilities who are not making progress in their home public schools.

Also, the suit claims the state violated state law by failing to consult first with the Silvercrest Advisory Committee, which is charged with recommending improvements or changes at the center.

But Lance Rhodes, assistant commissioner of the state Health Department, said yesterday that he believes Monroe, the health commissioner, has the authority to close the center.

Indeed, the same state law cited in the lawsuit also includes this line: "The state health commissioner ... has complete administrative control and responsibility for the center."

[More] See also this 12/28/05 ILB entry involving last month's effort to prevent the takeover of the Fort Wayne State Developmental Center.

Posted by Marcia Oddi on Wednesday, January 04, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Government | Indiana Law

Tuesday, January 03, 2006

Law - Cool database of Alito opinions

The ILB covers the U.S. Supreme Court nominees only sporatically, relying instead on the comprehensive coverage provided by How Appealing and SCOTUSblog.

However, you've got to see this cool database put together by the Washington Post! The neatest feature is the "roll over squares to learn more."

Posted by Marcia Oddi on Tuesday, January 03, 2006
Posted to General Law Related

Ind. Courts - More on the status of the Indiana voter photo-ID law challenge

In these ILB entries of Dec. 21st and Dec. 22nd, I sent readers to this excellent site:

Election Law @ Moritz, run by a number of faculty members at Mortiz College of Law at The Ohio State University. Here is the page with all the pleadings in the pending case of Indiana Democratic Party v. Rokita, plus a good summary of the case.
Unfortunately, the professors apparently had left for a month's winter break, and the site was only current with filings through Dec. 6th.

Today the site has been updated. Here is the response filed in behalf of the Democrats on Dec. 21st, referenced in this Dec. 22nd AP story by Charles Wilson.

Posted by Marcia Oddi on Tuesday, January 03, 2006
Posted to Indiana Courts

Environment - Toxic release inventory under fire, still

Cindy Skrzycki's Washington Post column, The Regulators, reports today:

Opposition is growing to a Bush administration plan to change the reporting requirements of a highly successful public information program that collects data annually on releases of toxic chemicals.

Since 1988, the Toxics Release Inventory has been a roadmap for individuals and community groups interested in pinpointing where the country's most-polluting facilities are located. Some have used the data to pressure companies to clean up their acts. By 2003, 4.4 billion pounds of releases were reported, a 42 percent decline from 1998.

The Reagan administration started the inventory in response to the 1984 chemical disaster at a Union Carbide plant in Bhopal, India. The current Environmental Protection Agency system requires annual reporting on 650 chemicals that companies release, dispose of, use, store and recycle. Some 23,000 facilities submitted 91,000 forms last year. * * *

Michael Walls , manager of regulatory and technical affairs for the American Chemistry Council , said, "It's one of the most successful regulatory programs we have been involved in."

But the applause has not stopped the business community -- particularly small business -- from pushing over the past decade to reduce the "burden" of having to fill out a five-page form for each chemical they use every year. This form includes detailed information on the quantity of the chemical, how it is made and processed, and how much of it is released. * * *

On Nov. 10, six members the Senate wrote EPA Administrator Stephen L. Johnson that they were "troubled" about the EPA's intentions to modify the frequency of reporting and to allow the filing of more short forms, especially for certain especially dangerous industrial chemicals.

Environmental and community groups, in particular, consider the reporting program a great success. And it has become even more useful since the agency has required reports on more chemicals and from more industrial sectors, including mining and electrical utilities. The business community interprets those results in an entirely different way.

Posted by Marcia Oddi on Tuesday, January 03, 2006
Posted to Environment

Ind. Decisions - 7th Circuit rules on South Bend wrongful conviction case [Updated]

In Alexander v. City of South Bend (ND Ind., Christopher A. Nuechterlein, Magistrate Judge) Judge SYKES writes:

Wrongly convicted of attempted rape and several other crimes, Richard Lee Alexander (“Alexander”) was sentenced to seventy years in prison but released after five when newly discovered DNA evidence exonerated him. Shortly after his release, Alexander sued the City of South Bend, Indiana, its police department, its police chief, and several officers. Alexander alleged that South Bend and its officers violated his constitutional rights by conducting a flawed criminal investigation that led to his wrongful conviction. See 42 U.S.C. §§ 1983, 1985, and 1986. He accused the officers of conducting faulty photo arrays and a suggestive lineup, destroying evidence, and conspiring to arrest him on the basis of race, and South Bend of failing to train and supervise its officers. The district court granted summary judgment in favor of South Bend and its officers on all counts. We affirm.
[Update] See this commentary on the opinion from Decision of the Day - the entry is titled "No Remedy for Wrongly Imprisoned Man."

Posted by Marcia Oddi on Tuesday, January 03, 2006
Posted to Ind. (7th Cir.) Decisions

Law - Eminent domain now big business

"Eminent domain now big business" is the headline to a a major story today in the Chicago Tribune. Some quotes:

With the national debate over eminent domain expected to sweep into Springfield in January, municipalities are cautioning against overreacting to a recent U.S. Supreme Court ruling that upheld the use of eminent domain for private economic development.

But property owners who have been forced to clear out for strip malls or big-box stores hope the public outcry against eminent domain will prompt Illinois lawmakers to act. * * *

Overwhelmingly, the eminent domain cases filed in Cook, Kane, DuPage, Lake, McHenry and Will Counties are for traditional public purposes, such as highways, schools, libraries, police stations--projects that will be owned by the government for the public use.

But a review of court cases filed since 2001 shows local governments have used eminent domain powers in many redevelopment projects where private companies end up in control of the land.

Municipal officials say this is nothing new and the current system should not be changed. Chicago area communities have used eminent domain in this way for decades to dream up new plans, they say.

