« January 2006 | Main | March 2006 »

Tuesday, February 28, 2006

Ind. Law - Richmond Pal-Item Editorial: Garton's decision hurts state wineries

The Richmond Pal-Item today has an excellent editorial on the fate of the wine shipping bill:

Indiana Senate President Pro Tem Robert Garton exercises a selective respect for the independence of the judicial branch of government.

The Republican Senate leader last week unilaterally killed a bill that would have allowed wine to be shipped to customers in Indiana, a move that, left unchallenged, could cause great damage to the state's promising homegrown wine industry.

But, wait, the bill, which would have allowed both in-state and out-of-state wineries to ship wine to Indiana, was in response to an earlier U.S. Supreme Court ruling.

The high court held in a case overturning laws in New York and Michigan last spring that states must play by rules of the commerce clause to the Constitution; that is, that they may not establish barriers to their residents receiving out-of-state wine shipments. Indiana's restrictions on wine shipments are similar to those struck down in New York and Michigan.

Garton killed the bill arguing, speciously, that because there is a lawsuit pending by Indiana wineries, "it will not be considered further by the Senate this year."

"We are not the judicial branch of government," the Republican leader said.

Consider the ramifications of Garton's position. Want to stop a bill, any bill, from making its way through the Indiana General Assembly? Apparently, all it takes is the filing of a lawsuit? Now consider the hypocrisy.

The Legislature is not, as Garton asserts, the judicial branch of government. But the U.S. Supreme Court is the pinnacle of that branch. The bill that Garton killed was intended to bring Indiana's practices regarding wine shipments in line with the high court's ruling.

About 30 wineries in the state get up to 40 percent of their sales through mailed shipments, according to state winery officials who say that many could be forced out of business if the Legislature fails to act.

Gov. Mitch Daniels needs to enter this fray forcefully and on behalf of the state's wineries, which are important to the state's tourism and economic development. The days of legislatively picking winners and losers among the state's diverse and competitive alcohol beverage interests must fall beneath the weight of open markets.

Posted by Marcia Oddi on Tuesday, February 28, 2006
Posted to Indiana Government | Indiana Law | Indiana economic development

Ind. Decisions - Two Indiana rulings today from the 7th Circuit

In Charlton, Michael v Davis, Cecil (ND Ind., Allen Sharp, Judge), a 9-page opinion, Judge Evans writes:

Having explained why the district court misapprehended the applicable legal principles in granting the habeas petition, we turn to the additional arguments Charlton offers for why we should nonetheless affirm the judgment. * * *

On direct appeal, the Supreme Court of Indiana gave extended consideration to Charlton’s reckless homicide argument. See Charlton v. State, 702 N.E.2d 1045, 1048-49 (Ind. 1998). That court concluded that Charlton had “not presented or referred us to any evidence showing that his conduct was reckless, much less showing that there was a serious evidentiary dispute over whether his conduct was reckless.” Id. at 1049. Even giving Charlton the benefit of the doubt on whether he properly preserved this issue as a federal, as opposed to state law, claim, see Sweeney v. Carter, 361 F.3d 327, 332-33 (7th Cir. 2004), our own review does not give us cause to disturb the state supreme court’s finding.

The judgment of the district court granting Charlton’s petition for a writ of habeas corpus is REVERSED.

Mendez, Judith v Barnhart, Jo Anne (ND Ind., Andrew P. Rodovich, Magistrate Judge), a 7-page opinion, Judge Posner concludes:
The administrative law judge failed to articulate a reasoned basis for the denial of benefits. The judgment of the district court is therefore vacated and the case remanded to the Social Security Administration for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Tuesday, February 28, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals decides six today

Anthony L. Walker v. State of Indiana

In Mainsource Bank v. In the Matter of the Unsupervised Estate of Nicholas R. Hermann, Deceased and Eva Hermann, a 2-1, 12-page opinion (with dissent beginning on p. 9), Judge May writes:

MainSource Bank appeals the trial court’s decision to exclude real estate owned by Eva Hermann (“Eva”) and her husband, Nicholas Hermann (“Nicholas”), as tenants by the entireties, from Nicholas’ estate. Mainsource raises one issue, which we restate as whether the trial court erred in declining to apply the doctrine of equitable election. * * *

[T]he trial court did not err in finding Nicholas did not intend to dispose of the entireties property in his will and in concluding the doctrine of equitable election does not apply in this case. We affirm.

KIRSCH, C.J., concurs.
ROBB, J., dissents with separate opinion.

The majority agrees with the trial court that the doctrine of equitable election does not apply in this case. I respectfully disagree.

The doctrine of equitable election creates an obligation upon a beneficiary under a will to “elect” between two inconsistent rights or claims which have been created by the will or by law. * * *

Under the doctrine of equitable election, Eva was required to either take the residence as it passed to her on Nicholas’ death by operation of law and forego the other beneficial provisions of Nicholas’ will, or forego her interest in the residence and take pursuant to the terms of the will. Because Eva took pursuant to the terms of the will, the value of the house should have been included in the value of the estate and then set aside to Eva as part of her one-half of the residue. I would reverse the decision of the trial court.

In Robert Davis v. State of Indiana, Judge May concludes:
In light of the statutory language and our holding in May, we decline to hold a trial court has the authority to order a presently indigent defendant to pay restitution based on possible future earnings or other speculative prospective wealth. As a result, the trial court erred in prospectively ordering Davis to reimburse the public defender’s fund $16,350.00. Reversed and remanded.
Rita Ann Gabriel v. Windsor, Inc.

Danielle M. Vasquez v. Roshawn Phillips, et al.

In Darren L. Marcum v. State of Indiana, a 5-page opinion, Judge May concludes:

Officer Mucha testified he smelled a “strong odor” of raw marijuana. He stated he knew what raw marijuana smelled like through his training at the Indiana Law Enforcement Academy and at drug interdiction schools, and from his experience on the job. He described the odor as being “very distinct, sweet, [and] pungent smelling. . . . ” Officer Mucha could have had the dog sniff the car but he decided not to do so. Furthermore, Officer Alvey testified he smelled burnt marijuana when he was three to five feet away from the rear bumper of the car. We do not have just the smell of raw marijuana justifying a search. Officer Mucha’s testimony, in conjunction with Officer Alvey’s testimony that he smelled burnt marijuana, was sufficient to allow a search of Marcum’s vehicle. See Hawkins, 766 N.E.2d at 752. We decline Marcum’s invitation to hold the detection of the odor of marijuana by police officers cannot serve as probable cause for a search unless the odor is independently confirmed by a trained dog. We accordingly affirm the denial of Marcum’s motion to suppress.

Posted by Marcia Oddi on Tuesday, February 28, 2006
Posted to Ind. App.Ct. Decisions

Environment - More on "De Groot faces charges over construction"

Updating Saturday's ILB entry (2/25/06), the Huntington Herald-Press reports today, in a story by Beth Shindle:

The Polk Township dairy farmer who turned himself in over the weekend for violating environmental management laws was formally charged in Superior Court Monday morning.

Johannes de Groot, 53, 8378W-200S, Andrews, was charged with two felony counts of violating environmental management laws. De Groot owns and operates de Groot Dairy Farms, located south of Andrews near Ind.-105 and CR 200S.

He turned himself in at 4:35 p.m. Sunday, according to jail records, and made a $7,000 bond shortly after at 5:15 p.m.

Court records indicated that de Groot allegedly built two structures, a dry cow barn and a silage pad, on the dairy farm property between June 1, 2005, and Sept. 13, 2005, without approval from the Indiana Department of Environmental Management (IDEM). Records indicate that he did obtain a building permit from the Huntington Countywide Department of Community Development for the structures in January 2005. * * *

De Groot is scheduled to appear again in court for a pretrial hearing on April 18.

Posted by Marcia Oddi on Tuesday, February 28, 2006
Posted to Environment

Ind. Courts - Still more on: Doctors' non-compete challenge goes to jury

Monday the ILB wrote about the Evansville trial in Judge Trockman's court involving a noncompete clause in a contract between two Evansville cardiologists and their physicians' group, quoting from a story that day and one on Dec. 17th in the Evansville Courier& Press.

The ILB entry ended with the ILB's wish for a copy of Judge Trockman's opinion.

Well, I've just received a note from a reader pointing to yet a third recent Courier& Press story, dated Feb. 23rd, the day after the opinion was issued, by Thomas Langhorne. Some quotes from that story:

It is not unreasonable for a physicians' group to limit the ability of two of its former cardiologists to compete against it using a contract the doctors signed when they worked there, a judge ruled Wednesday.

But Vanderburgh Superior Court Judge Wayne S. Trockman also found the noncompete contracts that Ohio Valley HeartCare Inc. tried to enforce against Evansville cardiologists Drs. Ralph D. Millsaps and Julio A. Morera were too restrictive, and he loosened those restrictions.

Trockman changed the contract to restrict only Millsaps' and Morera's ability to practice cardiology - the original contract barred them from practicing all forms of medicine - and he enlarged the geographic area in which they may now work. * * *

Trockman's ruling says the 31-county restriction Ohio Valley tried to impose on Millsaps and Morera is "patently overbroad," but the two-year time limit is reasonable. That period began Nov. 14, 2005.

Trockman ruled the contract Millsaps and Morera signed can be enforced in just five counties - Vanderburgh, Posey, Gibson, Warrick and Henderson County, Ky. * * *

Trockman also found "overbroad and unreasonable" the requirement that the "physician shall not engage in the practice of medicine, including, but not limited to, the furnishing of cardiovascular medical services." Attorney Patrick Shoulders, who represented Millsaps and Morera, said his clients are pleased with the loosened restrictions.

"Dr. Millsaps is board-certified in internal medicine," Shoulders said. "Dr. Morera is board-certified in pediatrics.

"They could practice those (disciplines) in Evansville tomorrow, with this ruling. And we are certainly glad that this gives them an opportunity to (practice cardiology) much closer to Evansville than the contract we sued over."

But Shoulders also said Millsaps and Morera, who did not practice medicine or see patients while their lawsuit was being litigated, are not entirely pleased. He said they now find themselves in the peculiar circumstance of being compelled to abide by an amended contract they never signed.

In addition, the story contains a link to Judge Trockman's Feb. 22, 2006 20-page opinion in Millsaps v. Ohio Valley Heartcare, posted via the Evansville Courier& Press site.

Posted by Marcia Oddi on Tuesday, February 28, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Supreme Court library reopens!

In this entry from Feb. 3rd the ILB lamented that the Supreme Court Law Library was still wrapped in protective plastic sheeting and might not reopen until mid-March.

Well, good news! Today I received this note from Kim Schwant at the library:

The Indiana Supreme Court Library is now open to the public after our lengthy close for renovations. We are mostly functional but are temporarily without public computers. We also have a small amount of dust and are operating with temporary lighting fixtures. However, the place is much more workable than it has been for the last few weeks. I wouldn't call it our grand re-opening but it's a start.

Posted by Marcia Oddi on Tuesday, February 28, 2006
Posted to Indiana Courts

Courts - kentucky Judge Resigns Amid Accusations He Profited From Fen-Phen Case

The AP is reporting:

A northern Kentucky judge has resigned rather than face removal for allegedly profiting from a $200 million settlement involving the diet drug fen-phen, a state judicial panel said Monday.

Judge Joseph F. Bamberger was publicly reprimanded Monday by the state's Judicial Conduct Commission, which said his actions "shock the conscience."

Bamberger, who resigned Friday, was a senior status special judge, a retired jurist who could be assigned to certain cases.

In a letter of reprimand, the commission said the judge gave attorneys, including one of his personal friends, somewhere between $86 million and $104 million from the 2001 settlement.

In addition, Bamberger allowed more than $20 million from the settlement to be put into a charitable fund, and then he became a paid director of the fund, receiving $5,000 a month plus a $350 monthly expense allowance.

That left the 431 plaintiffs involved in the settlement to split about $74 million. More than 300 of the plaintiffs have sued three lawyers in the case.

Here is a detailed report from WCPO, Cincinnati.

Posted by Marcia Oddi on Tuesday, February 28, 2006
Posted to Indiana Courts

Ind. Law - More on bill resulting from dispute over Kokomo mayor's email list

Today the mayor of Kokomo has a letter to the editor in the Indianapolis Star, available here. Some quotes:

The Star missed a key point in describing the City of Kokomo's defense of a lawsuit asking us to provide a copy of the e-mail addresses of subscribers to the city e-newsletter. Missing from The Star's editorial was our argument that e-mail addresses should be afforded the same privacy protections as postal addresses under the Indiana Access to Public Records Act.

The city lost the case and elected not to appeal. But in ruling against us, the judge wrote that the city should seek legislation to bring e-mail addresses under the umbrella provided to physical addresses. The plaintiff, Ryan Nees, even said in the newspaper that he should not be able to obtain the private e-mail addresses, but the law allows for it and so he was testing the law. He also made his intent clear in an e-mail saying he wanted the list to send political messages (spam) to the city's subscribers.
Here is a quote from the Star editorial of Feb. 22nd:
The Kokomo teenager won his legal fight with Mayor Matt McKillip this week, securing the right to review the city's list of e-mail addresses used to distribute an electronic newsletter. Nees asked for a copy of the subscriber list in July after he became concerned that the city was using his e-mail address for political purposes. [emphasis added]
Here is Engrossed SB 205, awaiting final passage in the House. As the ILB noted in this entry from Feb. 26th, the bill is "eligible for final passage in the House this week. If it passes, it will go directly to the Governor, because the House has made no changes."

Re the proposed revisions to IC 5-14-3-3(f) in ESB 205:

The specific change relevant to the Kokomo incident would amend the existing law to read (language to be added is in bold):

However, if a public agency has created a list of names and addresses (excluding electronic mail account addresses) it must permit a person to inspect and make memoranda abstracts from the list unless access to the list is prohibited by law.
So e-mail lists are to be treated differently than other public records - the public may not even look at them.

The amendment also would require a person to disclose whether he was requesting certain information for "political purposes," defined as:

influencing the election of a candidate for federal, state, legislative, local, or school board office or the outcome of a public question or attempting to solicit a contribution to influence the election of a candidate for federal, state, legislative, local, or school board office or the outcome of a public question.
before he could, in the future, examine a number of public records. Access to these records would be prohibited to anyone with "a politcal purpose."

Posted by Marcia Oddi on Tuesday, February 28, 2006
Posted to Indiana Government | Indiana Law

Ind. Gov't. - "State Senate stuck in neutral"

"State Senate stuck in neutral" is the headline to an editorial today in the Indianapolis Star. Some quotes:

Our position: State Senate has become a barrier to making changes that will benefit Hoosiers.

The Indiana Senate is fast becoming a place where good ideas are thrown away like yesterday's coffee grounds.
Three issues are used as examples: killing proposals "to switch ISTEP from the fall to the spring," failing to abolish "a benefit for retired representatives and their families that provided taxpayer-subsidized health, dental and vision care for life ... Most senators are still eligible to collect the outrageous perk," and third, failing to act on the House "legislation to end gerrymandering." The editorial concludes:
And so they continue to pamper themselves with a health-care perk that almost no other Hoosier could expect in return for part-time work. Students still will be tested in September on materials they studied the previous November. Gerrymandering will continue unabated. The status quo is safe. The Senate leadership is defending its fortress.

Posted by Marcia Oddi on Tuesday, February 28, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Environment - "Pork producer challenges environmental law"

"Pork producer challenges environmental law" is the headline to a story today by Seth Slabaugh in the Muncie Star-Press. Some quotes:

MUNCIE -- A defense lawyer is challenging the constitutionality of a criminal law being used to prosecute a Dutch pork producer from Delaware County and a Dutch dairy farmer from Huntington County .

The law in question makes it a class D felony to knowingly, intentionally or recklessly violate an environmental management law, rule, standard, permit or order.

Muncie attorney Scott Shockley is asking a trial court to dismiss three felony charges against pork producer Jacobus "John" Tielen, Eaton.

Since 1999, prosecutors claim, Tielen has continually shown contempt for laws, rules and orders governing the management of hog manure.

Tielen is accused of repeatedly keeping a lagoon full of manure, failing to lower the level of the manure, failing to maintain a berm around the lagoon, and failing to empty a manure pit. He has been fined more than $21,000 for spilling manure, failing to report a manure spill, killing fish and other civil violations.

Shockley recently filed a motion asking Delaware Circuit Court 4 Judge John Feick to dismiss charges against Tielen because the law is "hopelessly broad," vague, and a violation of the separation of powers doctrine.

That doctrine requires the state Legislature -- not executive-branch boards or agencies such as the Indiana Department of Environmental Management -- to define criminal acts, Shockley said.

The law he questions "purports to criminalize" hundreds of pages of regulations promulgated by the Indiana Water Pollution Control Board, Shockley complains. * * *

The same law was used last week to file two class D felony charges against Hutington County dairy farmer Johannes De Groot, of Andrews. He is accused of adding a cow barn and a silage pad to his controversial, 1,400-cow dairy farm last year without first seeking a permit to do so from IDEM. * * *

The law Shockley is challenging also is being used to prosecute former Muncie tire recyclers Michael and William Gruppe III. The two brothers and their corporation are scheduled to be sentenced today for their guilty pleas to violating environmental laws before a tire fire destroyed their business in 2003.

But what is "the law" mentioned in the story, but never identified? Presumably it is IC 13-30-6-1, which reads:
Sec. 1. (a) A person who intentionally, knowingly, or recklessly violates:
(1) environmental management laws;
(2) air pollution control laws;
(3) water pollution control laws;
(4) a rule or standard adopted by one (1) of the boards; or
(5) a determination, a permit, or an order made or issued by the commissioner under environmental management laws or IC 13-7 (before its repeal);
commits a Class D felony.

(b) Notwithstanding IC 35-50-2-7(a), a person who is convicted of a Class D felony under this section (or IC 13-7-13-3(a) before its repeal) may, in addition to the term of imprisonment established under IC 35-50-2-7(a), be punished by:

(1) a fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000) per day of violation; or
(2) if the conviction is for a violation committed after a first conviction of the person under this section (or IC 13-7-13-3(a) before its repeal), a fine of not more than one hundred thousand dollars ($100,000) per day of violation.
As added by P.L.1-1996, SEC.20. Amended by P.L.112-2000, SEC.4.
Also relevant would be IC 13-30-2-2, the detailed statutory list of "prohibited acts."

Posted by Marcia Oddi on Tuesday, February 28, 2006
Posted to Environment | Ind. Trial Ct. Decisions | Indiana Law

Ind. Law - Senate rejects efforts to amend eminent domain bill

Lesley Stedman Weidenbener reports today in the Louisville Courier Journal that:

The Indiana Senate yesterday rejected two efforts to limit the ways that small sewer companies created by private developers can use eminent domain to acquire easements on neighboring land. * * *

The first would have prohibited private sewer companies that planned to have or had fewer than 500 hookups from using eminent domain -- or the taking of private land -- for their plants or infrastructure.

The second would have required private developers that are building sewage plants to gain approval from county commissioners before applying to the Indiana Department of Environmental Management or the Indiana Utility Regulatory Commission to provide sewer services.

The amendments were offered to House Bill 1010, which restricts government's ability to seize land from one private owner to give to another private owner for development. The Indiana Department of Transportation is exempt.

As passed by the House, the bill included a provision similar to one of Sipes' amendments that would have stopped the use of eminent domain by small sewer companies. But that language was removed in a Senate committee.

In Floyd County, residential developers are using or have threatened to use the state's eminent-domain law to try to bury sewer pipes on private land. * * *

opponents said yesterday that making it more difficult for developers to build sewer plants could be bad for the environment because it would encourage them to use septic systems or other disposal methods that are less reliable.