Recent cases range from Chicago's efforts to remake decaying blocks in Englewood and the stockyards area to St. Charles' attempt to replace businesses along the Fox River with condos and retail.

"When the city is taking land for economic development, it's taking it in terms of advancing the public purpose of eliminating slum and blight," said Steve Holler, chief assistant corporation counsel for the City of Chicago's real estate division. * * *

In Illinois, governments can use eminent domain to force the sale of private property and transfer it to another private owner if the property is found to be blighted or on its way to blight.

The state has a list of 13 factors that prove blight, such as dilapidated buildings, obsolete uses or code violations.

"In the Chicago metro area, I think we can all agree there are properties that truly are blighted," said Thomas Geselbracht, a Chicago attorney specializing in eminent domain. "Sometimes municipalities try to use eminent domain where there's not quite as much agreement as to what's blighted."

Critics say blight definitions are written in a way that allows city councils to use the power of eminent domain by citing issues such as cracked sidewalks, buildings older than 30 years, or the lack of a community plan when a place was built. A building with a poorly planned parking lot does not automatically signal blight to some, which has led to extensive criticism of the law in Illinois and elsewhere.

"Blight removal was meant to take away property that was dilapidated and falling down, with high rates of communicable disease and infested with vermin," said Steven Anderson, coordinator of the Castle Coalition, which has led a national campaign against what critics call eminent domain abuse. "Now it means taking a perfectly fine house that happens to be in a nice location."

Nationally, a band of politically diverse groups, including conservative grass-roots groups, civil rights organizations and farmers, have come together to say the pendulum needs to swing back in favor of property owners.

Posted by Marcia Oddi on Tuesday, January 03, 2006
Posted to General Law Related

Ind. Law - Resolving to make a will for 2006?

Some quotes from a story today in the Munster (NW Indiana) Times:

MERRILLVILLE | If you're struggling to find a unique New Year's resolution that will last longer than next month, how about one that will reach into perpetuity? Or at least beyond your grave.

Estate planning and preparing a living will seems less flashy than losing weight, snuffing out tobacco or being a happier person in 2006, but the benefits continue even after death.

Last month's "Write a Will Week" -- designed to set up local attorneys to write simple wills for residents at no charge -- was a success, local officials said, as hundreds of calls came in for the annual program.

The goal is to increase awareness about the importance of estate planning, and remind people about charitable bequests.

"Generally, there are two times when people elect to make a will and plan their estates," said Bill Wagner, a Valparaiso attorney with Hoeppner, Wagner & Evans, who volunteered his time. "First, when there are custody concerns with young children, and second, when people get older in age."

Wagner, who's been writing wills since the 1950s, said although four out of five Americans donated to some charity last year, less than 10 percent of people remembered their favorite charities in their wills after death.

It's estimated that less than half of all citizens have wills prepared before they die, according to the National Committee on Planned Giving.

Posted by Marcia Oddi on Tuesday, January 03, 2006
Posted to Indiana Law

Ind. Courts - James Walker takes oath to fill Vigo Superior Court 6 seat

The Terre Haute Tribune-Star had a story this weekend by Joanne Hammer headlined "Judge takes oath to fill Superior Court 6 seat." It begins:

Friends, family and colleagues of James Walker crowded into a courtroom for the swearing-in ceremony as Walker became judge of Vigo County’s new sixth superior court.

Walker, 53, was sworn in Thursday by Judge Michael H. Eldred of Vigo County Superior Court Division 1.

“It’s an honor for me to be the first judge of Vigo County Superior Court 6,” Walker said. “It’s a unique opportunity to start a court from scratch.”

Walker formerly worked as the county’s chief deputy prosecutor and was one of four applicants who vied for the judicial position. Gov. Mitch Daniels appointed Walker in November to serve as judge. Walker will serve the one-year appointment, after which the office with its six-year term is up for election.

The new court is slated to open Tuesday on the second floor of the courthouse. Division 2 court temporarily will move across the street into the new Regional Community Corrections Work Release Center at First and Ohio streets to make room for the new court.

For the first year, the court will be assigned half criminal and half civil cases. Judges hope the new court will alleviate the backlog of criminal jury trials.

Posted by Marcia Oddi on Tuesday, January 03, 2006
Posted to Indiana Courts

Ind. Law - One-year report on Floyd County building rules

Ben Zion Hershberg of the Louisville Courier Journal reports today:

One year after Floyd County tightened restrictions on new subdivisions, both opponents and supporters agree a new law has made the county's planning and zoning system less confusing.

They also agree that the part of the measure having the most impact, so far, is its requirement for detailed traffic studies. * * *

The fine tuning turned into a 52-page document that sets new standards for developing the county's steep land, clarifies rules for subdivision roads and requires topography, soil and traffic studies.

Plan Commission President Paul Riggs said some developers have balked at the new rules, failing, for example, to submit the required reports or arguing that their proposed subdivisions were not large enough to require traffic studies.

Traffic studies have gotten more attention than any other part of the ordinance, Riggs said, largely because, "in a nutshell, it can be a deal breaker."

But that requirement isn't intended to prevent development, he said -- only "to determine if it can be supported at that location."

If a study shows traffic congestion near a subdivision already is worse than acceptable levels, Riggs said, or that traffic from the new subdivision will make congestion unacceptable, the subdivision can't be built unless the developer improves the road.

"We have yet to turn one (subdivision) down per se because of a traffic study," Riggs said. "But we have rejected some applications (for review by the Plan Commission) because traffic studies weren't done correctly."

D.J. Hines, one of Southern Indiana's biggest developers, said the new subdivision law has "worked a little better than I thought it might."

But he believes the ordinance should be amended to let developers complete some expensive requirements, such as traffic and geological studies, after the Plan Commission has given initial approval.

If the studies later uncover insurmountable problems, Hines said, the commission staff could refer the plan back to the full commission for more consideration.

Posted by Marcia Oddi on Tuesday, January 03, 2006
Posted to Indiana Law

Law - New Orleans lawyer cashed in on Katrina

The Times-Picayune has a very long report today about a New Orleans lawyer. Some quotes:

It was Aug. 30 and the winds from Hurricane Katrina had barely died down, but Orleans Levee Board legal consultant George Carmouche already was cashing in on the storm by greatly expanding his previously limited role at the flood protection agency.

Within days, Carmouche, who has family ties to then-board President Jim Huey, had become a full-fledged, post-disaster jack of all trades.

Levee Board records show that during the next two months, Carmouche, his family and his law firm associates collected fees for everything from office space to boat salvage work to media consulting -- a myriad of nonlegal services that currently total about $90,000 and counting.

Carmouche's meter started running almost immediately: The day after the storm, he billed $1,200 for staying in phone contact with displaced board members and agency personnel, as well as for planning the relocation of the board's administrative staff to his Baton Rouge law office. The next day, Aug. 31, he invoiced $1,140 for similar duties. * * *

Submitting invoices listed under the heading "Levee Board reorganization," Carmouche, a former state Senate staffer, charged his standard attorneys' rate of $120 an hour -- almost four times what the board paid its staff lawyer -- for any work he performed, even if it involved no legal expertise.

Examples of the $120-an-hour duties for which Carmouche billed were chauffeuring Levee Board commissioners to and from Louis Armstrong International Airport, fielding phone calls from reporters, and ordering furniture and computer equipment for the board's new home.

Through November, when Carmouche resigned under pressure from Huey's former colleagues on the board, agency billing records show the tally for the lawyer's nonlegal services had reached $67,631. The board continues to pay Carmouche $5,000 per month to rent the Baton Rouge office space.

Amid all the tasks he took on in the hurricane's aftermath, Carmouche continued to collect fees for the job he had been hired to perform: resolving scores of legal claims brought by corporations and families reclaiming ownership of land inside the mineral-rich Bohemia Spillway, a 30,000-acre tract on Plaquemines Parish's east bank that has been controlled by the board since the 1920s.

Even Levee Board critics agree that Carmouche, while well compensated for his legal work, has done a good job in abiding by the Legislature's mandate to move the complex case toward a settlement.

Since he came on board in 2000, Carmouche has been paid more than $2 million for handling the Bohemia matter, including more than $23,000 in September billings and nearly $30,000 collected in October.

Posted by Marcia Oddi on Tuesday, January 03, 2006
Posted to General Law Related

Ind. Law - The Year in Review as seen from the Indiana Law Blog.

Don't miss the 9-page version of "The Year in Review as seen from the Indiana Law Blog," my December column in Res Gestae. Access it here.

Posted by Marcia Oddi on Tuesday, January 03, 2006
Posted to Indiana Law

Ind. Courts - Possibly five filing for two new Hendricks County court seats

The Indianapolis Star reports today:

The announced candidates for judge are Michael Jeffries, a private practice lawyer; Scott Knierim, a deputy prosecutor from Morgan County; Hendricks County Deputy Prosecutor Stephenie LeMay-Luken; and Hendricks County Magistrate Mark Smith.

The candidates -- all Republicans -- have filed paperwork that allows them to raise money for a campaign for the May primary. Filing for the primary begins Jan. 18.

In addition, the story reports:
Herb D. Witham, a private practice attorney, could join a list of four other candidates for the new superior courts, which the General Assembly created last year. Hendricks County currently has three superior courts in addition to the circuit court.

Posted by Marcia Oddi on Tuesday, January 03, 2006
Posted to Indiana Courts

Monday, January 02, 2006

Ind. Law - More on IDEM's request for comments on whether and how to regulate outdoor wood-fired boiler

Updating the ILB entry from Dec. 29th, here is some background on the origin of IDEM's request for comments on whether and how to regulate outdoor wood-fired boiler. (It is pretty long, but I noticed the ILB has gotten a number of hits from searches looking for "wood-fired boilers" and like terms.)

First, here are the relevant parts of the minutes of the June 1, 2005 meeting of the Indiana Air Pollution Control Board, where IDEM, after having received a number of complaints about these devices from across the state, had arranged for the Board to hear from some of the people who had an issue with the devices, as well as from outdoor furnace/boiler owners, and several manufacturers:

REPORT AND COMMENTS ON OUTDOOR WOOD BURNING FURNACES

Ms. Watson stated that the meeting would start with an informational presentation on outdoor wood burning furnaces. Commissioner Easterly made introductory remarks.

Mr. Phil Perry, Compliance Branch Chief, made a presentation on outdoor wood burning furnaces. He provided a brief overview of the types of wood burning devices available and then gave a more in-depth description of wood burning furnaces, their characteristics, attempts to regulate them in light of the lack of federal requirements applicable to outdoor wood boilers, symptoms associated with burning wood in outdoor wood furnaces, complaint history in Indiana, the lack of regulation of outdoor wood furnaces under existing state air regulations, potential means to regulate such units, as well as reasons for their use and efficiency. These units are also known as outdoor wood boilers.

Chairman Miner recognized the following speakers who requested to express their opinions and to present information concerning outdoor wood burning furnaces:

Mr. Brian West, Washington, Indiana, owner of an outdoor wood furnace, who has received numerous complaints from a neighbor and who has worked with a sales representative to try to address his neighbor’s concerns about the use of his outdoor wood furnace. Last year he used the unit to heat his house, his hot water and his hot tub. His heating bill was about $200.