Sen. Beverly Gard, R-Greenfield, said the sewer language offered by Sipes should be considered in a separate bill that could be debated in a committee. But there's no time left for that this session.

"I think there is a role for IDEM, a role for the IURC and a role for the local Board of Zoning Appeals," Gard said. "But it's difficult to figure that out at second-reading amendment" stage of the process.

The story notes: "No vote on the full bill was taken."

Posted by Marcia Oddi on Tuesday, February 28, 2006
Posted to Environment | Indiana Government | Indiana Law

Ind. Law - House rejects effort to strip DNR of authority over deer farms

A report today in the Louisville Courier Journal:

The Indiana House defeated a bill yesterday that would have stripped the Department of Natural Resources of its authority to regulate deer farms and breeding so the agency would be unable to follow through on a plan to end fenced deer hunting.

Senate Bill 314, defeated on a vote of 53-41, also would have eliminated the department's ability to regulate the breeding and keeping of wild animals, such as lions and tigers. * * *

Earlier in the session, the House passed a bill that prohibited any new preserves but allowed existing operations to continue for seven years. That bill, however, was killed in the Senate.

Niki Kelly of the Fort Wayne Journal Gazette reports, under the headline "House shoots down bid to pull DNR authority on privately owned deer":
House members Monday rejected an attempt to strip the Department of Natural Resources of authority to regulate privately owned deer and other wild animals on private property.

The language was inserted into Senate Bill 314 – legislation governing soil and water conservation districts – and was defeated 53-41. * * *

A last attempt to deal with the canned deer hunts is still alive in Senate Bill 87, which is awaiting a vote by the full House. The legislation has a provision requiring the DNR to compensate the hunting preserves for lost income if they are closed – an unknown cost that could hamper the agency’s ability to do other functions.

Posted by Marcia Oddi on Tuesday, February 28, 2006
Posted to Environment | Indiana Government | Indiana Law

Monday, February 27, 2006

Law - Supreme Court to hear Texas redistricting case on Wednesday; other upcoming arguments

"Texas-size gerrymander case heads to high court" is the headline to a story today in the Chicago Tribune. Some quotes:

WASHINGTON -- It was among the more audacious political moves in memory: The state of Texas, prodded by Rep. Tom DeLay, redrew its political map in 2003 to send more Republicans to Congress, the first such "mid-decade" redistricting in the modern era.

The maneuver could hardly have been more successful. Six more Republicans were elected in 2004, making the Democrats' attempt to retake the House of Representatives this year all the more difficult. But there were negative consequences, too: DeLay has been indicted, admonished by the House ethics committee, forced to step down as majority leader and confronted with the prospect of losing his seat--all because of actions related to the redistricting.

Now the Supreme Court is preparing to deliver the final word on Texas' action. In a special two-hour session Wednesday, the court will consider whether Texas impermissibly redistricted for solely partisan reasons and whether it illegally dismantled black and Latino districts. A ruling is expected later this year.

The fight is unfolding against the backdrop of dramatically fewer competitive House races across the country. And the events in Texas seem to reflect a political culture that is becoming more partisan and polarized. * * *

The episode has become part of the larger national debate over politics and corruption, in which DeLay is a central figure. After the Texas redistricting, the House ethics committee chastised DeLay for using the Federal Aviation Administration to track down the Democratic lawmakers when they fled. Then DeLay was indicted for alleged campaign finance violations related to his push to elect more Republicans to the Legislature, which set the stage for the redistricting.

A lower court has upheld the new Texas map. Should the Supreme Court agree, it would encourage other legislatures to redistrict whenever a party seizes the upper hand, said Paul Smith of the Chicago-based law firm Jenner & Block, who is arguing the case for the Democrats.

"If we are to lose this case, we will have a profoundly anti-democratic result," Smith said.

Few are willing to predict which way the court will go.

"It's a big wild card," said Storey, of the National Conference of State Legislatures. "The wise answer is that it will be some kind of a close decision that can break either way and will be pretty narrowly tailored to deal with the Texas episode. I think you flip a coin."

For the briefs in the Texas "case" (it is actually four cases) check here on the ABA site. There is a lot of reading there! (See also these ILB entries from Dec. 12th and 15th, 2005, that will allow you to do a lot of listening!).

Tax incentives. On the same page, you'll find the briefs for the Ohio tax incentives challenge discussed at length in this ILB entry this weekend.

Confrontation clause. Also on the same page are the briefs for an argument set for Monday, March 20th. This is Hammon v. Indiana, an Indiana case involving the hearsay/confrontation clause of the U.S. Constitution. See these ILB entries from Nov. 14, 2005 Nov. 3, 2005, and Nov. 2, 2005.

Even more. Linda Greenhouse of the NY Times reports "High Court to Take Up Pressing Issues This Week." She has a good discussion of the Vermont campaign finance case being heard this week. See these two ILB entries (one and two) from Sept. 27th, 2005 for background. Terre Haute attorney James Bopp, Jr. will be arguing on behalf of the Republican party.

Posted by Marcia Oddi on Monday, February 27, 2006
Posted to General Law Related

Ind. Courts - Judicial Elections and Free Speech

The current (February) issue of the Harvard Law Review features "Developments in the Law - Voting and Democracy." See the cover/contents here.

All the articles look interesting. Those most pertinent to Indiana right now might be:

[Thanks to Prof. Rick Hasen of Election Law Blog]

Posted by Marcia Oddi on Monday, February 27, 2006
Posted to Indiana Courts

Courts - New Castle City Court judge resigns

WLBC News, East Central Indiana, is reporting:

The New Castle City Court judge has resigned. David Sadler is campaigning for the Republican nomination in Indiana House District 54. State law requires judges who are running for elected office to step down. Governor Mitch Daniels will choose Sadler’s replacement.

Posted by Marcia Oddi on Monday, February 27, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals decides three today

In Franklin College v. Shannon B. Turner, an 11-page opinion, Judge Najam writes:

Franklin College (“Franklin”) appeals from the trial court’s denial of its motion to correct error in an action to collect on a delinquent student loan from Shannon B. Turner. *** We affirm.
In Stump Home Specialties Manufacturing v. Durwin Miller, an 8-page opinion, Judge Najam writes:
Stump Home Specialties Manufacturing (“Stump”) appeals from the Worker’s Compensation Board’s (“the Board”) grant of Durwin Miller’s Application for Change of Condition. Stump presents a single dispositive issue for our review, namely, whether the Board abused its discretion when it found that Miller’s Application was timely filed under Indiana Code Section 22-3-3-27(c). We affirm. * * *

Of course, the date of Maximum Medical Improvement will not necessarily be the starting date for PPI benefits in every case, since the parties can agree or the Board might find otherwise depending on the circumstances. But where, as here, the Board makes such a determination and it is supported by the evidence, we will not reverse that decision. Stump has not cited to any Indiana precedent showing that the Board was without authority to decide this issue or that its determination is an error of law. We affirm the Board’s decision on Miller’s Application for Change of Condition.

In Jason J. Green v. Laura S. Green, a 12-page opinion, Judge Vaidik writes:
Jason Green appeals the trial court’s denial of his petition to modify custody of his ten-year-old son, B.G. Jason requested a modification upon learning that his ex-wife and B.G.’s mother, Laura Green, was planning to relocate to the state of Iowa. We find that the trial court failed to make a proper assessment of B.G.’s best interests, as required under Indiana Code § 31-17-2-8, and it therefore abused its discretion when it denied Jason’s petition for modification. Reversed and remanded.

Posted by Marcia Oddi on Monday, February 27, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - Superlawyers: Virginia Dill McCarty, The Pioneer

The 2006 Indiana Superlawyers arrived in the mail last week, containing an article by Sally Flk Nancrede titled "The Pioneer: Virgiinia Dill McCarty has blazed trails for Indiana women all her life." Unfortunately, it is not available online; it should be.

Here are a few quotes:

When Plainfield native Virginia Dill McCarty was a freshman in high school in 1940, one of her classmates told her, "You like to argue so much, you ought to be a lawyer."

"It was like a lightbulb going off over my head," remembers McCarty, who then vowed to make it happen.

That was more than a half-century ago, and back then, women just didn't go to law school. But McCarty did. And in 1950 she graduated first in her class from Indiana University School of Law - Indianapolis, cum laude, where she was elected to serve as Indianapolis editor of the Indiana Law Journal.

Women didn't work at law firms back then, either. Again, McCarty broke the mold -- eventually.

Among her many accomplishments, Ms. McCarty served as U.S. Attorney for four years, in the Carter administration. When I began working in state government in the mid-1960s, John Dillon was Attorney General and Virginia Dill McCarty was one of his deputies. Although she had been a lawyer for a number of years by then, there were still very few women attorneys in the 1960s, and she was a wonderful role model.

Today Ms. McCarty continues to practice law, at Landman & Beatty.

Posted by Marcia Oddi on Monday, February 27, 2006
Posted to Indiana Law

Ind. Gov't. - Still more on: Lake County printing contracts questioned

The first ILB entry was on Dec. 4, 2005, when a story in the Gary Post-Tribune reported that bidders for Gary printing contracts had been bidding for years for "on work they will never be asked to perform." More:

The three companies that applied to the County Board of Commissioners for the 2006 contracts bid on at least two work orders to print forms that have not been used in years.

The discovery has spurred the Commissioner’s Office to undertake a wholesale audit of dozens of 2006 county bids, to look for other oversights that could give an unfair advantage to a firm that knows it will not be asked to fill a particular order.

The outdated bid sheets for 2006 appear to have benefited Haywood Printing Inc., a Lafayette company that has had the county printing contract for the past several years.

Haywood’s bids on two orders to print three-ply paper offense reports for the Lake County Sheriff’s Department totaled $140.

The next lowest bidder, A-1 Union Graphics Inc. of Hammond, bid $2,240, 16 times higher than Haywood’s quote.

The third bidder, P & H Printing Etc. of Whiting, gave a quote of $4,480 to the county for the work.

The result was that the company that already had the contract knew what items were not required and so could bid low on them.

An entry from Dec. 6, 2005 included this quote from the Post-Tribune:

Lake County department heads will be required to certify all their 2006 contract requests are up to date, in order to prevent bidders from defrauding the county.

After learning bidders for 2006 county printing contracts responded to out-of-date bid forms, County Commissioners attorney John Dull on Monday sent a letter to county departments ordering them to verify their hundreds of bid requests.

A story in the Jan. 9, 2006 Post-Tribune, quoted here in the ILB, reported:
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.

So how did it end up? Yesterday the Post-Tribune reported [link no longer available]:
CROWN POINT — Three local printing firms have lost out to a Lafayette-based company in the bidding for lucrative annual Lake County government printing contracts, though all three had the low bids for the work.

The three lost because they all neglected to sign a single-page contract.

After getting a second chance to submit proposals amid revelations that the 2006 printing bids were rife with errors that likely gave Haywood Printing Co. of Lafayette an unfair advantage, the three Lake County companies seemed shoo-ins to get the contracts to provide paper products to county offices.

When the proposals were opened at the February Board of Commissioners meeting, A-1 Union Graphics of Hammond had the inside track on three contracts, with a bid of $77,822.

And P & H Printing of Whiting came in low on one printing class, worth $37,395.

Sheffield Press of Hammond bid lower than Haywood for two classes of work totalling $86,590, but came in higher than A-1 or P & H for the contracts.

Haywood, which had won most Lake County printing contracts it bid for during the past several years, seemed destined to be stuck with a lone $18,425 job.

As the final flourish of the time-consuming bidding pro-cess, representatives of all firms vying for Lake County government work must sign a contract binding them to complete the work if their bid is chosen.

None of the Lake County companies signed on the dotted line, rendering their bids null and void.

Haywood, as the only firm to follow the bidding instructions, will therefore most likely receive all the work, totalling $170,113.

The commissioners will make their final decision on the bids at their March meeting.

Posted by Marcia Oddi on Monday, February 27, 2006
Posted to Indiana Government

Ind. Courts - More on: Doctors' non-compete challenge goes to jury

On Dec. 17, 2005 the ILB quoted from an Evansville Courier& Press story:

A trial wrapped up Friday in the case of two Evansville cardiologists suing their physicians' group to get out from under noncompete contracts they signed.

The judge could rule next month, and if he finds that the contracts are legally binding, then the two cardiologists could be forbidden from practicing medicine in the Tri-State area for two years. Dr. Ralph D. Millsaps, a cardiologist, and Dr. Julio A. Morera, a pediatric cardiologist, both resigned last month from Ohio Valley HeartCare Inc., which Millsaps had co-founded.

Both want to continue practicing in the Evansville area and treating their longtime patients, but contracts they signed in 1998 preclude them from working for Ohio Valley's competition for two years after leaving the physicians' group.

Today, the same reporter, Bryan Corbin, writes:
In a case that could have implications for doctors and patients statewide, two local cardiologists who sued their physicians' group are appealing a judge's ruling.

The cardiologists contend Indiana should prohibit noncompete agreements such as the ones they signed - an idea the judge suggested in his ruling.

Though Vanderburgh Superior Court Judge Wayne Trockman didn't rule in the cardiologists' favor, his decision questioned the wisdom of Indiana allowing noncompete agreements between doctors and their employers when other states prohibit such restrictive covenants.

Wednesday, the judge ruled against the plaintiffs, finding that Ohio Valley HeartCare Inc. could enforce the agreements that Dr. Ralph D. Millsaps and Dr. Julio A. Morera had signed, in which they agreed not to work for Ohio Valley's competitors for two years if they left.

The original noncompete agreements had forbidden Millsaps and Morera from practicing any form of medicine in a 31-county Tri-State area. The doctors, who resigned from Ohio Valley in November and have not treated patients since, sued to get out from under those agreements, contending the terms were overly broad and that their Evansville-area patients' care would suffer.

Though finding for Ohio Valley, Trockman significantly rolled back the noncompete restrictions, finding that Millsaps and Morera will be prohibited from practicing cardiology only in Vanderburgh, Posey, Gibson and Warrick counties, and in Henderson County, Ky., for two years. They still can practice their other disciplines. * * *

In his 17-page decision, Trockman noted that the American Medical Association opposes such noncompete agreements. "When restrictive covenants are enforced, they force discontinuity of care, and physician-patient relationships are involuntarily terminated," Trockman wrote. "The implications that flow from the disruption caused by enforcing covenants include increased costs of care, decreased quality of care and decreased patient satisfaction."

The judge added: "The time may have come for this state to review the merit of the AMA's declaration that restrictive covenants in physician contracts are contrary to public policy. Prohibiting such covenants may aid not only physician-employees but also their patients and society as a whole."

His decision quickly added that neither the Indiana appellate courts nor the legislature have adopted that view; and as a trial court judge, he is obligated to follow the law as written.

The ILB would like to post a copy of Judge Trockman's opinion, but can't find a fax number or email for the judge or the Vanderburgh Superior Court.

Posted by Marcia Oddi on Monday, February 27, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Law - Telecom bill may be finalized today

"Telecom bill promises big changes: Indiana lawmakers on verge of approval" writes Lesley Stedman Weidenbener today for the Louisville Courier Journal. Weidenbener has covered this story from the beginning, and has another comprehensive report today. It begins:

The Indiana General Assembly is on the cusp of giving final approval to a dramatic change in state laws that govern telephone and cable television services.

As early as today the House could send House Bill 1279 to Gov. Mitch Daniels, who is expected to sign it into law over the objections of the AARP and some consumer groups and to the cheers of business groups and companies such as AT&T.

It will remove price caps on local telephone service, take significant telecommunications oversight away from the Indiana Utility Regulatory Commission and make it easier for companies to provide cable-like video services.

If it becomes law, supporters have promised that major infrastructure investment is right around the corner.

Note: HB 1279 has passed the House and the Senate. The Senate made a number of amendments. The bill is now back in the House, where the members may vote to concur in the Senate changes, or may instead send the bill to Conference Committee.

Check here for a list of all ILB telecommunication coverage.

Posted by Marcia Oddi on Monday, February 27, 2006
Posted to Indiana Law

Sunday, February 26, 2006

Law - Justice Scalia appears before very contentious group

An AP story from last Wednesday, available here, concludes:

[Justice] Scalia generally bars television cameras and sometimes other press from his events. Allowing the talk to be televised live on C-SPAN was a rare move for one of the court's most conservative justices.
And after watching a tape of it last evening on C-Span's American and the Courts, I'd venture that it might not happen again.

The AP report begins:

WASHINGTON -- Supreme Court Justice Antonin Scalia grew tired of a persistent heckler Tuesday and asked organizers of a legal seminar to do something about the outbursts -- gently.

"Don't use force," Scalia told American Enterprise Institute workers as they grabbed the young man's arm and nudged him toward the door. The workers then let go and the man walked out.

It was unclear what Aaron Yule, 23, of Boston, was asking when Scalia turned to organizers and said, "Can you, somebody ..."

Earlier, a microphone had been snatched from the man's hand when he tried to engage the justice in debate. Scalia had asked him whether he had a question, "apart from insults."

After the man left, Scalia answered questions for about 15 minutes but repeatedly declined to engage anyone who asked questions, even of an apparently friendly nature, that he felt were not related to his topic -- the use of foreign law by U.S. courts.

Justice Scalia's talk that preceeded the Q & A was quite interesting and provocative. But few of the questioners, to my view, had any idea of, or interest in, the issues raised by the Justice's speech. Instead:
Topics raised by questioners ranged from U.S. policy in the Middle East to Vice President Dick Cheney's recent hunting expedition during which he shot at a quail but wounded a companion. Scalia and Cheney have hunted together.
Some were hostile, some were rude, and many indicated a complete lack of knowledge of the Supreme Court and the Constitution.

You can see it for yourself here, via American & the Courts, or read the transcipt of Scalia's presentation, without the audience participation, here.

Posted by Marcia Oddi on Sunday, February 26, 2006
Posted to General Law Related

Ind. Decisions - More on: Judge rules Eli Lilly broke research contract

Jeff Swiatek of the Indianapolis Star had a story on Jan. 7th (see ILB entry here) headlined "Judges rules Lilly broke research contract."

Today he has a major report on the case, headlined "ELI LILLY AND CO. VERSUS EMISPHERE TECHNOLOGIES INC. - A case of broken trust: Promising alliance fell apart when collaborator found Eli Lilly guilty of duplicity," that fills nearly two pages of the Sunday Star.

Here are several quotes from the story, that is best read in full:

Dr. Michael Goldberg, the head of a tiny company called Emisphere Technologies, doesn't trust Eli Lilly and Co. anymore.

Not since he concluded Lilly tried to swipe his firm's best idea -- a drug carrier compound worth millions or maybe billions of dollars.

Not since the research contract between the companies fell apart and he found Lilly had set up a secret team to test Emisphere's compounds in ways that violated the agreement.

And especially not since Emisphere spent millions of dollars defending itself against a breach-of-contract complaint filed by Lilly, a lawsuit that backfired last month when a judge ruled Lilly was the one that breached the contract.

"You can only describe it as a bully trying to beat up on the weaker party," said an upset Goldberg of his dealings with Lilly. "None of us really believed this could happen. It was really shocking."

Lilly denies any wrongdoing in the case. Spokesman Philip Belt calls the Emisphere case "an anomaly" at Lilly. It's the only time in recent years that Lilly has sued one of its research partners, he said, and "shouldn't be seen as a new trend or indication of how Lilly does business."

Belt said Lilly won't discuss specifics of the dispute. He also wouldn't elaborate on his comment that "there are learnings to be made here" for Lilly.