Mr. Rick Kezar, Central Boiler, Incorporated, of Minnesota reported that Central Boiler has been involved in testing of outdoor wood furnace emissions since 1995. For the last 18 months, Central Boiler, Inc. and eight other outdoor wood furnace manufacturers have been working with ASTM International to develop standards for testing emissions of outdoor wood furnaces. He explained the design and installation of outdoor wood furnaces, precautions and safety issues associated with the use of outdoor wood furnaces as well as the economics that drive the use outdoor wood furnaces.

Mr. Chris Furness, owner/operator of a wood furnace in LaPorte County, stated that he uses a wood furnace to heat his home because his gas bill was too high and he couldn’t afford to heat his home to a comfortable temperature in the winter time.

Mr. Ray Horn, neighbor, who lives on the south side of Mr. Furness, stated that he has not experienced any significant problem with air quality as a result of Mr. Furness using his outdoor wood furnace.

Mr. Irwin Kornelsen, manufacturer with Empire Furnace from Canada, asked that if there are problems with Empire furnaces, that the problem be brought to the attention of Empire because manufacturers really are concerned about their product. They want to satisfy not only the customer but also neighbors who may have complaints about their units. Mr. Kornelsen said that Empire Furnace would be proactive in the development of standards for wood furnaces.

Mr. James Donnelly, LaPorte, Indiana, asked for help from the board because he is impacted by smoke from his neighbor's wood furnace. The furnace is approximately 200-300 feet from his house and smoke from the furnace makes it impossible for him to sleep with his windows open at night. He stated that in LaPorte County there are 40 plus furnaces impacting air quality. He stated that he has contacted numerous public officials, both state and federal, for assistance concerning smoke from his neighbor's furnace.

Mr. Gail Kemp, Mayor of Huntingburg, described his experience in driving through a fog caused by smoke from wood furnaces. He supports regulation of wood furnaces and provided copies of information that he had obtained from woodheat.org. He also stated that Vermont is interested in banning wood furnaces.

Mr. Terry Burns with Burns Best, the U.S. distributor for Empire Outdoor Wood Furnaces, stated that the wood furnace industry is in its infancy and still learning about combustion technology. He stated that the large manufacturers formed a caucus about a year and a half ago to address concerns of state and local governments about emissions from wood furnaces. He stated that U.S. EPA has been working very actively behind the scenes with the industry to help establish the new ASTM standard to measure emissions from outdoor wood furnaces, something that has never been done. A number of states in the Northeast have joined in the process. Mr. Burns asked Indiana to participate in the ASTM standard development process.

Ms. Watson read letters from interested parties who had requested that their comments be read into the record:

Bill and Michelle Mullican, Laporte, Indiana, wrote that Chris, a neighbor at 4602 North 525 West, has installed an outdoor wood-fired boiler furnace to heat his home. The furnace bellows smoke which crosses the property line invading their home as well as their father’s home. The Mullicans want to know if the smoke that the outdoor furnace produces, besides being offensive to the nose, is harmful to them or their family.

Mr. David Laursen, President and CEO of Aqua-Therm, LLC, a manufacturer of outdoor wood furnaces stated that outdoor wood furnaces are in the 40 to 50 percent efficiency range and that some of the units do produce significant amounts of particulate matter. Mr. Laursen requested that IDEM promote competition and innovation among manufacturers of wood burning furnaces as a means to stimulate design improvements.

Ms. Sherry O'Connor, Washington, Indiana, lives next to a wood burning furnace and problems associated with smoke that comes into the house make her dwelling area almost unlive-able. She supports regulation of wood burning furnaces similar to open-burning laws and sewage laws, especially when the wood burning furnaces cause a smoke nuisance to others.

(A complete transcript of this meeting is available from IDEM).

Second, here is some of the introductory material that accompanied IDEM's 1st Notice of Rulemaking:

Basic Purpose and Background

In an effort to control heating costs, homeowners are increasingly turning to furnaces installed outside the home to heat their homes. These units are typically many times larger than an indoor wood stove with potentially high emissions of particulate matter.

Currently, outdoor furnaces are not regulated in Indiana or at the national level. The department has received numerous complaints concerning outdoor furnaces in residential areas and has received requests to develop regulations for outdoor furnaces.

There are many different types of, and names for, wood burning appliances. Outdoor furnaces are considered the same as outdoor boilers and references to outdoor furnaces in this notice includes outdoor boilers. An indoor wood burning device designed to heat only part of a house is commonly referred to as a wood stove or wood heater. If a wood burning device is designed to provide heat for an entire house, then that device is located outside the house and referred to as a wood furnace. In general, these furnaces are part of a larger group called outdoor furnaces.

Outdoor furnaces heat water or air that is pumped back into the home or other small buildings. Units are typically the size of a small wood shed or mini-barn. They can heat buildings ranging in size from one thousand eight hundred (1,800) to twenty thousand (20,000) square feet. Outdoor furnaces are much larger and differ from the much smaller indoor wood stoves, pellet stoves, fireplaces,and barbecue pits.

Most outdoor furnaces or outdoor boilers use wood as the primary fuel. Some outdoor furnaces have auxiliary units or attachments that allow gas, oil, or coal to be burned in addition to wood. Stack heights on outdoor wood furnaces are typically in the range of eight (8) to ten (10) feet above ground level. Chimneys on homes are almost always above the roof line and are typically twenty (20) to thirty (30) feet above ground level.

Outdoor furnaces or outdoor boilers are available in a wide variety of sizes and efficiencies. However, the basic design of outdoor furnaces causes fuel to burn incompletely, or smolder, which can result in thick smoke and high particulate emissions. Problems are aggravated if an outdoor furnace is not sited properly or not used following manufacturers’ recommendations.

Smoke is a primary complaint from residents who live near outdoor furnaces. Temperature inversions cause smoke to stay close to the ground. The smoke drifts across property lines and penetrates adjacent structures. It can also drift across nearby roadways and block visibility for drivers.

New York, Connecticut, Maryland, Massachusetts, Michigan, New Jersey, Vermont, and the Northeast States for Coordinated Air Use Management have filed a petition to the United States Environmental Protection Agency (U.S. EPA) seeking regulations of outdoor furnaces and outdoor boilers. U.S. EPA has tested some outdoor furnaces. The overall efficiency is approximately fifty percent (50%) of the thermal energy of the wood. For comparison purposes, the efficiency of a fireplace may be as low as ten percent (10%). According to the U.S. Federal Energy Management Program, the thermal energy-efficiency of a base model gas-fired water industrial boiler is seventy-eight percent (78%). Most modern hot air furnaces have a thermal energy efficiency of about eighty percent (80%).

Pollutants in the emissions from outdoor furnaces include particulate matter, carbon dioxide, and volatile organic compounds including formaldehyde, benzene, polycyclate, aromatic hydrocarbons, and a number of trace chemicals.

The United States Environmental Protection Agency (U.S. EPA) has regulated “wood heaters”, which are defined as “an enclosed, woodburning appliance capable of and intended for space heating and domestic water heating...” (40 CFR, Part 60, Subpart AAA, 60.530) under standards that have been in effect for all wood heaters manufactured and sold at retail since July 1, 1992 (40 CFR, Part 60, Subpart AAA 60.533). These standards exempt outdoor furnaces.

Since outdoor wood furnaces are not regulated by U.S. EPA, some local ordinances have been adopted to ban their use, such as in Otego, New York where the law declares “furnaces create noxious and hazardous smoke, soot, fumes, odors, and air pollution, [which] can be detrimental to citizens’ health, and can deprive neighboring residents of the enjoyment of their property or premises.”.

Vermont has proposed regulations for outdoor wood-fired boilers and they are on schedule to become effective after the Vermont legislative session. Vermont passed standards on water stoves, another name used for outdoor furnaces, in 1997 prohibiting them from being located closer than two hundred (200) feet to another residence and required an increased stack height for water stoves closer than five hundred (500) feet. However, citizen complaints continued.

Vermont’s proposed rules are more stringent, including emission limits and sales regulations. The Connecticut legislature has passed an act concerning outdoor wood-burning furnaces that include the requirement to use manufacturers’ recommendations, stack heights, and siting restrictions.

Posted by Marcia Oddi on Monday, January 02, 2006
Posted to Environment | Indiana Law

Ind. Courts - Bruce Markel III sworn in as judge of Jackson Superior Judge

The Jackson County Tribune has a report today by Aubrey Woods on the swearing of Judge Bruce Markell III. Some quotes:

Former Jackson Superior Judge Frank W. Guthrie kept a simple one-word sign on his desk during his 30-years on the bench, which ended with his Dec. 3 retirement. The word on that sign? Patience.

Guthrie doesn’t know if his successor, Bruce Markel III, kept that sign, but Guthrie said if Markel doesn’t have it there right now, it will be back soon. “He needs to remain as calm and patient as possible,” Guthrie said of the 58-year-old Markel, shortly after he was sworn in Sunday afternoon at the court on Seymour’s west side.

Guthrie also has given him an even better piece advice, Markel said. “He told he would be around, and I can call him anytime,” Markel said. Markel also has a lot of other help nearby, including present Jackson Circuit Judge Bill Vance.

“He’s a great friend,” Markel said. “I’ve already talked with him, and I’ll be talking to him again.” Vance, who just finished up his seventh year on the bench, said the best advice he can offer Markel is to never second-guess himself. “You work hard to make a decision, move on,” Vance said. “You can’t go back.” * * *

Markel also can look to at least one other source for advice. “I’m still a senior judge, and I told him I can help him anytime,” former Jackson Circuit Judge Robert R. Brown said. Brown also had a simple piece of advice for Markel: “Just be fair.”

Markel has said he will run for election to the office in 2008, when Guthrie’s current term would expire. Markel is the first Republican judge in Jackson County since John M Lewis III, who left the bench in 1964 after serving as circuit court judge.

Posted by Marcia Oddi on Monday, January 02, 2006
Posted to Indiana Courts

Ind. Decisions - Breath test ruling overturned by Court of Appeals

One of the 16 cases decided Dec. 30th by the Court of Appeals was the subject of an AP story published in the Fort Wayne Journal Gazette yesterday:

Not being able to blow hard enough for a breath test for alcohol is not the same as refusing to take the test, the Indiana Court of Appeals ruled.

The 3-1 ruling Friday reversed a Hancock Superior Court decision. The case involved a woman who was charged with refusing a breath test under Indiana’s implied consent law following an accident in which she was suspected of drunken driving.

The Breathalyzer machine at the jail printed out a ticket saying the sample was invalid. The deputy told Meredith Upchurch she was not blowing hard enough into the machine, and she told him she had asthma. She later presented in court a letter from her physician confirming she had the breathing disorder.

After a second test with the same result, officers arrested the woman, and prosecutors charged her with operating a vehicle while intoxicated and endangering another person.

Upchurch filed a petition disputing the allegation that she had refused the breath test, but Hancock Superior Court Judge Dan Marshall rejected the argument. She then appealed, arguing that the deputy should have offered an alternative alcohol test when the breath test did not yield a valid result.