The ruling by federal judge David F. Hamilton that Lilly breached its contract with Tarrytown, N.Y.-based Emisphere has sent ripples of concern through an industry where trust is the linchpin in thousands of similar exploratory deals.

From near the end of the very long report:
Throughout the legal wrangling, Goldberg and other Emisphere officials still knew nothing of the secret team. It wasn't until Lilly's suit went to trial in January 2005, in U.S. District Court in Indianapolis, that Goldberg found out about the team. "A Perry Mason moment," he calls it now.

At trial, Lilly witnesses testified that the drug maker formed the team to better understand how Emisphere's carrier compounds work. Havel said no Emisphere scientists were asked to join the team because Lilly "didn't have any confidence" they would contribute much of value.

That explanation amounted to Lilly saying, "We had to steal the technology in order to help them use it better," said Underwood, Emisphere's attorney.

The judge wasn't buying it.

Lilly's explanation for forming the secret team "was offered first at trial and it is not supported by contemporaneous documents or other evidence," Judge Hamilton wrote. "Lilly managers were very much aware of potential problems with Emisphere resulting from this secret . . . research project." * * *

Hamilton's 60-page ruling amounts to a judicial spanking of Lilly. The company "actively concealed for several years" the research it did using Emisphere- supplied materials and later created "a sanitized paper trail" to make it seem like the secret research didn't draw on proprietary Emisphere technology, the judge said.

With the partnership now dead, Lilly must turn over to Emisphere materials and data it was given during the partnership, said Underwood, the Emisphere attorney. "Getting it back from Lilly doesn't really mean a whole lot," he added. "And I'm not sure Emisphere has any great confidence Lilly will abide by those restrictions" to cease working with the carrier technology.

The judge has yet to rule on Emisphere's charge of patent infringement against Lilly. Emisphere also is expected to ask the court to order Lilly to pay damages, which are as yet unspecified but could be substantial, Goldberg said. Either company could appeal after the judge's final rulings.

Access the ruling in Lilly vs. Emisphere Technologies here.

Posted by Marcia Oddi on Sunday, February 26, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Law - "Dems might take hike to oppose Toll Road lease"

The ILB has not ccovered the toll road issue, but this story from today's Munster (NW Indiana) Times, by Royal M. Hopper III, bears watching:

MERRILLVILLE | It appears the lease of the Indiana Toll Road to an Australian-Spanish consortium is all but signed, but Senate Democrats are considering a legislative walkout as a last-ditch bid to thwart the deal, state Sen. Karen Tallian told a town hall meeting Saturday.

The plan to lease the 157-mile highway across northern Indiana for $3.8 billion to an Australian-Spanish consortium that would operate and maintain the road for 75 years is pending in the Senate after it narrowly won approval last month in the Indiana House. The proposal is expected to come up for a vote in June, but not if Senate Democrats can help it.

They might emulate outnumbered Texas Democrats who two years ago went to Oklahoma to deny the Legislature the quorum it needed to hold a vote on congressional redistricting that Democrats considered too gerrymandered.

Posted by Marcia Oddi on Sunday, February 26, 2006
Posted to Indiana Law

Ind. Law - Terre Haute Tribune-Star editorial: "A heroic effort for public access"

"A heroic effort for public access" is the headline to this story today in the Terre Haute Tribune-Star, about the Kokomo student's battle with the city's mayor over an e-mail list. (For background, start with this Feb. 22nd ILB entry.) Some quotes from the editorial:

Every once in a while, a hero emerges in the fight to keep government records open to the public.

Such was the case in Kokomo recently when a savvy 16-year-old had the audacity to make a public records request of his community’s mayor. * * *

So Nees filed suit under the state’s access to public records law. Again, he won the argument. A Howard County judge ruled that the e-mail list is a public record and ordered the city to release it and to pay the teen’s attorney fees and court costs.

Mayor McKillip is contemplating an appeal. His resistance is based on a contention that those who sign up for his e-mail newsletter should not have to worry about the addresses being accessible to the public and potentially used for other purposes. He also denies using the list to distribute campaign materials.

Unfortunately, there is also a move afoot in the Indiana General Assembly this year to exempt e-mail lists compiled by public officials from the public records law. Such an exemption is a bad idea and would represent a serious erosion in the public’s ability to scrutinize its public officials. * * *

Once an e-mail list is compiled, *** it should remain accessible to public scrutiny. The potential for inappropriate use of the lists by public officials themselves is too great for them to be sealed from public view.

We hope Ryan Nees gets these public records soon, and we urge lawmakers to resist the effort to further restrict access laws as they pertain to e-mail lists.

The bill, SB 205, is eligible for final passage in the House this week. If it passes, it will go directly to the Governor, because the House has made no changes.

Note: Apparently this Senate bill eluded Senator Garton's "long-standing rule", as reported in stories about his killing the wine shipping bill and earlier, one of the canned deer hunting bills, because of litigation pending. At the time SB 205 was in the Senate, litigation was pending. And it technically still is pending -- the Kokomo mayor may file an appeal.

One might assume that the mayor would have little reason to appeal if the legislation passes. But the fact is that, under the judge's ruling, he/Kokomo is responsible for all the legal fees in the case they lost. Access the opinion here.

[To access all entries on this issue, type "Kokomo" in the seach box.]

Posted by Marcia Oddi on Sunday, February 26, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Government | Indiana Law

Courts - Kentucky trial of ex-judge - was he the victim of his rivals, or was he guilty of theft by deception?

A long and intriguing story today in the Louisville Courier Journal, written by Michael Lindenberger and Andrew Wolfson, is headlined "Ex-judge to answer his critics at own trial." Here is just the beginning:

To former Judge William Stewart, looking back, his ouster from the bench began with a silent coup pulled off by his Shelby County courthouse rivals. Now he will get his chance to prove it.

Tomorrow, he and his wife, Sarah Dutton, will stand trial on charges of theft by deception.

In a trial that has been moved to Franklin Circuit Court and is expected to last more than a week, Stewart is accused of authorizing full-time pay for Dutton when she was working half time for him. The attorney general's office, which is prosecuting the pair, said that resulted in overpayments to Dutton of between $30,000 and $40,000.

But the couple's lawyers plan to put Stewart's accusers on trial -- the four top officials who Stewart says tried to bring him down for their own gain. All four have been subpoenaed to testify.

"Sarah and I feel like this is our chance for the citizens -- those people without any special interest -- to see everything all out in the open," Stewart said in an interview last week.

To Stewart, 61, the beginning of the end of his 20-year judicial career came in 2004, when the group of four -- District Judge Mike Harrod, then-County Attorney Charles Hickman, Assistant County Attorney Hart Megibben and Commonwealth's Attorney Fielding Ballard III -- began meeting repeatedly. They were devising an anonymous letter accusing Stewart of an array of misconduct, according to Ballard.

The allegations included claims that Stewart padded his wife's time sheets and favored black and Hispanic defendants.

Warning of "blood on the streets" if Stewart stayed in office, the April 6, 2004, letter to Kentucky's Judicial Conduct Commission was signed "many concerned citizens" and hinted that one would be killed if he went public.

But it was written by Ballard and edited by Hickman.

Ballard kept his role as author secret for more than a year. When threatened with contempt charges by Stewart's lawyers, he admitted he had written it -- with contributions from Harrod, Hickman and Megibben, he said.

Posted by Marcia Oddi on Sunday, February 26, 2006
Posted to Indiana Courts

Environment - Selling off parts of national forest in Indidna and Kentucky

The federal plan to sell off parts of the national forest, last written about in the ILB on Friday, is the subject of a story by James Bruggers in the Louisville Courier Journal today. Some quotes:

A Bush administration proposal to sell up to 309,000 acres of national forest land, including more than 4,500 acres in Kentucky, is a "misguided and short-sighted" example of "irresponsible fiscal policy," U.S. Rep. Ben Chandler says.

It's "frightening," he said, that "our very own Daniel Boone National Forest is at risk of having land parcels sold to the highest bidder for private development."
* * *

A Courier-Journal survey of Kentucky and Indiana congressional leaders shows Chandler is joined in his concern by two Republicans, while the others who responded to the newspaper's queries said they are reserving judgment until more information is available.

As outlined Feb. 10 by the U.S. Department of Agriculture, the Bush plan to sell 2,900 parcels nationwide -- 47 in Kentucky -- would raise $800 million over five years so the government can continue its payments for schools and roads in counties with forest holdings for five more years.

While federal officials initially said no Hoosier National Forest land in Indiana would be sold, they subsequently identified 24 parcels totaling 868 acres tentatively scheduled for the auction block. * * *

Kentucky's two Republican senators, Mitch McConnell and Jim Bunning, and Rep. Ron Lewis, R-2nd District, said through their spokesmen that it's too soon to comment, as did the office of Sen. Richard Lugar, R-Indiana. Rep. Harold "Hal" Rogers, whose 5th District in Kentucky includes most of the Boone, said: "We are at the very beginning of the budget process and it is clear that this issue will require further discussion."

Sen. Evan Bayh, D-Indiana, and Rep. Mike Sodrel, R-9th District in Indiana, did not respond to requests for their views.

Posted by Marcia Oddi on Sunday, February 26, 2006
Posted to Environment

Ind. Law - Shooting inquiry raises questions: Harrison County prosecutor accused of cover-up

"Shooting inquiry raises questions: Harrison prosecutor accused of cover-up" is the headline to this story today by Harold J. Adams in the Louisville Courier Journal. Some quotes:

The Indiana State Police detective leading an investigation into a police shooting last month along Interstate 64 in Harrison County refused yesterday to say whether the investigation report is finished.

The time it has taken to do the report has prompted the Louisville-based Justice Resource Center to accuse Harrison County Prosecutor Dennis Byrd of a potential cover-up and ask that he be investigated by the Indiana Supreme Court.

Byrd said, however, that there is no cover-up and that he simply needs more information from investigators before any action is taken.

The prosecutor will use the information to assess whether five officers acted properly Jan. 20 when they fired at a man wanted for shoplifting in Louisville.

The unarmed suspect, 36-year-old Trent Marion of Louisville, was wounded in both wrists and the right eye at the end of a chase that began at a Kroger store in Louisville's Portland neighborhood and ended with the shooting two miles west of the Corydon exit along I-64. * * *

But the Rev. Louis Coleman, director of the Justice Resource Center, said the investigation has taken too long. The group has asked Byrd to make the investigative reports public and to remove himself from the case.

"When we found out that he is going to investigate some of his peers who work in the sheriff's department, some of his peers who work in the Corydon Police Department, we thought there was a strong conflict of interest," Coleman said yesterday.

His group has asked the Indiana Supreme Court Disciplinary Commission to investigate Byrd's handling of the case and has filed a complaint with the Indiana attorney general's office.

"We would like the report made public and not swept under the rug as it appears Prosecutor Byrd is attempting to do," says a Feb. 15 letter from Coleman to Attorney General Steve Carter.

Posted by Marcia Oddi on Sunday, February 26, 2006
Posted to Indiana Law

Ind. Courts - "Statehouse prayer case belong in courts"

"Statehouse prayer case belong in courts" is the headline to an editorial today in the Lafayette Journal & Courier. Some quotes:

Don't members of Congress have more important issues than the content of prayers at the Indiana Statehouse?

U.S. Rep. Mike Sodrel, a Republican, is reacting to a federal judge's ruling that says proceedings at the General Assembly can begin with a prayer, but not a prayer that favors one religion over another such as Christianity.

Sodrel has introduced a bill that would prevent federal courts from ruling on the content of speech in legislatures.

Specifically, the bill would provide immunity for lawmakers and their guests during a legislative session, excluding witnesses and treasonous speech, admission of a crime or a breach of the peace. The bill would also prohibit the use of federal funds to enforce a decision such as the federal ruling.

The bill is unnecessary and unreasonable. Most importantly, the proposed law would prevent a court from ruling on what actions and activities are constitutional. Didn't our social studies teachers tell us that's what the courts were set up to do? * * *

It is easy to go after a judge's unpopular decision. But Indiana and the country would be better off seeking solutions to pressing problems such as security, rising health care costs, road construction and improvement, and taxation, to name a few.

Posted by Marcia Oddi on Sunday, February 26, 2006
Posted to Indiana Courts

Ind. Law - South Bend Tribune on lawmakers' perks

The South Bend Tribune has an excellent editorial today headlined "Lawmakers should tell all about their perks." Some quotes:

Members who retire from the Indiana General Assembly don't deserve better, cheaper health care benefits than other retired state workers. Other retired workers have to pay for their health insurance. So should retired legislators.

That is only fair and only stands to reason. But it most assuredly has not always been the case. And it still won't be the case for state senators.

Just as disturbing as the practice of loading on benefits for themselves while being close-fisted with other state workers is the secrecy the legislature maintains. Its members would rather that you don't know how much their insurance and pension benefits are costing taxpayers.

Only since January, when a new federal rule required corporations and governments to report unfunded retirement liabilities (other than pensions), has the General Assembly addressed its overly-generous and self-granted retirement perks. But it hasn't gone nearly far enough.

The federal rule means the General Assembly no longer may budget health insurance in one big lump for current and former members. It must determine actual costs. To comply with the rule, state Auditor Connie Nass has asked for budget approval for an actuarial study on the lifetime costs of legislators' insurance. * * *

Senate leaders apparently haven't been quite so uncomfortable. They're hanging on to their retirement bonanza. Oh sure, they've tweaked it a bit. * * * The changes in the Senate will save taxpayers money, Senate leaders say. But they won't say how much. In order to say how much they would have to say how much the current plan is costing the state. That's one of the mystery numbers they're so loathe to disclose.

Another mystery number is the cost to taxpayers of individual legislators' 401(k) plans. Its disclosure isn't mandated by the new federal rule. It is known that, for all 100 House members and 50 Senate members, the taxpayers' burden to match 401(k) dollars was $1.17 million in 2005.

That might sound like a lot -- but not if you know that every dollar legislators invest in a 401(k) is matched four-fold by the state. To pay $1 and get $4 more? That is the 401(k) of most Hoosiers' dreams.

Are the Senate retirement health plan and the legislators' 401(k) plans too generous? Considering the wages and benefits of other state workers, we think so.

But the better question is: What do you think? The legislature is no place for secrets. It ought to disclose in clear terms the dollar value of each member's compensation: pay, per diem, health care benefit and pension. Then voters can decide for themselves whether their investment is well placed.

No mention, though, about Indianapolis Star columnist Matt Tully's revelation earlier this week (see ILB entry here) that South Bend's "House Democratic leader Pat Bauer, the tipsters [say], has told his rank and file he plans to resurrect the notorious lifetime health plan for ex-legislators if he is elected speaker after the November elections."

Posted by Marcia Oddi on Sunday, February 26, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Law - "Proposals advance to widen gun rights"

"Proposals advance to widen gun rights: Legislature considering lifetime permits, deadly force" is the headline to a comprehensive story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

Hoosiers could obtain lifetime gun permits and new protections when using deadly force under legislation being considered by the General Assembly.

A third, and more controversial, firearms measure prohibiting employers from banning guns from their parking lots was taken out of a bill last week and appears dead.

Several of the proposals are being pushed by the National Rifle Association in other states as well, including Kentucky, Michigan and Florida. The language is contained in a number of bills that could receive key votes this week in the legislature.

The first is House Bill 1028, which was stripped of the employer-employee gun section that has resulted in several legal fights around the nation. * * *

Senator Nugent is still supportive of the remaining part of the bill – what he calls the right of Hoosiers to “stand your ground.” Essentially the language says that people being robbed in their homes or carjacked do not have a responsibility to retreat.

“Shoot first and ask questions later,” one Detroit Free Press story said about a similar bill being heard in the Michigan Senate.

Nugent said that sometimes attorneys in court make it seem that victims should have run away or called police, rather than defended themselves from harm with a gun. This law will clear up that inference in cases of justifiable homicide, he said.

“This says you can use deadly force if you deem it appropriate,” Nugent said. “It puts in statute what courts have been doing already.”

The Kentucky House is also preparing to vote on this measure, according to a Louisville Courier-Journal report last week. The NRA is lobbying lawmakers in 13 states on the no-retreat issue.

This language is also contained in Senate Bill 54, in which a third homegrown idea appears – allowing Hoosiers to have lifetime gun permits instead of reapplying every four years.

Currently a person applies at a local police department or sheriff’s office, paying a $25 fee, $15 of which goes to the Indiana State Police and $10 stays with local authorities.

A local investigation is completed, which includes fingerprints, and the officer sends the information along with a recommendation to the state police. A second background check is done at that level and then the state police issue a four-year permit or license.

But under Senate Bill 54 – as well as House Bill 1176 – that would all change. * * *

During debate in the House on House Bill 1176, which passed 78-21, there was some concern that without a thorough vetting every four years people who should not own a gun because of criminal activity or other factors will slip through the cracks.

Steve Hillman, spokesman for the state police, said the agency continually runs new convictions against the gun licensing database to make sure permits are revoked when necessary.

But he does concede that some “character information” that is more readily available on a local level might be jeopardized. This could include arrests – but not convictions – as well as local court orders in divorce proceedings that prohibit someone from possessing a gun. * * *

Gov. Mitch Daniels said Thursday he is “fine” with the bill and would sign it into law.

The ILB had stories on the "no retreat" provisions of SB 54 and HB 1028 yesterday (Feb. 25th) and Friday (Feb. 24th). Yesterday's ILB entry remarked: "Both bills appear to be flying below the radar, as the ILB has seen no stories in Indiana papers."

Posted by Marcia Oddi on Sunday, February 26, 2006
Posted to Indiana Law

Ind. Courts - Certified specialties and limitations on law firm names

Ed Feigenbaum has agreed to share this story from the Feb. 27th issue of his weekly publication, Indiana Legislative Insight:

Attorneys and law firms may soon be able to be a bit more descriptive in their trade names. The Indiana Supreme Court late last month ordered the Supreme Court Disciplinary Commission to submit an amicus curiae brief addressing three questions:
  • Does the use of the word “bankruptcy” in “The Bankruptcy Law Offices of Mark S. Zuckerberg, P.C.” violate the Indiana Rules of Professional Conduct?

  • If so, should the Rules be amended to permit law firm names such as the one Zuckerberg desires?

  • If so, show should the Rules be so amended?
The Disciplinary Commission files its amicus brief noting that the prohibition against use of trade names by attorneys is “grounded in a concern that the names under which lawyers practice not mislead the public,” but “The flat prohibition on trade names masks that underlying concern and sweeps too broadly if applied to the use of trade names that are not misleading and, in some instances, might be of value to consumers of legal services .... By including in law firm name a reference to the exclusive practice area of the firm, the firm name, while technically a trade name, is truthful and not misleading to the public. In fact, by prominently communicating a limitation on the law firm’s area of practice, the firm name may be of value to the public by discouraging potential clients with irrelevant legal problems from wasting time contacting the firm [emphasis added].”

The brief, however, urges that “the flat trade name prohibition” be studied “to give better notice to the bar about what does and does not fall within that prohibition.” While backing the use of the word “bankruptcy” in the trade name matter before the Court, the Commission seeks deferral of additional consideration of the broader application of the trade name prohibition until the Indiana State Bar Association completes its review of the relevant Rules of Professional Conduct.

Here are some materials the ILB has assembled that have relevance to the Indiana Legislative Insight story.

First, here is the text of an early ILB entry, from 3/24/03:

Indiana Decisions - Attorney "Specializing in"
In the Matter of Anonymous (Ind.S.Ct. 3/4/03)
Per Curiam
The Court issued a private reprimand to two attorneys for violating the Rules of Professional Conduct for Attorneys at Law by advertising themselves as "specialists" when they had not been certified as such. Specifically, they placed an ad in the 2001-02 edition of a small, privately-owned directory service in NW Indiana, prominently including the words "Elder Law Specialists."