The case is Meredith Upchurch v. State of Indiana. A quote from the opinion:
On December 20, 2004, the State charged Upchurch with operating a vehicle while intoxicated in a manner that endangered another person, a class A misdemeanor. On February 14, 2005, Upchurch filed a verified petition for judicial finding of no refusal. On March 18, 2005, a hearing was held on Upchurch’s petition. Upchurch presented a videotape depicting the administration of the breath test at the jail and a letter in which her doctor confirmed that she has asthma and indicated that the powder released by the cartridge that is fired when an airbag is deployed could cause an asthma attack. On April 25, 2005, the trial court denied the petition. On May 5, 2005, Upchurch filed a motion to reconsider. On May 16, 2005, the trial court denied the motion. Upchurch appeals.
This footnote could be of interest in future cases:
Because we conclude that the officer was required to but did not provide an alternate chemical test or perform a breath test on another instrument, we need not address Upchurch’s claims that the mouthpiece from the first breath test was a foreign object and therefore the officer was required to wait twenty minutes after the first breath test before administering the second breath test pursuant to section 1.1-4-8(7)(B), or that she did not in fact refuse to take the breath test. However, we note that support for Upchurch’s contention that the officer was required to wait twenty minutes before administering the second breath test can be found in the fact that the instructions of section 1.1-4-8(7)(B) and 1.1-4-8(7)(D) are different. Section 1.1-4-8(7)(B) directs the officer administering the breath test to return to step 1 (subdivision (1)) if “SUBJECT SAMPLE INVALID” is printed on the evidence ticket. Step 1 provides that the person to be tested must not have put a foreign substance in his or her mouth within twenty minutes prior to the breath test. In contrast, section 1.14-8(7)(D) directs the officer to return to step 2 (subdivision (2)) if “SUBJECT SAMPLE, INCOMPLETE” is printed on the evidence ticket.

Posted by Marcia Oddi on Monday, January 02, 2006
Posted to Ind. App.Ct. Decisions

General - The TRIB is back, perhaps it will stay around a little longer this time

The TRIB, the first Indiana "blog on blogs," that had a meteoric rise and fall (it seemed like less than a week) late last year, is back to try again in '06.

This post from this mornin
g, "Prayer, Publicity, and Perceptions of Indiana," will give you an idea of why it would be a great thing if The TRIB perservered this time.

Posted by Marcia Oddi on Monday, January 02, 2006
Posted to General News

Not law but interesting - The ultimate "time" article, from the LA Times

The LA Times today has what I would consider the ultimate feature article on the concept of time, in all its permutations.

The headline: "Going to Extreme Measures: Even as digital countdowns and televised timers fill our waking hours, does anybody really know what time it is?" Some quotes:

Once measured by the arc of the sun through the sky, by the changing of the seasons, life these days is measured by an increasingly complex and exacting system of timers.

There it is, on the Caltrans signs dotting Southland freeways: "25 min to downtown LA." Walk signals count down until the light changes. In the digital sphere, time is sectioned into a series of laptop and cellphone battery meters and iPod song timers.

Radio stations alert listeners to time intervals, a la "more Howard Stern in two minutes" or "30 minutes of uninterrupted music." Al Gore's new network, Current TV, displays a progress bar at the bottom of the screen indicating the amount of time left in each segment. * * *

[C]ritics claim that our focus on time as a commodity is the source of our frenzy rather than its salve, and that it leads to a kind of "time famine" and to all sorts of stress-related maladies.

"This is a public health problem of extraordinary dimensions, similar to smoke in public places," says Peter C. Whybrow, director of UCLA's Semel Institute for Neuroscience and Human Behavior and author of the book "American Mania: When More Is Not Enough." "We've become the victims of our own technology."

We have an "old brain" inherited over many millenniums, Whybrow says, a brain that is conditioned to "measure time through the seasonal variation and the rituals that were tied to that, to the day-night cycle, all tied to the sun." By binding ourselves to a concept of time not anchored in nature, "we're perturbing the insides of our heads in a way that's quite disturbing and distressing."

The concept of "time famine" is increasingly entering into public and academic discourse. Seattle-based Take Back Your Time, an education and public policy nonprofit, aims to "challenge the epidemic of overwork, over-scheduling and time famine that now threatens our health, our families and our relationships, our communities and our environment."

About half-way through this lengthy article, the writer, Steven Barrie-Anthony, gets to what I would call "big-picture time,' as opposed to "piece-meal time." More quotes:
Controversy about time is as old as time-keeping itself, and a new furor seems to arise whenever time moves further from its natural moorings. Once time was simply the cycle of the sun and moon through the sky, the passage of seasons, the cropping up of wrinkles on skin. Then humans invented ways to quantify the pace of change, such as sundials and almanacs derived from natural cycles.

Even the earliest mechanical clocks were set according to the sun. But in the U.S. in the early 1800s, time began to move in fits and starts toward the disembodied breed we know today. And controversy bubbled forth. * * *

In 1883, standard time was introduced by the railroads, breaking up the country into zones. In 1918, daylight saving was imposed, largely to conserve fuel during World War I — but was repealed a year later. The people who most objected to daylight saving time, O'Malley notes, were those who lived at the boundaries of time zones, where daylight saving spelled an even greater distance between nature and the clock. (Daylight saving was governed by local jurisdictions until Congress passed the Uniform Time Act in 1966, which standardized daylight saving times.)

While factory hours and train schedules had once been adjusted to fit the light/dark pattern of each season, with daylight saving, time itself became adjustable.

Slowly, a new conception of time as synonymous with the machine integrated itself into the American psyche. Early science-fiction movies halt time by showing a clock with frozen hands, indicating that when the physical clock stops, time stops, while the rest of nature and humanity continue unabated. Time is no longer that mysterious passageway we enter at birth and exit at death; it is a commodity, external to us, that we can control.

And more on time, from NPR's Saturday Weekend Edition:
Weekend Edition - Saturday, December 31, 2005 · How do we perceive time? How do we form and retrieve memories? Alain de Botton, author of How Proust Can Change Your Life, tells Linda Wertheimer how the French novelist might answer such philosophical questions.
NPR this weekend had a good feature on Einstein and Time, but I can't locate it. But I did find this, an "interactive time travel game to see Einstein's so-called twin paradox in action," via PBS Nova, on Einstein's Big Idea. The intro:
One of Albert Einstein's greatest insights was realizing that time is relative. It speeds up or slows down depending on how fast one thing is moving relative to something else. How much does it change?

Posted by Marcia Oddi on Monday, January 02, 2006
Posted to General News

Ind. Gov't. - Legislature will again be asked to ban serial meetings

The Evansville Courier& Press has an editorial today endorsing Sen. Bev Gard's reintroduction of her failed proposal from last session:

Advocates for truly open government in Indiana will try again during the upcoming legislative session to ban "serial meetings" by government boards.

The serial meeting is a tactic that government boards use to avoid public scrutiny in conducting the public's business. It is patently wrong, and is in violation of the spirit of Indiana's open-meetings law. Sen. Beverly Gard, R-Greenfield, would make it a violation of the word of the law with her Senate Bill 89. * * *

By failing to make such meetings illegal, here's the type of activity the Legislature permits: On a nine-member public board, for example, administrators may hold three closed, unannounced meetings, each with three members of the board, each not a quorum, to discuss public business. Then, when the board meets in public with all members present, it votes without comment on whatever issue was discussed in private. But the public gets no discussion and no insight into the deliberations of board members.

If you ever see a public board decide an important issue with no discussion, it is fair to wonder whether that group of public officials is utilizing serial meetings.

Senator Gard's 2005 proposal, SB 310, received much editorial endorsement, as indicated in this Feb. 2, 2005 ILB entry ("Editorials laud Senator Gard's open meetings bill"), citing editorials from four major state papers, and this one from March 14th, 2005. This entry from April 17, 2005, discusses (at the end) the demise of Gard's 2005 effort.

Posted by Marcia Oddi on Monday, January 02, 2006
Posted to Indiana Government

Gov't. - U.S. Rep. Mike Pence (R) for Speaker of the U.S. House?

U.S. Rep. Mike Pence (R) for Speaker of the U.S. House? That was one of NY Times columnist (and former Nixon speechwriter) William Safire's predictions for 2006 in his end-of-2005 column. He writes:

HERE is your 32nd annual chance to Beat the Pundit. In each multiple choice, pick one, none or all. In a good year, a master prognosticator gets four right. * * *

2. Speaker of the House succeeding Dennis Hastert will be: (a) Mike Pence; (b) Rahm Emanuel; (c) Steny Hoyer; (d) Roy Blunt; (e) Nancy Pelosi; (f) Tom DeLay.

Safire's choice, revealed at the end of the column, is "2 (a)."

(I also recall reading this column in the Indianapolis Star this weekend, but can't locate it now.)

Posted by Marcia Oddi on Monday, January 02, 2006
Posted to Indiana Government

Sunday, January 01, 2006

Ind. Decisions - Judge Upholds Prayer Limits in Ind. State House - a Review and Preview

"Judge Upholds Prayer Limits in Ind. State House: Some in Both Parties Vow to Fight Ruling" is the headline to a lengthy story on page 3 of the Sunday, 1/1/06 Washington Post. Some quotes:

In a spirited duel over prayer, members of the Indiana state House are at odds with a federal judge who ruled that the daily invocation appeals too often to Jesus Christ and a Christian god.

The "systematically sectarian" prayers, U.S. District Judge David F. Hamilton concluded, are barred by the Constitution, which forbids the government to show preference for any religious denomination. He ordered the House to avoid mentioning Christ in the formal benedictions.

As the House prepares to open its 2006 session on Wednesday, a number of politicians have vowed to defy Hamilton, whom they accuse of undermining a 188-year Indiana tradition and interfering in legislative branch affairs. * * *

Hamilton expects House leaders, including Speaker Brian Bosma (R), who is appealing the decision to the U.S. Court of Appeals for the 7th Circuit in Chicago, to honor the injunction. If they do not, the judge said, he intends "to take appropriate steps to insure compliance."

"If the Speaker or those offering prayers seek to evade the injunction through indirect but well understood expressions of specifically Christian beliefs, the audience, the public, and the court will be able to see what is happening," Hamilton, the son and grandson of Methodist ministers, warned in a Dec. 28 ruling rejecting a rehearing.

Bosma, who has termed Hamilton's injunction "intolerable," said Friday that he intends to arrange prayers that comply with Hamilton's ruling while the case is on appeal.

It was Clarence Brown's energetic rendition of "Just a Little Talk With Jesus" that prompted several legislators to decide enough was enough. The Indiana Civil Liberties Union soon filed suit in the name of four people -- a Quaker, a Methodist and two Catholics -- to stop what critics considered an increasingly sectarian prayer practice. * * * As Brown led the rollicking tune, some members and staffers clapped and sang along. Several others left the chamber. * * *

Bosma said he remains "frustrated that we have a federal court judge dictating what is stated by men and women of faith on the floor of the Indiana House of Representatives." He said previous prayer givers have told him they will not return if they cannot speak of Christ.

But Bosma, a lawyer first elected in 1986, said he will not honor calls for defiance. "Open defiance of the judge's order, I believe, would send the wrong message to every Hoosier and especially every young person, regarding obedience of the law, even laws you may disagree with personally," Bosma said. "As long as there is a constitutional means of appealing this ruling, we will pursue it."

The House of Representatives will reconvene on Wednesday, Jan. 4th at 1:30 p.m.