The Court states "In order for an attorney in this state to hold herself out to the public as a 'specialist,' the attorney must be certified as such pursuant to the provisions of" Rules 30, section 5 and 6 of Indiana Rules of Court - Rules for Admission to the Bar and the Discipline of Attorneys." More:

The respondents were not certified as “Elder Law Specialists” pursuant to Admis.Disc.R. 30. Because the respondents advertised themselves as specialists when in fact they had not been so certified, we find that they violated Ind. Professional Conduct Rule 7.1(b) by using or participating in the use of a form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim. Within the non-exclusive list of such statements or claims is any statement or implication that “a lawyer is certified or recognized as a specialist other than as permitted by Rule 7.4.” ... A lawyer is not prohibited from communicating the fact that the lawyer does or does not practice in particular fields of law, but may not express or imply any particular expertise except as otherwise provided in Prof.Cond.R. 7.4(b). Prof.Cond.R. 7.4(a).
Second, what do the Court's rules say?

Rule 7.5(b) of the Rules of Professional Conduct [Rule 7.5. Professional Notices, Letterheads, Offices, and Law Lists] states in part:

A lawyer shall not practice under a name that is misleading as to the identity, responsibility, or status of those practicing thereunder, or is otherwise false, fraudulent, misleading, deceptive, self-laudatory or unfair within the meaning of Rule 7.2, or is contrary to law. In that it is inherently misleading, a lawyer in private practice shall not practice under a trade name.
Rule 7.4, Communication of Specialty Practice, provides:
When the communication otherwise meets the requirements of Rules, 7.2, 7.3, and 7.5, a lawyer may:

(a) communicate the fact that the lawyer does or does not practice in particular fields of law, but may not express or imply any particular expertise except as otherwise provided in Rule 7.4(b);

(b) communicate that the lawyer is certified as a specialist in a field of practice when the certification and communication are authorized under Admission and Discipline Rule 30.

(c) Notwithstanding subsection (b), a lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation “Patent Attorney” or a substantially similar designation, and a lawyer engaged in Admiralty practice may use the designation “Admiralty,” “Proctor in Admiralty” or a substantially similar designation.

Third, what are the specialities in which an Indiana practitioner may be certified? Here is the Indiana Courts page on Attorney Specialization. Here is the page with the list of Independent Certifying Organizations for Indiana. There are currently four specialities listed in which a qualified Indiana practitioner may be certified:
Business and Consumer Bankruptcy;
Civil Trial Advocacy and Criminal Trial Advocacy;
Elder Law; and
Family Law.
Using the page, certified Indiana practitioners may be located.

Posted by Marcia Oddi on Sunday, February 26, 2006
Posted to Indiana Courts

Saturday, February 25, 2006

Ind. Law - Several interesting zoning stories this week

"Property rights versus farmland protection at issue in Porter County rezoning" was the heading to an ILB entry dated Dec. 16, 2004, quoting from a very good report in the Chesterton Tribune, written by Vicki Urbanik. That story, which is still available online, began:

A pending rezoning in south Porter County highlights the dilemma facing a growing county with rich farmland: At what point is a landowner’s right to develop outweighed by the goal of preserving one’s rural heritage?

That issue will be among the many to be hashed out in the months ahead as county planners work to overhaul the zoning and subdivision control ordinances affecting the unincorporated areas. The current land use plan calls for farmland preservation, but that plan is only a guide. It will be up to the rewritten ordinances to spell out precisely how farmland can be protected in the face of development.

This week, more than a year later, Ms. Urbanik has two more reports on zoning in the Tribune. The first, from Wednesday, was headlined "Commissioners nix residential rezoning of agricultural land for subdivision." It begins:
It was the classic rezoning case, pitting a farmer who wants to develop his property for a new subdivision against neighboring residents who say they want to maintain their rural quality of life.

In the end, Porter County Commissioners John Evans and Robert Harper both voted Tuesday against the petition of Keith Freyenberger, who wanted to rezone his agriculturally zoned land off Ind. 8 to Rural-Residential in order to develop a 22-lot subdivision on the 40 acres.

Though the case involved land in Pleasant Township, the arguments raised and the impact of the decision have countywide implications, since the case is one of many in which county officials must weigh the sometimes conflicting issues of the rights of property owners to develop, the impact on the county’s current zoning and land use plan, and the rights of neighbors fighting for their community.

Several of those who spoke against the rezoning say they are long-time residents of the area or that they moved to the community for its rural quality -- complete with the pig farm and the large-scale cattle operation nearby. They also said residential subdivisions ought to be built in or closer to established towns and cities.

Roger Hefner said people who have recently moved to the area have complained about the goats and donkeys at one farm and about the use of fertilizers. “They want to come to the country, but they don’t want the country,” he said.

Other residents said they find it a shame that so much good farm ground in Porter County is being turned into subdivisions. Daryl Jarnecke said property just north of Freyenberger’s is for sale, and that he fears that if the commissioners rezone his parcel, others would want to do the same, resulting in many more subdivisions.

The second, posted Friday, is headlined "County's new zoning ordinance now open for public review." Some quotes:
After about a year of work, Porter County Plan Commission officials have completed their proposed overhaul of the county’s zoning ordinances, resulting in a document that’s much more comprehensive than the 23-year-old rules now in effect.

Plan Commission Executive Director Robert Thompson said the current 1983 zoning ordinances incorporate uses that date back to 1959 -- such as listing telegraph offices among the permitted uses.

He describes the new “Porter County Unified Development Ordinance” as a major change in Porter County’s rules. “We needed a major change,” he said.

The draft ordinance will be the subject of public hearings tentatively set for April at various sites throughout the county. The ordinance must be adopted by the Porter County Commissioners before it can take effect.

Among other things, the draft ordinance establishes new zoning categories and building standards, but doesn’t address where these zones would be. That process will take place later with the development of a zoning map. Thompson said he first wanted to go through the public input process to see how the public feels about the changes in the underlying definitions, categories and uses.

The draft ordinance is on-line, and Thompson said he urges the public to look at the document in preparation for the upcoming public hearings.

The ordinance helps bring the zoning categories in sync with the land use plan adopted several years ago. That plan was never codified but has served as a guide for planning officials. In general, it encourages higher density housing closer to cities and towns and agricultural use and low-density housing in the more rural areas. * * *

Also new are the AG categories. The A1 (general agriculture) zone would cover general farming operations, ag-businesses, and sales of produce and products; it would require a lot size of at least 10 acres. The A2 (prime agriculture) zone is aimed at the “significant protection” of agricultural operations, and would require lots of at least 20 acres. The A3 (intense agriculture) zone is geared toward the industrial side of agriculture, such as confined feeding operations. * * *

The 442-page Porter County Unified Development Ordinance can be accessed on line [here is the direct link].

Meanwhile, at the other end of the state, the Louisville Courier Journal reports today, in a story by Alex Davis, that begins:
A new zoning ordinance for Floyd County is expected to be finished in the next 60 days, giving the county its first overhaul of zoning guidelines in four decades.

The document will replace an ordinance that has changed only slightly since it was approved in 1967. For the first time ever, it will give the county zoning categories such as commercial and industrial for a large swath of suburban and rural areas.

"It's what we've needed for a long time," said Carol Tobe of the Save Our Knobs citizens group, which focuses on planning and zoning issues.

Tobe said the county's existing zoning -- which consists of a single generic category called "agricultural/residential" -- offers no guidance on sensitive matters such as the best place to build a subdivision or commercial development.

Instead, a landowner who wants to make almost any modification to a property -- from a new building to a lease with a prospective tenant such as a shopping center -- must seek a "conditional-use" permit.

Don Lopp, the county planner, said the steps required to obtain that permit are part of a "very long process" that includes public meetings, paperwork and the approval of the county's Board of Zoning Appeals. * * *

The new zoning ordinance will establish a series of categories, including three types of commercial districts, four types of residential districts and two types of industrial districts.

Lopp said the categories generally will be based on existing uses and infrastructure. A commercial district, for example, would most likely need sewer and water service, along with high-capacity roads. Rural areas would be targeted for lower-density residential or agricultural categories.

Posted by Marcia Oddi on Saturday, February 25, 2006
Posted to Environment | Indiana Government | Indiana Law | Indiana economic development

Ind. Law - More on: Garton kills wine bill compromise, says let court decide

Donovan Estridge of The Madison Courier reports today in a story headlined "Senate leader kills wine shipping compromise" that:

After months of negotiating and compromising, a bill limiting direct shipping for Indiana wineries was killed Thursday night by the Senate leader. His action took Jefferson County winery owners by surprise.

The bill was killed by Senate Pro Tem Robert Garton, R-Columbus, because of a pending lawsuit on the issue. The lawsuit, Baud vs. Indiana, challenges the state’s three-tier system for wine shipping. Garton said he killed the bill so the Senate would not become involved in deciding the outcome of lawsuits.

On Wednesday, local winemakers traveled to Indianapolis to attend a Senate Commerce and Transportation committee hearing on the bill. During the four-hour committee meeting, a compromise was reached between state wineries and wholesalers that would allow wineries to continue shipping their products.

“This is a total left-field surprise,” Thomas Family Winery owner Steven Thomas said this morning. “I am absolutely 100 percent surprised. I walked in this morning and haven’t been able to drink my coffee yet.”

Thomas and Madison Vineyards owners Sandy and Steve Palmer were in Indianapolis when a compromise was reached Wednesday. After the committee hearing, they claimed victory for the wine industry. The victory was short-lived, though, when the bill was killed 24 hours later.

“We are now at the mercy of the courts,” Sandy Palmer said.

As local wineries try to piece together the facts behind the legislative action, they must sift through unknown territory. During the committee hearing Wednesday, wholesalers and winemakers agreed that if no legislative action is taken, the state’s wine industry will enter a quagmire of litigation.

In Kentucky, a bill is still pending, but it "would require in-state wineries to go through wholesalers," reports this AP story published by the Lexington Herald-Leader.

Posted by Marcia Oddi on Saturday, February 25, 2006
Posted to Indiana Law

Environment - "Company suing to open medical waste facility"

"Company suing to open medical waste facility" is the headline today to a story in the Gary Post-Tribune. For background on this ongoing dispute, see this ILB entry from Dec. 15, 2005. Some quotes from today's story, by Andy Grimm:

EAST CHICAGO — Despite a resounding defeat by county regulators and opposition from City Hall, a local company will try to get a court to let it open a medical waste plant.

Abrade Technologies has sued the Lake County Solid Waste Management District, claiming district officials ignored evidence the area needs a facility to get rid of contaminated medical trash.

The lawsuit is the latest in a controversy that has dragged on for more than two years, as Abrade owner Anthony Portone has sought to open a medical trash processing plant on an industrial site off Canal Street over the objections of a coalition of area churches. * * *

The county already is in state appellate court fighting a medical waste plant that opened in Gary in 2004 with approval from the state Department of Environmental Management.

Posted by Marcia Oddi on Saturday, February 25, 2006
Posted to Environment

Law - Use of tax incentives for economic development to be argued before the Supreme Court

This ILB entry from September 03, 2004 is titled "Significant tax ruling may impact Indiana." A quote from the Louisville Courier Journal at the time:

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

The three-judge panel's decision covers the four states in its circuit: Kentucky, Ohio, Tennessee and Michigan.

Though an appeal is planned, the initial concern is that the ruling, which goes into effect immediately, could put the four states at a disadvantage keeping or recruiting businesses.

The 6th Circuit decision, the 6th Circuit decision, Cuno v. DaimlerChrysler Inc., is available here. In this September 28, 2005 ILB entry we reported that the U.S. Supreme Court had agreed to hear the case.

Oral argument is set for next Wednesday, March 1, 2006. For an unusual look at the case, see this story from The Northeastern News (the Students' Newspaper of Northeastern University, Boston MA), which reports:

A case will go before the United States Supreme Court March 1 that will represent several years of work - most of it done by Northeastern Law School students and law professor Peter Enrich.

The case, Cuno v. DaimlerChrysler, involves the constitutionality of corporate tax breaks, and stems from an article written by Enrich in the Harvard Law Review in 1996.

"States have been in this race with one another to see who can give the most attractive incentives, usually in the form of tax breaks, to businesses," Enrich said.

These incentives entice large businesses to build in a particular state. Cuno argues such tax breaks violate the U.S. Constitution's commerce clause.

About a year after his article was published, Enrich was contacted by consumer advocate and former presidential candidate Ralph Nader, and he agreed to take up the cause of a group in Toledo, Ohio, including Charlotte Cuno. The group was upset that the state planned to award nearly $300 million in tax incentives to DaimlerChrysler, which planned to put a Jeep plant in the city.

While DaimlerChrysler had the backing of the Ohio Attorney General's Office and a powerful Toledo law firm, the plaintiffs' lawyers "were basically a solo guy … who had never done a tax case, and me," Enrich said. "That was the entire legal team at that time." That's where the students came in.

The Indianapolis Star carried an AP story about the case in its Business section today. Some quotes:
The high court will hear arguments Wednesday about the constitutionality of the tax break Ohio used to persuade DaimlerChrysler AG to build the assembly plant. The decision could have national impact because nearly every state uses tax breaks or other incentives to attract companies.

The former neighbors -- who received legal help from consumer crusader Ralph Nader -- say taxpayers should not have to pay for private businesses wanting to expand or move their operations.

The 6th U.S. Circuit Court of Appeals in Cincinnati sided with the neighbors two years ago, striking down Ohio's practice of granting companies tax credits on new equipment. The court said the practice hinders interstate commerce because the incentives are available only to businesses that invest in Ohio.

Business groups and lawmakers in several states say that ruling could hurt economic development throughout the nation and put U.S. manufacturing at a disadvantage against foreign competitors.

The ruling also could jeopardize tax breaks for job training and research and development that states use to lure businesses, said Dorothy Coleman, vice president for tax and domestic economic policy with the National Association of Manufacturers.

"Incentives play a role in deciding where you're going," she said. "And it affects the abilities of states to attract businesses."

Toledo grew with the glass and auto industries. Its proudest product is the Jeep, which first rolled off the assembly line here in 1941.

To keep Jeep in the city, the state and city put together an incentive package worth about $300 million for a new assembly plant. It was one of the most lucrative packages ever given to a corporation in the U.S. The plant opened in 2001 and has about 3,600 hourly workers.

To clear the way for the factory, the city bought and leveled about 80 homes and 16 businesses. Some homeowners complained that the city offered them less than their homes were worth.

Here is the Medill Journalism School's page on the case, summarizing the issues, etc. Here are links to the merits briefs.

Posted by Marcia Oddi on Saturday, February 25, 2006
Posted to General Law Related

Ind. Gov't. - DNR employees get $3 million from suit

The Richmond Palladium-Item reports today:

The state of Indiana will pay a $3 million settlement to some current and former Department of Natural Resources employees to settle a class action lawsuit over payscales.

In addition, the settlement calls for a $400,000 aggregate salary adjustment for members of the class. Both amounts include applicable attorney fees and employee withholdings.

The adjustment in wages will begin April 9 and will show up in paychecks covering that date.

The class action lawsuit was initiated by employees in 1998 over the application of Public Law 70, which went into effect on July 1, 1996.

It called for a survey of state government classification systems and salary schedules for professional employees in the natural resources professions from nine states.

Based on that survey, the State Personnel Department was to prepare a classification system and salary schedule for professional employees of the DNR. Public Law 70 expired by its own terms on July 1, 2001.

The state has denied and continues to deny any wrongdoing with respect to the application of Public Law 70.

In 2003, the trial court granted the state's motion for dismissal, but plaintiffs appealed and the appeals court affirmed in part and reversed in part.

The case was sent back to the trial court. The state then filed a petition to transfer the case to the Indiana Supreme Court, but that action was stayed pending the settlement agreement that was reached Feb. 2.

"I am very pleased that we were able to reach a settlement with the current and former DNR employees that were members of the class," said DNR Director Kyle Hupfer in a press release. "This litigation had gone on for far too long and bringing it to a fair and reasonable conclusion allows the DNR to move forward with total focus on fulfilling its mission. This settlement allows the DNR to have a level of certainty with respect to fiscal management and allows the involved employees to focus on their work without the continued distraction of a lawsuit."

Posted by Marcia Oddi on Saturday, February 25, 2006
Posted to Indiana Government

Ind. Law - More on: "No retreat" bill advances

"House OKs bill to shoot intruders: Burglars, carjackers fair game under plan" is the headline to this story today in the Louisville Courier Journal. Some quotes:

House Bill 236 would put into state law a 1931 appellate court decision that says Kentuckians do not have to retreat from a threat. The bill also says self-defense shooters would be immune from prosecution or civil lawsuits.

Opponents said the measure encourages people to resort too quickly to deadly force and could result in mistaken shootings where victims or their families would be denied legal recourse.

Rep. Reginald Meeks, D-Louisville, who voted against the bill, called it "dangerous public policy." * * *

Lawmakers in Indiana are considering similar legislation. House Bill 1028 passed the House 82-18 there earlier this month and is under consideration in the Senate, where it is expected to pass. * * *

The National Rifle Association supports the bill and is pushing similar legislation in 15 other states plus South Dakota, which passed such a law last week, said NRA spokesman Andrew Arulanandam.

Indiana HB 1028 was passed out of Senate committee Feb. 23rd. Another Indiana bill, SB 54, is currently eligible for final passage in the House. Both bills appear to be flying below the radar, as the ILB has seen no stories in Indiana papers.

For background, see this ILB entry from Feb. 23rd.

Posted by Marcia Oddi on Saturday, February 25, 2006
Posted to Indiana Law

Ind. Decisions - Supreme Court grants transfer to Outback Steakhouse case

The Muncie Star-Press reports today that:

The Indiana Supreme Court decided this week to review a $39-million civil judgment awarded to a Muncie couple who sued Outback Steakhouse.

A Delaware Circuit Court 1 jury in June 2003 found in favor of David and Lisa Markley, who were severely injured when their motorcycle was struck by a drunken motorist on July 21, 1997.

The couple alleged the driver, William Whitaker of Albany, became intoxicated at the grand opening party at Outback's Muncie restaurant. Witnesses said alcoholic beverages were served free of charge or for as little as a dime each.

The Indiana Court of Appeals upheld the $39-million judgment last July. * * *

In earlier attempts to have the jury's rulings set aside, the restaurant's attorneys focused on the testimony of a former Outback waitress, Patrice Roysdon.

The waitress had testified in a 2001 deposition that Whitaker "appeared fine" at the restaurant's grand opening. At the trial two years later, however, Roysdon said her earlier statements had been false, and that Whitaker was indeed drunk.

Outback's attorneys maintained in their most recent appeal that the legal team for the Markleys -- Muncie lawyers Michael J. Alexander and Donald McClellan -- should have informed them of Roysdon's intention to change her story, revealed in an interview with the Muncie attorneys a day before she testified.

Here is the now vacated Court of Appeals 21-page decision in Outback Steakhouse of Florida, Inc., et al v. David D. & Lisa K. Markley (7/25/05), which concluded:
The Markleys’ counsel’s violation of T.R. 26 in failing to disclose witness Roysdon would change her testimony, while misconduct, does not require reversal because Outback chose to cross-examine Roysdon; the trial court’s refusal to give Outback’s tendered instruction on non-party fault and its limitation of Outback’s impeachment of witness McLaren were not abuses of its discretion; and the jury’s damage award against Outback was supported by the evidence. We must accordingly affirm.

Posted by Marcia Oddi on Saturday, February 25, 2006
Posted to Ind. Sup.Ct. Decisions

Environment - "De Groot faces charges over construction"

A story in the Huntington County Herald-Press, by Judy Fitzmaurice, reports:

A Polk Township farmer who has sparred with state regulators over complaints of pollutant runoff from his dairy "megafarm" faces new legal troubles - but these have nothing to do with manure.

Superior Judge Jeffrey Heffelfinger found probable cause Friday morning to charge Johannes de Groot, 53, 8378W-200S, Andrews, with two felony counts of violating environmental management laws. De Groot owns and operates de Groot Dairy Farms, south of Andrews near Ind.-105 and CR 200S.

According to court records, de Groot allegedly built two structures - a dry cow barn and a silage pad - on the dairy farm property between June 1, 2005 and Sept. 13, 2005 without first obtaining approval from the Indiana Department of Environmental Management (IDEM). Records indicate he did, however, obtain a building permit from the Huntington Countywide Department of Community Development for the structures in January 2005. * * *

A warrant has been issued for De Groot's arrest but as of late Friday morning it had not been served. Bond is set at $7,000.

De Groot received five notices of violations from IDEM regarding runoff from the farm before an order to cease the application of manure onto farm land was issued in Huntington Superior Court in October 2003. He pleaded guilty to a misdemeanor charge of intimidation in November 2003 for threatening a state environmental inspector conducting an inspection at the farm.

The Fort Wayne Journal Gazette has a story by Angels Mapes that reports:
IDEM public information officer Amy Hartsock said De Groot has not been keeping livestock in the barn, to IDEM’s knowledge, and there are no immediate environmental threats related to the charges.

De Groot applied for permits after the structures were built, Hartsock said. IDEM is currently reviewing those applications.

De Groot’s attorney, Peter Racher of Indianapolis, said Friday that De Groot has been careful to comply with environmental laws. He said he was “astonished” that the state had filed criminal charges against De Groot.

“There is no allegation, nor could there be, that there is any environmental impact from these violations,” Racher said. “This is a paperwork violation.”

Huntington County Deputy Prosecutor Jamie Groves said IDEM led the most recent investigation of De Groot Dairy. The agency presented its case to the prosecutor’s office Tuesday, and the prosecutor’s office felt there was sufficient evidence of criminal wrongdoing, Groves said.

De Groot’s dairy drew fire in 2003 when manure contamination was found twice in 11 days in the George W. Young drain, about a mile and a half from the Salamonie Reservoir and near the dairy. De Groot reached a settlement with IDEM in 2004, in which he agreed to pay $45,000, to be split between IDEM and the state attorney general’s office.

Posted by Marcia Oddi on Saturday, February 25, 2006
Posted to Environment

Friday, February 24, 2006

Ind. Gov't. - Governor Daniels to be on C-SPAN

Sunday's morning's Washington Journal will feature the following:

Sunday, February 26
7:30am - Gov. Brian Schweitzer (D-MT)
8:00am - Gov. Mike Huckabee (R-AR)
8:30am - Gov. Mitch Daniels (R-IN)

Posted by Marcia Oddi on Friday, February 24, 2006
Posted to Indiana Government

Courts - Polygamist Judge Ordered Off Utah Bench

"Polygamist Judge Ordered Off Utah Bench" is the headline to an AP story available via the Washington Post. Some quotes:

SALT LAKE CITY -- A small-town judge with three wives was ordered removed from the bench by the Utah Supreme Court on Friday. The court unanimously agreed with the findings of the state's Judicial Conduct Commission, which recommended the removal of Judge Walter Steed for violating the state's bigamy law.

Steed has served for 25 years on the Justice Court in the polygamist community of Hildale in southern Utah, where he ruled on misdemeanor crimes such as drunken driving and domestic violence cases. * * *

Steed, who also works as a truck driver, scheduled a news conference for later Friday to discuss the ruling. He was paid a few hundred dollars monthly for serving in the part-time judicial position. * * * Justice Court judges are appointed to four-year terms by city councils or county commissions. They are not required to have any legal training.

Posted by Marcia Oddi on Friday, February 24, 2006
Posted to Indiana Courts

Ind. Courts - Chief Justice Randall T. Shepard will deliver the Justice William J. Brennan Jr. Lecture

A press release today:

Indiana Chief Justice Randall T. Shepard will deliver the prestigious Justice William J. Brennan Jr. Lecture on Tuesday, February 28, 2006 at New York University School of Law in New York City, the Supreme Court announced today.

His remarks, “The New Role of State Supreme Courts as Engines of Court Reform,” will begin at 6:30 p.m.

The Dwight D. Opperman Institute of Judicial Administration, the Brennan Center for Justice, and the New York University School of Law host the annual lecture, which began in 1995 and has been delivered by some of the leading state court jurists of the nation.

“I think Indiana's representation at this lecture reflects well on the whole state judiciary. It is humbling for me to be part of this wonderful event.” said Chief Justice Shepard.

Justice William Brennan joined the U.S. Supreme Court in 1956 after a distinguished career as a lawyer and New Jersey state judge and state Supreme Court jurist. He served 34 years on the nation's highest court and articulated a vision of the independent responsibility of state courts to protect constitutional rights.

Posted by Marcia Oddi on Friday, February 24, 2006
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending February 24, 2006

Here is the Indiana Supreme Court's transfer list for the week ending February 24, 2006.

There were several transfer grants this week.

Over two years of Transfer Lists: 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, February 24, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending February 24, 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 February 24, 2006. There are 33 Court of Appeals cases listed this week. One Tax Court case is listed.

Posted by Marcia Oddi on Friday, February 24, 2006
Posted to NFP Lists

Ind. Decisions - Court of Appeals issues one today

In Indiana State Board of Education v. Brownsburg Community School Corporation, a 12-page opinion, Judge Vaidik writes:

The Indiana State Board of Education (“ISBE”) appeals the trial court’s denial of its Motion to Correct Errors and Vacate. Specifically, the ISBE contends that because it was unaware that the “preliminary hearing” in the matter would be its one and only chance to argue its case on the merits, the trial court abused its discretion by refusing to vacate its final order. Finding that the ISBE was not afforded the due process guarantees of notice and an opportunity to be heard, we reverse. * * *

What we had here were two (or three) ships passing in the night. The trial court addressed both the stay and the merits of Brownsburg’s Petition. To some extent, Brownsburg may have done the same thing. At the very least, however, it appears that Brownsburg expected there to be additional hearings. For its part, the ISBE clearly believed that the subject of the February 15 hearing was the stay. As we found above, this belief was reasonable. This court has recognized that a party should be given an opportunity to meet the issues that the court is considering. * * * This is not being hyper-technical; this is being fair.

Because the ISBE was not put on notice of the finality of the February 15 hearing, it was not afforded a full and fair opportunity to be heard. As such, the requirements of due process have not been satisfied. Therefore, we reverse the trial court’s denial of the ISBE’s Motion to Correct Errors and Vacate and remand this matter with instructions to the trial court to conduct a judicial review proceeding in which the parties are given an opportunity to submit relevant documents and make substantive arguments on the merits of Brownsburg’s Petition.

Posted by Marcia Oddi on Friday, February 24, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Judge to decide next month whether to dismiss suit against Tribune-Star

The Terre Haute Tribune Star reports today, in a story by Joanne Hammer, on a suit pending against the paper:

A Sullivan judge will decide next month whether or not to dismiss a defamation lawsuit filed against the Tribune-Star.

The lawsuit filed in 2004 by Clay County Sheriff’s Deputy Jeff Maynard alleged the Tribune-Star published stories in March and April that were false, and with malicious intent. * * *

During Thursday’s hearing, attorneys for the Tribune-Star and Maynard argued their case before Judge P.J. Pierson about whether to dismiss the case based on anti-SLAPP legislation.

The Tribune-Star filed the motion to dismiss last year based on the 1988 state law that stands for Strategic Lawsuit Against Public Participation. The newspaper argued that the articles were published in its right of free speech and press in connection with a public issue. * * *

Both sides will have seven days to submit cases to Pierson before he rules on the motion to dismiss. If the complaint is dismissed, the anti-SLAPP law will allow the Tribune-Star to recover reasonable costs and court fees.

Posted by Marcia Oddi on Friday, February 24, 2006
Posted to Ind. Trial Ct. Decisions

Law - Marshall, Illinois adult bookstore must move or change stock

The Terre-Haute Tribune Star reports today, in a story by Joanne Hammer:

An adult bookstore on the outskirts of Marshall, Ill., must change its merchandise or move to another location, a federal judge ruled Wednesday.

The Gift Spot, owned by Illinois One News Inc., near Interstate 70 and Illinois 1 sells adult-oriented books, movies and novelty items and offers booths to view adult videos, according to court documents.

Illinois One News filed a lawsuit against the city in March 2004, stating a zoning ordinance was unconstitutional because it restrained free speech, and that adult-oriented entertainment is protected by the First and Fourteenth amendments.

On Wednesday, Judge J. Phil Gilbert ruled in the U.S. District Court Southern District of Illinois that the city’s ordinance did not violate the Constitution because it did not limit free speech by limiting the place it can occur. * * *

The city’s ordinance, which included restrictions on adult establishments, was passed in November 2002 less than one week after The Gift Spot opened.

Posted by Marcia Oddi on Friday, February 24, 2006
Posted to General Law Related

Ind. Courts - Reports about judges

"Judge being investigated resigns, moves to Canada" is the headline to a brief story today in the Indianapolis Star about "The judge of the Lawrence Township Small Claims Court, the Rev. Terry N. Hursh, [who] has moved to Canada to lead a new church despite a two-year FBI investigation of his court. * * * Republicans will hold a caucus March 4 to select a replacement to finish out Hursh's term."

"Judge's excuse accepted this time" is the headline to a story in the Munster (NW Indiana) Times. Some quotes:

CROWN POINT | Lake Superior Court County Division Judge Jesse M. Villalpando talked his way out of a fine or worse Thursday by saying he broke the law by mistake and that he was sorry.

His enraged political opponent complained the judge would never accept that lame excuse in his courtroom. But the Lake County Board of Elections and Voter Registration voted to pardon the judge for failing to file complete and timely campaign disclosures.

Merrillville lawyer Stanley Jablonski said he was particularly upset with attorneys who sit on and work for the elections board.

"The legal thinking I heard today came out of the fifth grade. Two of your lawyers held the rug up while another used the broom to sweep this under it," Jablonski said.

Posted by Marcia Oddi on Friday, February 24, 2006
Posted to Indiana Courts

Ind. Courts - "Federal courts focus of legal conference"

"Federal courts focus of legal conference" is the headline to a story today by Sara Eaton in the Fort Wayne Journal Gazette:

More than 100 legal types are expected to attend a spring conference today put on by the Allen County Bar Association focusing on federal court and communication between judges and attorneys.

The conference is the third of its kind and will give attorneys and judges an opportunity to complete some of their required continuing education hours, said Maribeth B. Leininger, bar association executive director.

It gives the attorneys and judges who often see each other in court a chance to talk about courtroom procedure and about legal issues generally, she said. * * *

The topics of discussion include punitive damages, civil rights, pro bono work, ethics, criminal law practice and bankruptcy issues.

Posted by Marcia Oddi on Friday, February 24, 2006
Posted to Indiana Courts

Ind. Law - Bill to continue canned deer hunting is dead, but legislative efforts continue

Lesley Stedman Weidenbener writes today in the Louisville Courier Journal:

The House approved an amendment yesterday that would require the state to compensate the owners of fenced hunting preserves that are forced out of business if the state begins enforcing a ban on fenced deer hunting. * * *

The amendment, offered by state Rep. Dale Grubb, D-Covington, was added to Senate Bill 87, which deals with rural economic development issues. It would require the Department of Natural Resources to pay fair market value for any preserves that are forced out of business.

Earlier in the session, the House passed a bill that would have phased out fenced hunting operations over seven years.

But Senate President Pro Tem Robert Garton, R-Columbus, killed that measure after learning that a Harrison County preserve operator sued the state to stop the new policy from taking effect. Garton has a long-standing policy not to consider legislation that would affect the outcome of a court case. * * *

Owners have complained to lawmakers that they've sunk hundreds of thousands of dollars into their operations and now have mortgages and other loans that they can't pay if the state shuts them down.

Under a separate provision approved by the House earlier this week, the state would also close private bird hunting preserves. That proposal is not expected to become law.

If it did, however, the amendment yesterday would require the Department of Natural Resources to compensate those owners, too.

Rep. Bob Bischoff, D-Lawrenceburg, warned that the price of compensating the dozen or so deer-hunting operators, as well as the owners of about 50 bird preserves, "would be devastating for the DNR."

But Rep. David Wolkins, R-Winona Lake, said the department's decision to ban fenced hunting would be equally devastating to the preserve owners.

See also this story in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Friday, February 24, 2006
Posted to Indiana Government | Indiana Law

Ind. Coruts - Ex-aide to Clark County judge target of inquiry

The Louisville Courier Journal reports today, in a story by Alex Davis:

Clark Superior Court Judge Jerry Jacobi called yesterday for a special prosecutor to investigate the activities of his former chief of staff, who resigned earlier this month after seven years of service.

Jacobi, who is running for re-election, said in a letter to Clark County Prosecutor Steve Stewart that his court has been cooperating since Nov. 2 with an investigation by the Indiana State Board of Accounts, the state's auditing agency.

The letter also said that on Feb. 8 Jacobi had asked for and received the resignation of his chief of staff, Jerry Lemmons, after learning "more details about the allegations and the nature of (Lemmons') involvement" in matters relating to the state investigation. * * *

Lemmons, reached yesterday at his home in Jeffersonville, said that he was unaware of Jacobi's letter and that his resignation was for medical reasons and not because of questions about his conduct. He also said he was unaware of the details of the State Board of Accounts investigation.

Posted by Marcia Oddi on Friday, February 24, 2006
Posted to Indiana Courts

Environment - Hoosier National Forest; Lead Paint

National Forest. The Indianapolis Star today has an editorial today headlined "Forest land selloff isn't a smart deal." Some quotes:

Even if Indiana schools and communities were to receive a significant chunk of money, selling off land in the Hoosier National Forest still wouldn't be a good idea.

But they won't. Most of the money from the proposed sale of 868 acres of Hoosier National Forest land will go to schools and counties in the West. Oregon, California and Washington would receive about two-thirds of the money provided for schools, roads and other services in areas with large tracts of national forest holdings. * * *

[S]elling off public land to pay for rural schools is like tearing down the front porch and using the wood to heat the house. It erodes an invaluable national treasure without solving long-term funding problems for rural communities.

For background, see this ILB entry from Feb. 19th.

Lead Paint. An AP story reports on an important jury decision yesterday in Rhode Island:

Three former makers of lead paint are liable for a product that has poisoned Rhode Island children for years, a jury ruled in a verdict that could result in the companies paying millions in clean-up costs.

Wednesday's verdict came after a more-than-three-month trial in which Rhode Island -- the first state to sue the paint industry over lead -- argued that the substance has sickened tens of thousands of children, contaminated homes and burdened landlords.

Former Rhode Island Attorney General Sheldon Whitehouse, who brought the lawsuit in 1999 and is now running for the Senate, pronounced the verdict "an incredibly important turning point in this fight." He said it could pave the way for similar lawsuits in other states.

"I certainly think other attorney generals will be looking at the success of the litigation today," he said.

The state asked the jury to force the former manufacturers of lead pigment or paint to deal with the mess, though it did not seek a specific dollar amount.

Superior Court Judge Michael Silverstein will decide later what the companies must do to clean up the contamination. The judge will also hear arguments Monday on whether the companies should have to pay punitive damages over and above the cleanup costs. * * *

The sale of lead paint was banned in 1978 in the United States after studies showed it can cause brain damage and other serious health problems in children. But in Rhode Island and other states with older houses, many homes still have lead paint. * * *

Dr. Philip Landrigan, an expert in childhood lead poisoning at the Mount Sinai School of Medicine in New York City, testified that a paint chip half the size of his fingernail, if swallowed, could send a child into a coma or convulsions.

The state argued that the companies or their corporate predecessors continued to manufacture lead pigment even after they realized the dangers.

The companies called no witnesses, saying the state failed to prove its case.

Last June, the state dropped DuPont Co. from the lawsuit after it agreed to pay several million dollars to a nonprofit group to remove or cover over lead paint, and for public education and compliance programs in Rhode Island.

Posted by Marcia Oddi on Friday, February 24, 2006
Posted to Environment

Ind Law - Rep. Bauer, if elected House Speaker, would bring back House health care perks

That is the speculation. In a day of amazing stories, this may be the topper. And it is not yet 8:00 a.m.

Matt Tully today, in his Indianapolis Star political column, reports:

The tips had been coming in for several days.

House Democratic leader Pat Bauer, the tipsters said, has told his rank and file he plans to resurrect the notorious lifetime health plan for ex-legislators if he is elected speaker after the November elections.

With all the trouble Republicans are having lately, it's very likely Democrats will take control of the House later this year, and that Bauer will be reinstated as House speaker.

So this was a tip worth checking out.

But would Bauer really revive the health benefit, which covers retired lawmakers, their kids and even ex-spouses? After House Speaker Brian Bosma, R-Indianapolis, won such praise for spiking the program, would Bauer dare to bring it back?

I stepped into Bauer's office this week to ask those questions. I expected him to say something like, "That's a bunch of baloney."

He didn't.

More from the column:
"Bosma, what he's done will probably get a court test," Bauer said, dodging.

Court test? From whom?

"It will have to be someone that served and retires," Bauer said, pointing to House members who, unless they retire in 2006, won't have access to the lifetime health-care subsidy.

Is someone planning to sue?

"I've heard grumblings," Bauer said cryptically. * * *

Bauer pointed to Article 1, Section 23 of the state constitution, which says laws must treat everybody equally. His point was that the Senate has largely kept the health plan in place, while the House has not.

Really! What laws? This was all done by memo of the Speaker and Pro Tem. The law that exists authorizing the program is very general. (And without that law still being on the books, there could be no talk of bringing back the program.)

Tully's column concludes:

Finally, I asked my question another way. Did Bauer, as many in the Statehouse halls say, talk some House Democrats out of retiring by vowing to restore their lifetime health benefits?

"It's much more complicated than that," he said, frustratingly.

No, Pat, it's very simple. All you need to do is say this: "I won't bring the perk back."

I gave him several chances to say that as we talked.

He didn't.

Posted by Marcia Oddi on Friday, February 24, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Law - Garton kills wine bill compromise, says let court decide [Updated: See corection re Marion County judge]

"Bill on direct shipping by state wineries killed" is the headline to a story today by Lesley Stedman Weidenbener of the Louisville Courier Journal. Some quotes:

The leader of the Indiana Senate killed a bill yesterday that would have allowed Hoosier farm wineries to ship their products directly to customers.

Senate President Pro Tem Robert Garton, R-Columbus, acted because he learned that lawsuits about the issue are pending. * * *

As approved Wednesday by a Senate committee, House Bill 1190 would have permitted wineries to ship two cases of wine per month to existing customers and to new customers whose identification they'd checked in person.

But Garton announced yesterday that he'd sent the bill to the Rules Committee, of which he is chairman, where "it won't be processed further."

The Indiana Alcohol and Tobacco Commission stopped all direct shipments from wineries last year, saying that nothing in state law actually permitted them.

Hoosier wineries sued in Marion Circuit Court. A judge has issued a temporary injunction, permitting the shipments to continue until March 1 while lawmakers debate the issue.