Posted by Marcia Oddi on Sunday, January 01, 2006
Posted to Ind Fed D.Ct. Decisions | Indiana Government

Ind. Law - State working on rules to clean up waste from one-time meth labs

"State working on rules to clean up waste from one-time meth labs" is the headline to a very long story today by Angela Mapes in the Fort Wayne Journal Gazette. The story reports that "the Methamphetamine Protection Act of 2005, or Senate Enrolled Act 444" regulated:

the sale of ephedrine and pseudoephedrine and has been the subject of both praise and irritation as Indiana residents have grappled with the inconvenience of having some of their cold medications monitored.

A lesser-known facet of the law requires the Indiana State Police and county sheriffs to develop a process for reporting the termination of meth labs to local fire services and county health departments.

The law also requires the Indiana Department of Environmental Management to develop and administer a program for the inspection or cleanup of property contaminated by the waste from the illegal manufacture of methamphetamine.

Bruce Palin, assistant commissioner for IDEM’s Office of Land Quality, said IDEM and the Indiana Department of Health, in cooperation with the state police and other agencies, are working together to create a meth rule in accordance with the new legislation.

Methamphetamine lab cleanup is new territory for IDEM, Palin said. “This is really our first involvement,” Palin said. “We’ve not dealt with this issue in the past at all.”

In addition to giving local health departments more cleanup guidance, the rule will require that meth sites be cleaned up only by certified contractors or people.

IDEM is working toward having a draft of the new rule [Note: see below], but it will still require public comment periods and review by other state agencies before final adoption, Palin said. The earliest the rule will could be formally adopted would be sometime in the summer, he said.

Part of IDEM’s role in the process will be certifying cleanup contractors according to federal requirements for personal protection. The draft of the rule, as it stands now, requires that contractors score 80 percent correct on a test based on IDEM’s training course, Palin said.

The draft version of the proposed rule was in fact published in the Jan. 1, 2006 Indiana Register and may be accessed here. Here is the summary:
The Indiana Department of Environmental Management (IDEM) has developed draft rule language for new rules at 329 IAC 17 concerning the inspection and cleanup of properties contaminated by chemicals used in the illegal manufacture of a controlled substance. This rulemaking is required by IC 13-14-1-15. This rule would include the following subject matter:

• Requirements to have a contaminated property decontaminated and inspected before reoccupying or reusing the property or transferring any interest in the property to another person.
• Qualification and certification of persons who inspect and clean contaminated property.
• Standards for inspection and decontamination of contaminated property.

IDEM seeks comment on the affected citations listed and any other provisions of Title 329 that may be affected by this rulemaking.

Comments are due to IDEM by Feb. 1, 2006. (This is known as the 2nd Comment Period.)

Posted by Marcia Oddi on Sunday, January 01, 2006
Posted to Indiana Law

Ind. Courts - Attorneys must qualify for death penalty trials

"Capital cases tax public defenders: Attorneys must qualify for death penalty trials" is the headline to an extended story today by Sara Eaton in the Fort Wayne Journal Gazette. Some quotes:

Just as there are requirements under Indiana law for the types of cases in which the death penalty can be sought, there are requirements for the attorneys who represent a person charged in such a case. * * *

The Indiana Public Defender Commission established the standards for representing defendants facing the death penalty in November 1989. Allen Superior Court Judge Kenneth R. Scheibenberger served on the commission when the standards were developed. The standards are important to ensure quality representation for those whose lives are at stake, he said.

Before the standards were in place, many cases were overturned because of ineffective representation, which is part of what the commission wanted to change, Scheibenberger said.

Nationwide, more states have standards than those that don’t, but the overall concept has been an issue in the legal community for years, said Richard Dieter, executive director for the Death Penalty Information Center. The Washington-based non-profit organization completes research and analyzes information about the death penalty and related issues.

“The assumption was that if an attorney could represent any criminal case, then they could do a death penalty case,” Dieter said. That is changing nationwide. Thirty-eight states have the death penalty, according to the center. More states are developing standards, Dieter said. Dieter described Indiana’s system for appointment of attorneys in death penalty cases as pretty good.

To be a lead attorney in a death penalty case in Indiana, one must have at least five years of criminal litigation experience; have completed at least five felony trials; and have experience on at least one death penalty case. As co-counsel, attorneys must have at least three years criminal litigation experience; and at least three felony trials completed. Additionally, attorneys must complete 12 hours of training for death penalty defense every two years.

Posted by Marcia Oddi on Sunday, January 01, 2006
Posted to Indiana Courts

Ind. Gov't. - Gov. Daniels, at 40th, ranks high above Ohio Gov. Taft in poll

A story today in the Washington Post reports:

The beginning of a new year is always time for making and reviewing lists, and the polling firm Survey USA has provided one for political junkies that charts approval ratings for all 50 of the nation's governors. * * *

Among the five least popular are three who are far better known -- and who definitely had bad years in 2005: California's Arnold Schwarzenegger (R), who saw his agenda of ballot initiatives soundly rejected in November; Louisiana's Kathleen Babineaux Blanco (D), whose approval rating plummeted after Hurricane Katrina; and Ohio's Bob Taft (R), who pleaded no contest to violations of the state's ethics laws in August. * * *

Taft was the clear bottom dweller, with an approval rating of just 17 percent -- 10 percentage points lower than Alaska's Frank H. Murkowski (R) and 14 points below Kentucky's Ernie Fletcher (R).

The average approval rating for all 50 governors was about 54 percent, and Republicans were no more or less popular than Democrats, on average. But there were wide variations among individual governors, with 60 points separating Rell at the top and Taft at the bottom. Thirty of the governors had approval ratings of at least 50 percent in December, with 18 of them above 60 percent. Seven had ratings below 40 percent, Blanco and Schwarzenegger among them.

According to the Fort Wayne Journal Gazette's version of the story:
Indiana’s governor, Republican Mitch Daniels, was ranked No. 40, with an approval rating of 42 percent.

Posted by Marcia Oddi on Sunday, January 01, 2006
Posted to Indiana Government