But Garton said the legislature doesn't interfere in court cases: "We are not the judicial branch of government." * * *

Senate Minority Leader Richard Young, D-Milltown, said Garton's decision is consistent with a long-standing chamber policy.

"Whenever he's known about situations involving lawsuits, that's what he's done," Young said.

Last week Garton also killed a bill that would have phased out fenced deer hunting after he learned that a suit had been filed to stop the state from shutting a Harrison County operation down in March.

Now really! Senator Garton has just learned about last fall's injunction issued by Judge Dreyer? [Correction: A reader points out that the ruling was issued by Marion Superior Court Judge Thomas Carroll, as attested to by this Nov. 29, 2005 ILB entry].

Niki Kelly of the Fort Wayne Journal Gazette reports in a story headed "Senate leader kills in-state winery bill":

Senate President Pro Tem Robert Garton on Thursday killed a bill – because it could affect pending litigation – that would have allowed Indiana wineries to ship directly to consumers.

“We’re just trying to avoid creating winners and losers,” he said. “We’re not the judicial branch.”

Garton sent House Bill 1190 to the Senate Rules and Legislative Procedures Committee, where he said it will not move forward this session.

He took the action after researching the issue further and realizing there are multiple lawsuits involved.

Garton did the same thing with a bill regarding high-fence deer shooting preserves, which is also being contested in court.

“I wanted to be consistent. I didn’t know any other way to go.”

The decision dooms any movement this session on the wine shipping matter, which bubbled up last year when the Indiana Alcohol Tobacco Commission told wineries to stop shipping to in-state customers.

"Wine-shipping legislation goes sour" is the headline to Michelle McNeal's story in the Indianapolis Star. Some quotes:
A key Senate leader is standing between Hoosiers and doorstep delivery of their favorite wine.

Legislation that would allow wine to be shipped to and from Indiana is stuck in the Senate, probably for good.

Senate President Pro Tempore Robert D. Garton, R-Columbus, refuses to let the bill advance because he doesn't want to get in the middle of a lawsuit involving nine in-state wineries.

Besides affecting Hoosiers' ability to get wine delivered to their homes, blocking the bill could put a dent in state wineries' business if they can't ship their bottles.

This setback, which even Gov. Mitch Daniels' aides are frowning about, comes a day after wineries reached a compromise to let shipments continue in-state and allow wine to be shipped to and from Indiana.

"The governor is interested in achieving a system that gives consumers greater flexibility to purchase wine and allows Indiana-based farm wineries to grow," said Jason Barclay, special counsel to Daniels, who helped broker the compromise and was baffled by the bill's sudden death.

State wineries are fighting in court an Indiana Alcohol and Tobacco Commission order that prohibits wine shipments to Hoosiers. The state order was issued after a U.S. Supreme Court decision required that all wineries abide by the same shipping rules. Because Indiana law bans out-of-state shipments, in-state wineries can't ship, either.

But the Indiana wineries sued and got a Marion County judge to halt that order and let them ship through March 1, until the legislature could decide what to do. Garton is punting the issue back to the courts.

An AP story by Deanna Martin, which appeared last evening on the Star website, contained this interesting passage:
Garton apologized to wineries and lawmakers who worked on the bill throughout the session, including those who attended a four-hour committee meeting about the bill Wednesday. He said he did not realize the bill could not move forward because of pending litigation until Thursday morning. [emphasis added]

He said withdrawing the lawsuits would not help the bill in the final weeks of the short legislative session. "They're out of time," Garton said.

ILB readers may recall this entry from Feb. 14th, titled "Reader asks good question about small wineries bill". A quote:
Just a few minutes ago the ILB posted an entry about Senator Garton's action on the canned deer hunting bill, quoting from a story in the Fort Wayne Journal Gazette by Niki Kelly:
Senate President Pro Tem Robert Garton, R-Columbus, sent the bill to the Senate Rules Committee where he said it will die.

He said the Senate for years has refused to pass legislation that would affect pending litigation, and a lawsuit was filed in August against Hupfer and the DNR after the agency moved to ban the facilities.

A reader has written to ask: "I wonder what this means for small winery shipping . . . ".

Posted by Marcia Oddi on Friday, February 24, 2006
Posted to Indiana Law

Thursday, February 23, 2006

Ind. Law - Wine shipping committee report now available

The Committee Report for HB 1190 has now been filed. Whether or not everything reported in the papers this morning is correct, I can't say right now. And remember, until the Committee Report is adopted and the bill is "reprinted," it has to be read in conjunction with the "latest printing", that dated Jan. 24, 2006.

Posted by Marcia Oddi on Thursday, February 23, 2006
Posted to Indiana Law

Environment - Heavily industrialized areas in Marion and Lake counties pose higher cancer risk

A front-page story in the Indianapolis Star today, by Tammy Webber and Mark Nichols, reports the results of a new EPA study, available this week. Some quotes:

Most Hoosiers live in areas where air pollution elevates their risk of developing cancer, according to a federal analysis released Wednesday.

Overall risks were higher in urban areas, but people at greatest risk live in low-income, heavily industrialized areas in Marion and Lake counties, the U.S. Environmental Protection Agency's National Air Toxics Assessment showed.

The study -- the most ambitious attempt yet to look at cancer risks from breathing chemicals -- outlines lifetime cancer risks in states, counties and census tracts. It is based on 133 chemicals emitted in 1999 by businesses and traffic.

The EPA determines risk by calculating how many additional cancer cases could result if a million people in a particular area were exposed equally to the same level of air pollution 24 hours a day for 70 years. The agency says any lifetime risk greater than 1 in a million could be cause for concern.

The analysis shows that risks in many areas are being driven not so much by big industrial sources as much as smaller factories and commercial businesses, such as dry cleaners and gas stations.

Indiana's average risk was 33 in a million; nationally, the EPA estimates that most people have a cancer risk between 1 and 25 in a million.

Here is the 2/22/06 EPA press release, titled "EPA Releases Second National Assessment of Toxic Air Pollutants." This 2nd assessment is based on 1999 air toxics emissions. Here is the EPA starting point for reviewing this 2006 report.

Posted by Marcia Oddi on Thursday, February 23, 2006
Posted to Environment

Ind. Law - "No retreat" bill advances in a number of midwestern states this year

"House panel backs bill allowing deadly force against intruders" is the headline to this story today in the Louisville Courier Journal. Some quotes:

FRANKFORT, Ky. -- Whether they're breaking into a home or carjacking a vehicle, intruders would be fair game for armed Kentuckians under a bill that passed a legislative committee yesterday.

Rep. J.R. Gray, D-Benton, sponsored House Bill 236 on behalf of the National Rifle Association, saying people shouldn't be expected to avoid a confrontation by running away.

If someone is trying to break into your home in the middle of the night and you've got a fear for your life ... you have a duty under present law to retreat, go to the farthest corner of the room, I guess, and hope the intruder doesn't try to shoot you while you're retreating," Gray said.

Court rulings going back to 1931 have said that people have a right to protect themselves, their families and their property, with deadly force if necessary, Gray said. His bill would put those rulings into state law, he said.

"If you're convinced that that person is about to use deadly force against you, then you have the right to strike back with deadly force," Gray said. * * *

"I think it sends the wrong message to Kentucky," said Rep. Kathy Stein, D-Lexington. "I just think this sounds like we are encouraging people to shoot first and then ask questions later, and I just don't want to go that way."

In Indiana
, the legislature is considering a similar bill that would make it legal for a person to use deadly force against someone breaking into their home or car when occupied.

The NRA is lobbying lawmakers in 13 states to make it easier for people to defend themselves with deadly force. The group, which has about 4 million members nationwide, wants legislation specifying that people have no duty to retreat from an attacker before using deadly force. About half of all states have similar rules on the books.

The Indiana bill is SB 54, which is currently eligible for final passage in the House.

Here is a story on a similar Michigan proposal; here is a column from the Detroit Free-Press titled "Bill could trigger a 'just shoot' attitude."

Posted by Marcia Oddi on Thursday, February 23, 2006
Posted to Indiana Law

Law - Is summary judgment unconstitutional?

See this entry from the Legal Theory Blog, referencing a 37-page working draft of a paper written by Suja A. Thomas, Professor, University of Cincinnati College of Law.

Posted by Marcia Oddi on Thursday, February 23, 2006
Posted to General Law Related

Ind. Law - Wineries bill amended in committee

Four reporters from four major papers have stories today on the revisions to the wine shipping bill, HB 1190.

"Panel would allow shipping of wine: Compromise puts limits on wineries" is the headline to a very comprehensive story today by Lesley Stedman Weidenbener in the Louisville Courier Journal. Some quotes from the lengthy report:

INDIANAPOLIS — Wineries inside and outside Indiana could ship directly to Hoosier customers under compromise legislation approved by a Senate committee yesterday.

But House Bill 1190 would restrict the amount that wineries could ship to an individual and the total they could ship to all Hoosiers in one year.

Some operators said yesterday that the overall limit was too low and should be increased. Also, wineries could ship only to those individuals already on their customer lists or whose identification they first check in person. * * *

The Commerce Committee amended the bill before approving it unanimously and sending it to the full Senate for consideration. It is now a dramatically different bill than when it was approved earlier this month by the House, which voted to essentially ban direct shipments of wine. * * *

The bill approved yesterday would require wineries -- both in Indiana and in other states -- to obtain a direct wine seller's permit for $100 to ship directly to customers. Only wineries that sell less than 500,000 gallons of wine in the state per year would be eligible for the permit.

Permitted wineries could then ship up to two cases per month to an individual customer but could not ship more than 1,000 cases of wine overall per year.

Winery operators testified yesterday that they generally support the bill's concept. But they said the 1,000-case limit is too low and would hurt their sales. Sen. Brent Steele, R-Bedford, said the cap would put some wineries out of business.

Oliver Winery in Bloomington is the state's largest and ships about 2,700 cases of wine to Indiana customers per year, just a fraction of the 180,000 cases it sells. The company sells the bulk of its product through wholesalers in nine states.

Owner Bill Oliver said direct shipment, though, is a key to selling specialty wines, which are more expensive and made in much smaller quantities.

Direct shipment "is not a great threat" to wholesalers, he said.

Ted Huber, a co-owner of the Huber Orchard and Winery, told the committee that the 1,000-case cap would also be a problem for its business, which draws about 400,000 tourists to the Clark County location every year.

The winery ships about 1,700 cases to Hoosier customers annually. Those direct shipments are important, Huber said, because customers "may not be back for two or three years" after their initial visit.

Bill Ruthhart of the Indianapolis Star writes:
In a major momentum swing for state wineries, a Senate committee Thursday gutted a bill that would have outlawed the shipment of wine in Indiana.

Instead, senators not only voted to permit continued wine shipments in state, but also to allow wine to be shipped to and from Indiana.

"I'm just tickled to death about this," said Dr. Charles Thomas, owner of the Chateau Thomas Winery in Plainfield. "These are some major changes to the bill, and it's much better than it was." * * *

In Indiana, it is against the law for out-of-state wineries to ship to Hoosiers. As result, the Indiana Alcohol and Tobacco Commission also eliminated state wineries' ability to ship their product directly to Hoosiers.

Nine state wineries then sued in Marion Circuit Court, receiving an injunction in November that allows them to continue shipping wine in-state until March 1 -- the deadline the court gave the General Assembly to resolve the issue. * * *

If lawmakers don't pass legislation by March 1, the court could either outlaw all wine shipments in the state or permit them on an unlimited basis.

Faced with the latter possibility, state wholesalers supported the bill despite opposing the concept of shipping wine directly to Hoosiers.

However, as the Star points out in a side-bar, this is not the end of the matter:
House Bill 1190 now heads to the full Senate, where it can be amended. If the Senate passes the new version of the bill, it would be sent to a conference committee. In that committee, members of the House and Senate will meet to resolve their differences on the bill.
They could, for instance, decide to go back to the restrictive, House version of the bill.

Deanna Martin of the AP has a story in today's Fort Wayne Journal Gazette. A quote:

Customers ordering wine would first have to visit the winery in person and complete a face-to-face transaction, during which the winery would check the ID of a person and verify their address and other details. The customer could then order up to two cases a month of wine to have shipped to them at home. Customers already on the winery’s shipping list would not have to make another visit to the winery, lawmakers said.
Patrick Guiane of the Munster (NW Indiana) Times writes:
The glass is half full again for Indiana wineries that had feared the legislature was about to put them out of business.

A Senate panel approved a compromise Wednesday that satisfies the influential liquor distribution lobby without ending the wineries' abilities to ship directly to Hoosiers.

"I think there are a couple of issues, but I think it's really close," Sen. Karen Tallian, D-Ogden Dunes, said at the end of the Commerce and Transportation Committee's three-hour hearing. * * *

The liquor distributors *** brought a large flat-screen monitor into the hearing room to display a short video called "Point. Click. Drink. It shouldn't be that easy."

Supporter of Indiana's 32 wineries, including the Orchard Anderson Winery in Valparaiso, called the underage drinking argument a ruse.

"There wasn't a teenager that drank more alcohol than I probably did," said Sen. Brent Steele, R-Bedford. "And I didn't pay $35 a bottle for it." * * *

Before a groundswell of opposition, the General Assembly appeared ready to simply outlaw all wine shipments. The compromise plan would allow Hoosiers to receive shipments from other states, but only after they make an initial purchase in person.

Here is the link to HB 1190. But the committee amendments haven't been posted yet (they would appear under "Senate Committee Reports") and, as the committee report has not yet been adopted, the "latest printing" does not reflect yesterday's changes either.

Note: I, for one, would like to check to see whether the revision would really require that I physically visit the winery in another state, such as California, before I may place my first order!

Posted by Marcia Oddi on Thursday, February 23, 2006
Posted to Indiana Law

Ind. Gov't. - Two editorials take General Assembly to task

Both the Evansville Courier& Press and the Fort Wayne Journal Gazette have editorials that strongly take members of this year's General Assembly to task.

The Courier& Press writes:

Legislation that would have banned public boards in Indiana from holding secret serial meetings may be dead for the second year in a row. Shame on those responsible.

Jennifer Whitson of the Courier & Press Indianapolis bureau reported Wednesday that a House committee chairman said it is a matter of too little time.

"I don't have a problem with the content of the bill, but in a short session, I'm very limited on time," said the chairman of the House Government and Regulatory Reform Committee, Jim Buck, R-Kokomo.

That raises some questions: What is there about this issue that requires so much time? Either you agree that public boards should not meet in secret, so as to avoid public scrutiny, or you agree that they should be allowed to continue that deceitful practice. * * *

Last year the bill passed the Senate 49-0, only to fail to get a committee hearing in the House. This year it passed the Senate 48-2, and now the House committee chairman says he doesn't have time. A pattern is unfolding.

Whitson said there is still a chance that the meetings ban could be included in a late-session compromise. Let's hope so. The House could do much to demonstrate its support for open and accessible government by finding a way to save Senate Bill 89.

The Journal Gazette writes, in an editorial titled "Statehouse Wisdom?":
If Indiana House Speaker Brian Bosma is behaving like an adolescent when it comes to his stubborn defense of Statehouse prayers, it’s at least encouraging to see an Indiana teenager behaving like a mature, responsible and informed citizen.

That would be Ryan Nees, a 16-year-old who has prevailed in his open-records suit against Kokomo Mayor Matt McKillip. A Howard County judge ruled Monday that the mayor must hand over the e-mail address list for the city’s electronic newsletter and that it must cover Nees’ $5,000-plus legal fees. Nees asked for the list because he was concerned that his e-mail address was being used for political purposes. The mayor’s missives included invitations to fundraisers rather than news about City Hall.

Unfortunately, the ruling will be invalidated if Senate Bill 205 prevails. The bill, filed by Republican Jeff Drozda of Westfield, is emergency legislation to shut down public access to e-mail lists compiled by elected officials. The Senate unanimously approved it. In the House Government and Regulatory Reform Committee, Fort Wayne Democrat Win Moses cast the only “no” vote. The bill is up for second reading in the House.

It should be defeated. As Nees’ case points out, hiding information does not protect the public from privacy abuse if an elected official chooses to misuse it. The Kokomo student is wise beyond his years to recognize that fact and to challenge those in authority.

Sadly, the same can’t be said for House Speaker Bosma, whose we-outnumber-you comment to a Jewish delegation represents a stunning display of immaturity.

Bosma was meeting with the Indianapolis Jewish Community Relations Council to discuss various issues when the speaker himself raised the prayer controversy. According to an e-mail written by Rabbi Jon Adland to his congregation, Bosma defended his position by asking, “How many Jews are there in Indiana? About 2 percent? There are at least 80 percent Christians in Indiana.” * * *

Bosma later said he was sorry if his words were offensive. They were – and he should be sorry. More important, he should be reviewing the principles of a constitutional democracy, which rests on a foundation of majority rule and the protection of minority rights. A bright young student named Ryan Nees could probably help him understand.

Posted by Marcia Oddi on Thursday, February 23, 2006
Posted to Indiana Government

Ind. Decisions - More on "Police searches expand in Indiana"

Richard D. Walton of the Indianapolis Star has a story today on Tuesday's Supreme Court ruling in the case of Robert Trimble v. State of Indiana (see ILB entry here). Some quotes:

A dog named Butchie is at the center of an Indiana Supreme Court ruling reaffirming the right of police to enter outdoor private property and seize evidence that is within public view.

The court rejected Robert Trimble's claim that the warrantless 2003 police confiscation of a miniature Doberman pinscher violated Trimble's right against unreasonable search and seizure. The ruling overrides an Indiana Court of Appeals decision that had sided with Trimble.

The rural Jennings County resident agreed to care for an acquaintance's dog during a move. The pet owner's husband, in a visit with Trimble, noticed that the canine was chained to a doghouse on a cold day. Trimble assured the man that the dog slept inside every night.

When Butchie was seen again out in the cold about two weeks later, and appeared to be injured, a complaint was made. Sgt. Jeff Barger of the Jennings County Sheriff's Department parked behind Trimble's house and walked up to the back door. When no one answered, he checked a doghouse in the yard a few feet away.
Barger looked inside and pulled a chain, and Butchie emerged. "The dog was in horrible shape," Barger said Wednesday. "You could see its ribs and backbone through the skin." * * *

Barger called Animal Control, and Trimble was arrested. Convicted of abandonment/neglect of an animal and harboring a nonimmunized dog, he was sentenced to 10 days in jail and ordered to pay restitution to the dog's owner for veterinary bills.

Trimble appealed, arguing that because the doghouse was on his private property and no search warrant had been obtained, the seizure of Butchie was illegal. The appeals court agreed, but the Supreme Court on Tuesday effectively restored Trimble's conviction.

In an opinion written by Justice Theodore Boehm, the court said the Fourth Amendment's prohibition against unreasonable intrusions "does not protect objects, activities or statements that a citizen has exposed to the plain view of outsiders."

While not suggesting that the information available to Barger at the time would have justified entry into Trimble's house, the justices said: "Here, the degree of intrusion is minimal. Barger entered onto Trimble's property only through generally accessible routes."

Posted by Marcia Oddi on Thursday, February 23, 2006
Posted to Ind. Sup.Ct. Decisions

Wednesday, February 22, 2006

Ind. Law - Madison winery owners to lobby against bill

The Madison Courier reports today, in a story by Donovan Estridge:

Owners of three Madison wineries will be in Indianapolis today lobbying against a bill that they say could harm if not kill their businesses.

House Bill 1190 would restrict small wineries such as Madison Vineyards, Thomas Family Winery and Lanthier Winery from directly shipping their product to customers. The House passed the bill 60-36. The Senate Commerce and Transportation Committee will have a hearing on the bill at 1:30 p.m. today.

“If the bill passes, it could kill small wineries,” Indiana Rep. Billy Bright, R- North Vernon, said. “I will protect small wineries.”

No report yet on the committee action.

[Update] Here is a report from WISH-TV mentioning a committee amendment, but it is totally unclear.

Posted by Marcia Oddi on Wednesday, February 22, 2006
Posted to Indiana Law

Ind. Courts - Randolph County Courthouse -- yet again

"Old Wal-Mart sought (again) for courthouse" is the headline to this story today in the Munice Star-Press, by Joy Leiker. Some quotes:

WINCHESTER -- For the second time in four months, the Randolph County commissioners have picked a former Wal-Mart store as the perfect place to hold courthouse offices once the existing 129-year-old building is torn down.

On Tuesday, commissioners voted 2-1 to ask the county council's permission to appraise and pursue the purchase of the 54,962-square-foot store at 970 E. Washington St., which Wal-Mart vacated last spring.

It's the county's second attempt to acquire the building. In October, the county tried to purchase the building directly from Wal-Mart, but lost out to a Kentucky developer. That developer now is willing to sell the building to the county -- for $795,000. On top of the purchase price, the county believes it would cost about $600,000 to make the interior of the store useable for county office space.

The county council will consider the issue at its March 7 meeting. * * * But the mere mention of the Wal-Mart building drew jeers from the crowd Tuesday. Residents snickered when Commissioner Ron Chalfant talked about the building and said, "we need to move forward."

By moving forward, Chalfant meant it was time for the county to take the next step in its courthouse plans. On June 6 the commissioners decided, also by a 2-1 vote, to tear down the building and replace it with a new one.

Posted by Marcia Oddi on Wednesday, February 22, 2006
Posted to Indiana Courts

Ind. Law - Indiana wineries' troubles continue

Several stories today on efforts to "help" or not, Indiana wineries.

"Vintage dispute — Proposal to restrict wine shipments has NWI wineries worried" is the headline to this story in the Gary Post-Tribune. Some quotes:

Local wineries fear a proposed bill in the state’s General Assembly could put a cork in their business.

As H.B. 1190 left the House, it would ban direct shipment of wine to customers, forcing small Indiana wineries to ship their products through wholesalers.

“If this passes, as is, 30 of Indiana’s 31 wineries will go out of business,” argues Dave Lundstrom, who owns the Anderson Winery in Porter County.

Advocates of restricted access to alcohol are supporting the bill, saying it would make it harder for young people to buy alcohol through the mail.

The Munster (NW Indiana) Times also has a story, by Christine Kraly. Some quotes:
Without the proper licenses, shipping wine into or out of the state already is illegal. Additionally, House Bill 1190 would prevent Indiana wineries' ability to ship to customers within the state. It also would demand that winery owners utilize a wholesaler to transport wine to individual retailers.
Similar problems exist in other states this year, as regular readers of the ILB will recall. The Chicago Tribune reports today:
Richard Faltz runs Fox Valley Winery, which produces about 30,000 gallons of wine a year in Oswego. But lately, he has been heading to Springfield once or twice a week on a mission he believes is critical to preserving the future of his 5-year-old business and the fledgling Illinois wine industry. * * *

Vintners contend they need to expand an industry that is growing and showing promise. But the Associated Beer Distributors of Illinois argues that wineries are trying to extend their reach unfairly and perhaps spread the unmonitored consumption of alcohol.

The dispute stems from a U.S. Supreme Court ruling in May that declared laws in Michigan and New York discriminatory. Like Illinois, those states had allowed all in-state wineries and select wineries in certain other states to ship directly to consumers while blocking wineries outside the network from doing so.

To level the playing field and eliminate an unconstitutional advantage, the high court decided that no state shall "... ban, or severely limit, the direct shipment of out-of-state wine while simultaneously authorizing direct shipments by in-state producers."

That ruling led to a nationwide scramble among 20 states to align in-state and out-of-state wine distribution laws. In Illinois, as in other places, the ruling yielded dueling legislative agendas.

Posted by Marcia Oddi on Wednesday, February 22, 2006
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues two today

In Thomas J. Oshinski v. Northern Indiana Commuter Transportation District, an 18-page opinion, Judge Barnes writes:

Thomas Oshinski appeals the trial court’s grant of summary judgment in favor of the Northern Indiana Commuter Transportation District (“NICTD”). We affirm.

Issues. We address the two dispositive issues, which we restate as: I. whether Oshinski waived his objection to NICTD’s amended affirmative defense by failing to object to such amendment; and II. whether the State of Indiana has given “blanket consent” to be sued in Indiana courts under the Federal Employer’s Liability Act (“FELA”), thus making compliance with the Indiana Tort Claims Act (“ITCA”) unnecessary. * * *

There are no genuine issues of material fact in this case. Based on our holdings, we conclude that NICTD was entitled to judgment as a matter of law. The trial court properly granted summary judgment in favor of NICTD. We affirm.

In Allstate Insurance Company v. Kristina Keltner and Nicholas Keltner, Minors by Parents and Guardians Eric and Andrea Keltner, a 10-page opinion, Judge Barnes writes:
Allstate Insurance Company (“Allstate”) appeals the denial of its motion to intervene in a lawsuit brought against its insured, Lindsay Tozer, by Eric and Andrea Keltner. We affirm. * * *

In light of general principles regarding insurer participation in personal injury litigation of this type and in deference to the trial court’s discretion when ruling on intervention motions, Allstate has not convinced us that the trial court abused its discretion in refusing to allow it to intervene in the lawsuit between the Keltners and Tozer.

Posted by Marcia Oddi on Wednesday, February 22, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues four today

In Keaton & Keaton, P.C. v. R. Mark Keaton, et al., a 6-page 5-0, decision, Justice Boehom writes:

Unfair competition includes both the tort of “passing off” and trade name infringement. We hold that “passing off” requires intentional misrepresentation or deception but trade name infringement does not. * * *

Conclusion. Transfer is granted. The trial court’s grant of summary judgment to the Fort Wayne firm on all of the Rushville P.C.’s claims is affirmed.

Shepard, C.J., Sullivan, and Rucker, JJ. concur.
Dickson, J., concurs in result.

In Marsha Ledbetter v. Robert Hunter, M.D., Lawrence Benken, M.D. and Ball Memorial Hospital, a 7-page, 5-0, opinion, Justice Dickson writes:
In this appeal following the trial court's dismissal of the plaintiff's complaint alleging medical negligence, the Court of Appeals concluded that the Indiana Medical Malpractice Act's statute of limitations regarding claims of minors violated the Privileges and Immunities Clause of the Indiana Constitution. Ledbetter v. Hunter, 810 N.E.2d 1095, 1103 (Ind. Ct. App. 2004). We granted transfer, thereby automatically vacating the opinion of the Court of Appeals, and now deny the plaintiff's claim that the challenged statutory provision is unconstitutional. * * *

We conclude that the plaintiff has failed to overcome the presumption of constitutionality that must be accorded the Medical Malpractice Act limitation period for minors. Transfer having previously been granted, we affirm the trial court judgment dismissing this action.

In Auto-Owners Insurance Company v. Jon Harvey, Misty Johnson, as Co-Personal Representative of the Estate of Brandy Nicole Harvey and Toby Michael Gearheart, a 16-page, 5-0 opinion, Justice Dickson writes:
This interlocutory appeal challenges the denial of summary judgment in an insurance policy coverage dispute. Finding that the insured's statements and his plea of guilty to involuntary manslaughter conclusively established his alleged tortious act was committed "knowingly or intentionally," the Court of Appeals held that coverage for the claim was excluded by the policy's definition and requirement of an "occurrence," and it remanded for the entry of summary judgment in favor of the insurer. We granted transfer and now affirm the trial court['s decision to deny the Auto-Owners motion for summary judgment]. * * *

Because Auto-Owners has failed to demonstrate the absence of a genuine issue of material fact regarding Gearheart's intent to harm Brandy, the trial court was correct to deny summary judgment on the Auto-Owners claimed application of the coverage exclusion.

In Allstate Insurance Company v. Ted & Rosella Fields and Jimmie Woodley, a 7-page, 5-0, opinion, Justice Dickson writes:
Allstate Insurance Company initiated this interlocutory appeal when the trial court denied its motion seeking relief under Indiana Trial Rule 60(B) from an order defaulting Allstate on li-ability and set the case for trial on damages only after Allstate refused to comply with court or-ders. This appeal challenges not only the denial of Allstate's motion for relief from default, but also the denial of its motions for partial summary judgment and for an order in limine limiting evidence at the damages trial. Allstate had not obtained or sought trial court certification pursu-ant to Appellate Rule 14(B) to bring an interlocutory appeal on any of the issues. The plain-tiffs/appellees, Ted and Rosella Fields, challenged the jurisdiction of the Court of Appeals in an unsuccessful motion to strike and dismiss and again in their reply brief. The Court of Appeals found that it had jurisdiction under Indiana Trial Rule 60(C) because one issue was the denial of relief from the default, and it also concluded that Indiana Appellate Rule 66(B) provided a basis for it to exercise appellate jurisdiction over the other interlocutory issues, ultimately deciding that one of these other issues, the denial of Allstate's motion for partial summary judgment, was incorrectly decided. Woodley v. Fields, 819 N.E.2d 123, 130, 132-33 (Ind. Ct. App. 2004). We granted transfer, thereby automatically vacating the decision of the Court of Appeals pursuant to Indiana Appellate Rule 58(A), and we now dismiss the appeal, holding that Indiana Trial Rule 60(B) authorizes a motion for relief only from final, not interlocutory, orders, and that no appeal may be taken under Trial Rule 60(C) from the denial of a motion for relief from an interlocutory order granting default judgment on less than all issues. * * *

The conclusion of the Court of Appeals that it had jurisdiction to address Allstate's interlocutory challenges is predicated on its mistaken assumption that Rule 60(C) automatically permits an immediate appeal from the denial of a 60(B) motion for relief from the order of default. Woodley, 819 N.E.2d at 131-32. Thus finding jurisdiction under Rule 60(C), the court proceeded to "invoke our discretion" under Appellate Rule 66(B) and address "all of Allstate's issues raised on appeal." Id. at 130. Since the time the Court of Appeals issued its decision in the present case, however, we decided Daimler Chrysler Corp. v. Yaeger, 838 N.E.2d 449 (Ind. 2005), in which we held "that Appellate Rule 66(B) does not authorize an interlocutory appeal that fails to comply with Appellate Rule 14," id. at 449-50, and dismissed the appeal because Daimler Chrysler had failed to first seek and obtain certification from the trial court authorizing an appeal from the interlocutory order. Id. at 450.

In view of the absence of jurisdiction to decide Allstate's appeal from the denial of its motion for relief from the interlocutory entry of default, we conclude that there is no jurisdiction under Appellate Rule 66(B) to decide any of the other issues raised by Allstate in this appeal. Having previously granted transfer, thereby vacating the decision of the Court of Appeals, this appeal is now dismissed, and the cause remanded to the trial court for further proceedings.

Posted by Marcia Oddi on Wednesday, February 22, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Police searches expand in Indiana"

The Indianapolis Star and the Fort Wayne Journal Gazette both carry an AP story today on yesterday's Supreme Court ruling in the case of Robert Trimble v. State of Indiana (see ILB entry here). According to the story:

Police investigating a credible report may legally enter outdoor private property and seize evidence of a crime if it is within public view, the Indiana Supreme Court ruled.

The ruling Tuesday stemmed from an animal neglect case but could have wider implications.

The state Court of Appeals had overturned Robert Trimble's conviction, accepting his argument that a Jennings County sheriff's deputy should not have taken evidence -- a dog -- from his fenced-in yard without a warrant.

A deputy went to Trimble's rural Jennings County home in February 2003 after receiving a report that an injured dog had been tied outside without food or water. The officer went to Trimble's back door, where most visitors entered, but no one answered, court documents said.

While in the yard, the officer saw a doghouse and found the animal inside. He then called an animal control officer to remove the dog, the documents said.

Trimble argued the search was an unconstitutional violation of his right to privacy and moved to suppress the evidence, but the trial judge rejected the claim. The Indiana Court of Appeals overturned the lower court, but the state Supreme Court disagreed.

Justice Theodore Boehm wrote that the area was not immune from search merely because it was fenced in, because the doghouse was easily visible and the officer went only where any visitor might be expected to go.

Posted by Marcia Oddi on Wednesday, February 22, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Serial meeting bill most likely dead

On Saturday the ILB had an entry titled "Serial meeting bill in danger again." Today, Jennifer Whitson reports in the Evansville Courier& Press:

A bill to stop public bodies from getting around open meeting requirement by holding serial meetings appears to be dead for the session.

Under state open access laws, if a quorum of members from a public body, such as a city council or school board, shows up for a meeting, then the meeting must be public. A quorum means the amount required by the internal rules to vote.

To get around that requirement, some public officials have met one on one with members of a board to discuss a topic and decide how to vote in the open meeting. When the open meeting arrives, the vote is held but the public misses out on the discussion behind the decision.

Senate Bill 89
, carried by Sen. Beverly Gard, R-Greenfield, would have made any series of meetings that includes a quorum of members and is on the same topic a violation of Indiana's open door law.

The Senate passed the bill 48 to 2. In the House, the Speaker assigned it to the House Government and Regulatory Reform Committee. Committee Chairman Rep. Jim Buck, R-Kokomo, said Tuesday that he is not going to schedule the bill for a hearing.

Posted by Marcia Oddi on Wednesday, February 22, 2006
Posted to Indiana Government

Ind. Decisions - Court of Appeals rejects sewer flooding lawsuit

The Evansville Courier& Press reports today, in a story by Bryan Corbin and Bryon Rohrig:

The Indiana Court of Appeals has ruled against a group of Southeast Side homeowners who sued the city of Evansville after their homes were flooded by raw sewage from overflowing sewers.

The appeals court Tuesday upheld the decision last year of a Vanderburgh County judge who ruled that the city was legally immune from the homeowners' lawsuit. In a 16-page decision, the appeals court found that the city's actions before and during times of extreme rainfall did not amount to illegally "taking" the homeowners' property.

Attorney Les Shively, who represented the six sets of homeowners in their lawsuit against the city, said they plan to appeal to the Indiana Supreme Court and might bring a separate case in federal court.

The suit was filed over backups of raw sewage onto residents' properties during extremely heavy rainstorms July 9, 2003, and July 31, 2004. Shively contends his clients can't sell their homes since they would have to disclose the sewage flooding to buyers.

"How can they? Who would buy?" Shively said. "They'd have to practically give those properties away. These folks can't do that."

The decision is Beck v. City of Evansville - see ILB summary here (2nd case).

Posted by Marcia Oddi on Wednesday, February 22, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - Another editorial on paucity of contested primary races

The Fort Wayne Journal Gazette has an editorial today titled "Empty Ballot Slots," that begins:

Voters in northeast Indiana and across the state face woefully few decisions in the May primary, and Hoosiers should be concerned about the lack of competition for elected positions.

Consider the 100 Indiana House seats, all of which are up for election this year. Democrats have failed to field any candidate in 24 districts – nearly a quarter of the entire Indiana House. Republicans didn’t do much better – they have empty slots in 22 House districts. In the majority of districts, each party is fielding just one candidate. Democrats have a choice in just 16 of the 100 House districts; Republicans in only 19.

See also this ILB entry from yesterday.

Posted by Marcia Oddi on Wednesday, February 22, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - More on legislators' life-time health care benefit

The Indianapoltis Star today has two Letters to the Editor on the health care perk. Some quotes:

What a health-care deal for part-time legislators

It is appalling that Indiana's part-time elected officials ever passed a law allowing themselves, their spouses and even divorced spouses to receive lifetime health-care coverage at taxpayers' expense. How many businesses provide insurance for part-time employees, let alone lifetime coverage?

Garton can't count on voters forgetting health-care issue

State Sen. Bob Garton's futile attempt to justify paid health care for state senators, their families and even former spouses, all at the expense of Indiana taxpayers, is a disgraceful example of what happens when lawmakers lose touch with those who elect them.

Thoughts. Re part-time legislators receiving life-time benefits, in an entry this weekend (which you are urged to read in full) the ILB pointed to the example of a House member, age 46, retiring this year after 6 years and one-month of service as a part-time legislator.

Thirty years from now, in 2036, Indiana taxpayers will still be subsidizing the health care of this now 76-year-old and his spouse (or his surviving spouse). The ILB entry calculated that this benefit would cost Indiana taxpayers $300,000 to $400,000 for this single retiree, for his brief, part-time, legislative service.

Posted by Marcia Oddi on Wednesday, February 22, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Decisions - Still more on: High school student prevails in suit against Kokomo mayor in public access issue

Updating yesterday's ILB entry, which pointed out that there is a bill pending in the General Assembly which could wipe out access to email lists such as the one the mayor of Kokomo refused to disclose, the Indianapolis Star today editorializes, in a piece headlined "Don't delete e-mail from records law":

Ryan Nees' court victory is a prime example of why Indiana's open records law is essential. It protects ordinary people, even 16-year-old high school students like Nees, who have questions about how their government operates.

The Kokomo teenager won his legal fight with Mayor Matt McKillip this week, securing the right to review the city's list of e-mail addresses used to distribute an electronic newsletter. Nees asked for a copy of the subscriber list in July after he became concerned that the city was using his e-mail address for political purposes.

McKillip refused the request. And so the courtroom confrontation between the mayor and the teenager began.

The state's public records counselor, Karen Davis, sided with Nees in September, as did Howard County Circuit Court Judge Lynn Murray on Monday.
Yet what the law now gives, the legislature may take away.

Senate Bill 205, which passed the Senate unanimously and is now before the House, would exempt public agencies' lists of e-mail addresses from the open records law. Lawmakers say they want to withhold the information for the public's own good. Someone, they argue, could misuse the lists of e-mail addresses.

But it was precisely that concern -- that government might be misusing the addresses -- that drove Nees' quest for information.

The bill, SB 205, was passed out of 2nd house committee yesterday, without change, and so at this point is well on its way to becoming law.

Posted by Marcia Oddi on Wednesday, February 22, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Government | Indiana Law

Law - Three former athletes want NCAA to remove scholarship limits

Mark Alesia reports in the Sports section of the Indianapolis Star today:

Three former college athletes have filed a class action lawsuit against the NCAA, seeking what could be scholarship increases of about $2,500 annually and damages that could amount to $350 million.

The antitrust complaint, filed Friday in U.S. District Court in Los Angeles, seeks to remove NCAA scholarship limits -- tuition, books, room and board -- and allow schools to pay what is known as the "full cost of attendance." That includes money for laundry, school supplies, telephone and travel.

Any player from the past four years, including current players, in Division I-A football or what the lawsuit calls "major" college men's basketball would be eligible to receive damages. The complaint covers 144 schools, including the four Division I-A football programs in Indiana.

Posted by Marcia Oddi on Wednesday, February 22, 2006
Posted to General Law Related

Tuesday, February 21, 2006

Environment - Two stories about tire processing facilities today

A press release issued by Indiana Attorney General Steve Carter this afternnon reports:

Muncie -- Criminal pleas have been entered in Delaware Circuit Court by the owners of CR3, the former tire processing site where tires burned for several days in 2003. Bill and Michael Gruppe have each entered guilty pleas to violating the state’s environmental laws announced Attorney General Steve Carter today. The pleas have been taken under advisement by Judge Robert Barnet, Jr. Indiana Department of Environmental Management (IDEM) Commissioner Thomas W. Easterly joined Carter for the announcement.

“Environmental crimes can be devastating to a community. The pleas entered today can bring resolution to a case that has had had a physical and lasting effect on Muncie and its residents,” Attorney General Steve Carter said.

A fire broke out at the tire processing plant in August of ’03 and burned for several days. Owners Bill and Michael Gruppe have each entered guilty pleas before the Judge to a criminal charge for failing to report their tire business activity on the Mt. Pleasant Blvd. facility (class B misdemeanor). Additionally, CR3, as a limited liability company, has also entered a guilty plea through its owners to one Class D felony resulting from illegal storage of waste tires off-site.

[In addition] The Attorney General and IDEM are pursuing a civil agreement seeking civil penalties and costs of clean up at the site where mounds of burnt and shredded tires remain smoldering under a cap of dirt.

The agreement could include:

  1. $500,000 to be placed in escrow for remediation and clean up of the site.
  2. $100,000 civil penalty.
  3. Bill and Michael Gruppe could be prohibited from operating or maintaining a tire processing or storage facility in Indiana in the future.
Criminal charges were filed in September 2004 via the Delaware County Prosecutors Office based on the investigative efforts of the Attorney General’s Office, the Prosecutor’s Office and IDEM. Deputy Attorneys General, and former prosecutors, Cindy Crispin and Sierra Cutts were deputized by the Delaware County Prosecutor for the case.
Here is this morning's Fort Wayne Journal Gazette / AP coverage of the story, headlined "Brothers, company plead guilty to charges in 2003 fire."

Here is an update from the Indianapolis Star, including this photo.

In another item today about tire processors, the Fort Wayne Journal Gazette reports:

A tire retreading company wants to more than double the size of its northwest Fort Wayne facility.

Isaac Tire plans to construct a 57,326-square-foot building south of its existing warehouse and office at 3521 Independence Drive, in the Congressional Industrial Park off Hillegas Road. The Fort Wayne Plan Commission heard the proposal at its meeting Monday night.

The company, which retreads worn truck tires so they can be reused, operates from a 54,800-square-foot facility, said Mary McManus of Donovan Engineering, the project engineer. Isaac Tire is growing and needs additional room, she said.

Posted by Marcia Oddi on Tuesday, February 21, 2006
Posted to Environment

Ind. Decisions - Supreme Court decides one today

In Robert Trimble v. State of Indiana, a 7-page opinion, Justice Boehm writes:

We hold that a police officer receiving a credible report of a violation from an identified concerned citizen may properly enter onto private property through the normal route of access to investigate. Once there, publicly viewable evidence of a crime may properly be seized without a warrant, particularly when there is a need to act promptly to protect the health or safety of another, whether human or animal.
The case involved Butchie, a dog tied outside, to a doghouse. Re the 4th Amendment claim, the Court writes:
The Fourth Amendment does not protect objects, activities, or statements that a citizen has exposed to the “plain view” of outsiders because the individual has expressed no intention of keeping those activities private. Trimble argues that Butchie’s doghouse was within the curtilage of his home and therefore not subject to warrantless intrusion. The Court of Appeals agreed, with Judge Sullivan dissenting. * * *

We conclude that there is no legitimate privacy interest in the appearance of a dog that has been tied up outside in an area readily observable by the public. Accordingly, Barger’s ob-servation and inspection of Butchie did not violate the Fourth Amendment to the United States Constitution because they were made from an area that the public could legitimately be expected to traverse. Once Butchie was examined, Barger had ample reason based on both probable cause (apparent animal abuse) and exigent circumstances (Butchie’s health) to seize the dog.

Re the claim under the Indiana Constituion, the Court writes:
Trimble argues that the warrantless search of Butchie’s doghouse and the seizure of Butchie from within was unreasonable and therefore violated Article I, Section 11, of the Indiana Constitution. * * *

Hence, Barger’s degree of concern that a violation had occurred was reasonable.

Finally, the severity of the law enforcement need embraces proper concern for the health and safety of others, including animals. Where a police officer has received a timely tip concern-ing a possibly dangerous situation, the privacy interest is diminished. * * *

We are not suggesting that the information available to Barger would justify entry into Trimble’s house. But it was sufficient to trigger an investigation that was done from essentially public space, and this investigation justified further action. Once in the yard, the object of his search — an ambulatory animal in open space — is fair game; particularly when there are immediate health concerns regarding the dog. We conclude that Barger’s visit to Trimble’s house and his subsequent actions were reasonable under the Indiana Constitution.

Conclusion. Transfer is granted. The judgment of the trial court is affirmed.

Shepard, C.J., and Dickson and Sullivan, JJ. concur.

Rucker, J., concurs in Part I and concurs in result in Part II without separate opinion.

Posted by Marcia Oddi on Tuesday, February 21, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals decides three today

In Andre Elijah Edwards v. State of Indiana, an 11-page opinion, Judge Baker writes:

Appellant-defendant Andre E. Edwards appeals the propriety of the fifteen-year sentence that was imposed following his guilty plea to Neglect of a Dependent, a class B felony. Edwards claims that he should not be foreclosed from challenging his sentence even though he decided to plead guilty. In essence, Edwards maintains that while the written plea agreement he signed indicated a fifteen-year sentencing “cap,” the trial court still had discretion to decide the precise sentence that should be imposed. Edwards further maintains that his sentence must be set aside because the trial court improperly considered the victim’s age as an aggravating circumstance.

We conclude that Edwards is precluded from challenging the appropriateness of the sentence under Indiana Appellate Rule 7(B) because he was sentenced in accordance with the agreed-upon penalty range that was set forth in the plea agreement. However, we also find that Edwards may challenge the propriety of the aggravating circumstances that were found. In considering this challenge, we conclude that the trial court properly considered the victim’s age to be an aggravating factor. We also note that while one of the other aggravators was improper, the remaining two were valid and could be used to enhance Edwards’s sentence. Thus, we affirm the judgment of the trial court.

In Mary Beck, et al v. City of Evansville, et al, a 16-page opinion, Judge Baker writes:
This litigation arose as the result of extraordinary rainfall and flooding that occurred in certain Evansville neighborhoods during the summers of 2003 and 2004. Plaintiffs-appellants Mary Beck, et al. (the homeowners) appeal the trial court’s grant of summary judgment in favor of the appellees-defendants, the City of Evansville, et al. (the City) with regard to their claim against the City for negligence, nuisance, and inverse condemnation, following flood damage to their residences in 2003 and 2004. Specifically, the homeowners argue that the trial court erred in finding that the City was immune from liability on their negligence and nuisance claims and in determining that there had been no taking of their property for purposes of inverse condemnation. Finding that the trial court properly granted the City’s motion for summary judgment based on governmental immunity, and further concluding that the homeowners failed to establish as a matter of law that any taking of their property occurred with respect to their inverse condemnation claim, we affirm the judgment of the trial court.
In Quaker Properties, Inc. v. Dept. of Unsafe Buildings of the City of Greendale, In., a 10-page opinion, Judge Baker writes:
Appellant-plaintiff Quaker Properties, Inc. (Quaker) appeals the trial court’s dismissal of its petition for judicial review against the appellee-defendant Department of Unsafe Buildings of the City of Greendale (the City), as well as the judgment that was awarded to the City for the repairs and modifications it made to Quaker’s building. Concluding that Quaker did not file its petition for judicial review in a timely manner, and further finding that the judgment was appropriately entered for the City, we affirm the judgment of the trial court.

Posted by Marcia Oddi on Tuesday, February 21, 2006
Posted to Ind. App.Ct. Decisions

Law - Obtaining a license to practice law in California is hard

An entertaining column in the LA Times today (at least for those of us who have no foreseeable plans to take the California bar), titled "A High Bar for Lawyers: Today, 5,260 people begin taking the state licensing exam. More than half will fail. And keep failing. Just ask the mayor of Los Angeles." Some quotes:

Former San Francisco Board of Supervisors President Angela Alioto won't even say how many times she failed the California bar examination before she finally was licensed to practice law.

"Consider it to be several," said the antidiscrimination lawyer and daughter of the late San Francisco mayor and famed antitrust lawyer, Joseph Alioto.

"And understand," she quickly added, "that for the last two years in a row I have been nominated as a national trial lawyer of the year."

Add two former governors, an eminent legal scholar and a former state Supreme Court justice to the ranks of those, like Alioto, who learned the hard way that obtaining a license to practice law in California is hard. In fact, it's harder than in almost every other state.

Of the 5,260 people expected to take the state's bar examination beginning today, more than half are likely to fail, rates from previous years indicate. Some law school graduates, like Alioto, flunk the bar multiple times before finally passing and becoming lawyers.

Others give up.

Los Angeles Mayor Antonio Villaraigosa, who graduated from an unaccredited law school, finally called it quits after taking the bar exam four times. His office failed to respond to questions, and Villaraigosa, reached as he entered a downtown restaurant, was at a loss to explain why he had been unable to muster a passing score.

"All I can tell you is that I failed four times," the mayor said.

Failing the bar can be a crushing and humiliating experience, particularly when the applicant has spent months studying or is unaccustomed to failure.

Kathleen Sullivan, former dean of Stanford Law School and a former Harvard Law School professor, is considered such a legal superstar that news of her flunking the California bar last year made the front page of the Wall Street Journal. Sullivan remains a full law professor at Stanford and is associated with a private law firm.

Although Sullivan is licensed to practice law in New York and Massachusetts, the California Supreme Court last month removed her from litigation over a $500-million licensing dispute because she was not a member of the state bar.

The constitutional scholar, who has argued several times before the U.S. Supreme Court, wasn't eager to talk about the setback, declining to say how much she studied for the bar or how close she came to passing. "That is all past," Sullivan said.

She took a special bar exam for lawyers licensed elsewhere that is shorter than the regular test. Only 28% achieved passing scores.

This time, Sullivan is not taking any chances. She said she has immersed herself in study for the test today.

"I am eating, drinking and sleeping the bar," said the scholar, who is frequently cited as a potential U.S. Supreme Court nominee.

Here is a link to a Dec. 5, 2005 ILB entry on the California bar.

Posted by Marcia Oddi on Tuesday, February 21, 2006
Posted to General Law Related

Law - Drives to ban gay adoption heat up

A troubling story today in USA Today is headlined "Drives to ban gay adoption heat up: In 16 states, laws or ballot votes proposed." Some quotes:

Efforts to ban gays and lesbians from adopting children are emerging across the USA as a second front in the culture wars that began during the 2004 elections over same-sex marriage.

Steps to pass laws or secure November ballot initiatives are underway in at least 16 states, adoption, gay rights and conservative groups say. Some — such as Ohio, Georgia and Kentucky — approved constitutional amendments in 2004 banning gay marriage.

“Now that we've defined what marriage is, we need to take that further and say children deserve to be in that relationship,” says Greg Quinlan of Ohio's Pro-Family Network, a conservative Christian group.

Florida has banned all gays and lesbians from adopting since 1977, although they can be foster parents. State court challenges and a campaign by entertainer Rosie O'Donnell to overturn the law have failed. A pending bill would allow judges to grant exceptions.

Mississippi bans adoption by gay couples, but gay singles can adopt. Utah prohibits all unmarried couples from adoption.

For background, see this ILB entry from Feb. 10th ("More on: Morgan County lesbian couple fight to keep child") and this Feb. 14th post by Indianapolis attorney Gary R. Welsh in Advance Indiana ("Gay Parent Adoption Case Poses Challenge To Court Of Appeals").

Posted by Marcia Oddi on Tuesday, February 21, 2006
Posted to General Law Related | Ind. App.Ct. Decisions

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

The Indianapolis Star has an editorial today correctly pointing out that there are few contested primary races again this year for seats in the Indiana General Assembly. A quote:

There are a lot of elements involved in revitalizing the political process at the state and local levels. Drawing competitive political districts should be at the top of the list. As Rep. Jerry Torr, R-Carmel, points out in a My View on the opposite page, districts drawn by the General Assembly are designed to protect incumbents.

This year there are but a handful of meaningful contests for legislative seats in either the House or Senate. There are few strong challengers unless an incumbent voluntarily vacates his or her seat. Thus, few races attract voters, especially in the primaries. And there's a lot at stake, especially for the House, where Republicans hold a slim 52-48 majority.

Rep. Jerry Torr has a featured letter in the Star today headed "Let's bring an end to shameless gerrymandering." Torr was the author of HB 1009, which would create a redistricting commission. Torr's letter begins:
With the end of the month-long filing period for the May 2 primary, only about a third of 25 Indiana state Senate races and less than a third of the 100 Indiana House races have candidates filed from both major political parties. And even among the contested races, only a handful will really be contests. There are a number of reasons for this lack of competition, but clearly one major factor is that our current system allows the majority party in each chamber to draw its own districts to favor one party over another and to protect incumbent legislators.
But as I pointed out in this ILB entry from Jan. 30th, and repeat here, enacting a bill may not be the answer:
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.

Rep. Torr ends his letter today with this paragraph indicating that he may be open to the constitutional amendment route:
The plan is by no means perfect -- the proposal had to be drafted to conform to a provision in the Indiana Constitution that requires the legislature to reapportion its districts, so the commission's plan would have to be approved by a special session of the General Assembly after the commission makes its recommendation. The only way to give a bipartisan commission final say in the redistricting process is to change the state Constitution, which is something we should consider.

Posted by Marcia Oddi on Tuesday, February 21, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - Charter school claims it is exempt from public records law

An editorial today in the Fort Wayne Journal Gazette reports:

Fort Wayne’s only charter school proudly proclaims itself “A Different Kind of Public School.” As a public school, however, it should not be permitted a different interpretation of public records law. Yet Leona Group, the company in Lansing, Mich., that manages the Timothy L. Johnson Academy, refuses to release records other public schools must release, citing its status as a private company.

The school is refusing to release the records for a former principal of the academy. The Journal Gazette requested the records after the principal was fired in November – a routine request when a high-profile school official is terminated following an investigation. It is clearly in the public’s interest to know the circumstances surrounding the demotion and dismissal of a school administrator. State law specifies what information from a government employee’s personnel record is public, including “information relating to the status of any formal charges against the employee; and … the factual basis for a disciplinary action in which final action has been taken and that resulted in the employee being suspended, demoted or discharged.”

In response to a subsequent complaint filed by The Journal Gazette, Indiana Public Access Counselor Karen Davis issued an opinion clearly stating that the information is a public record. “(A)lthough some provisions of the Charter School Act are open to interpretation, I am persuaded that information about a former teacher and school leader at the Academy in the possession of Leona as employer on behalf of the Academy is a public record subject to inspection and copying,” Davis wrote.

Presented with the public access counselor’s decision, the Leona Group again denied the request, citing its employees’ rights to privacy. It has also denied access to employee salary information – salaries of public school teachers financed with taxpayer dollars. Kelly Updike, Leona’s communications director, said Monday that the company is still discussing the issue after The Journal Gazette’s most recent request.

The editorial explains that Ball State is the sponsor of the school and that the "stonewalling extends to Ball State University."
Glenn Augustine, a university spokesman, noted that the public access counselor’s opinion was not binding. He said that if a court with jurisdiction were to uphold the opinion, the university’s legal counsel would review the decision to ensure that the provisions of the charter agreement were upheld in regard to the management company.

But it should not take an expensive legal challenge to spring those public records loose, nor should charter schools, with Ball State’s forbearance, foster speculation about what they’re hiding.

Both Ball State and the Johnson Academy board should insist that Leona Group make its records available for inspection. This is information the public needs. And accountability covers more than test scores.

Here is a copy of the PAC's Dec. 19, 2005 opinion re alleged violation of the access to public records act by the Timothy L. Johnson Academy.

Posted by Marcia Oddi on Tuesday, February 21, 2006
Posted to Indiana Law

Ind. Law - "Garton targets fenced-hunting bill "

"Garton targets fenced-hunting bill: Senate leader wants issue settled in court" is the headline to a story today in the Louisville Courier Journal by Lesley Stedman Weidenbener. Some quotes:

The leader of the Indiana Senate said yesterday that he plans to kill a bill that would phase out fenced deer hunting because a lawsuit over the issue is pending.

Senate President Pro Tem Robert Garton, R-Columbus, who controls the flow of legislation in his chamber, said the Senate has a policy against passing bills that would create winners and losers in court.

"We're not the judiciary branch," he said. "That's where it needs to be resolved."

As amended, the bill would allow existing operations to continue for seven years while banning new ones.

Without a change in state law, the Indiana Department of Natural Resources plans to shut down all fenced deer-hunting operations in the state next month. * * *

Rodney Bruce, owner of the Whitetail Bluff hunting preserve in Harrison County, sued the state, claiming it can't put him out of business -- especially since he invested about $200,000 after getting the blessing of the natural resources department in the late 1990s.

The suit is scheduled to go to trial March 15, Bruce said yesterday, and he has no plans to drop it just because it might prevent the General Assembly from acting on the issue.

"We believe we're going to win this suit," Bruce said. "So rather than pushing something through the legislature, something with a sunset date, we'd rather try to win the court case."

See also this ILB entry from Feb. 14, 2006.

Posted by Marcia Oddi on Tuesday, February 21, 2006
Posted to Environment | Indiana Government | Indiana Law

Ind. Decisions - More on: High school student prevails in suit against Kokomo mayor in public access issue

Yesterday the ILB reported here (including links to the court and PAC opinions) that Ryan Nees has prevailed in his suit against Mayor Matt McKillip.

Today Vic Ryckert of the Indianapolis Star has a comprehensive report. Some quotes:

A Howard County judge on Monday handed a resounding legal victory to a Western High School student locked in an open records fight with Kokomo Mayor Matt McKillip. * * *

Circuit Court Judge Lynn Murray ordered McKillip to honor 16-year-old Ryan's request for a list of the e-mail addresses of 1,400 subscribers to the city's electronic newsletter. The judge also ordered the city to pay Ryan's legal fees of more than $5,000. The mayor said he has not decided whether to appeal.

But state senators already have acted to change the law that would turn the e-mail addresses over to Nees, and the proposal is now under consideration in the House.

Indiana's open records law requires agencies to make most of the documents they create available to the public, with the goal of giving people "full and complete information regarding the affairs of government." The only exemptions are spelled out in detail.

"Had the legislature intended to exempt a list of e-mail addresses, it could and would have done so," Murray said in a 10-page ruling.

Ryan requested a copy of the list in July, after he said he subscribed to the city newsletter and suddenly started getting campaign messages.

"I was concerned that he might be spamming people for campaign purposes," Ryan said. "Citizens give a certain amount of trust when they subscribe to these things. It's important not to corrupt that trust by sending out political messages, and that's what the mayor did." * * *

When the mayor's office turned him down, Ryan filed a complaint against the city with the state public records counselor, who sided with him in a Sept. 9 opinion.

"A public agency must make reasonable efforts to provide a person all disclosable data stored in an electronic data storage system," Karen Davis wrote.

The access counselor has no authority to order public officials to comply with the open records law and the city disagreed with her ruling. The case ended up in court because, under Indiana law, a person seeking documents can ask a court to step in. * * *

The mayor may yet emerge victorious in the Statehouse. Senate Bill 205, a proposal to rewrite the law and protect e-mail addresses, passed the Indiana Senate 48-0 and is being considered by the Indiana House. The measure was sponsored by Sen. Jeff Drozda, R-Westfield, whose district includes part of Kokomo.

"It's bigger than spam," McKillip said, pointing to the threat of computer viruses and inappropriate content on the Internet. "When people sign up to receive the city's newsletter, they do not sign up to receive mail from anyone else."

This is a case where state law has not kept pace with the times, McKillip said, noting his lawyers told him to expect to lose the records case. "That's why we also have the issue being addressed in the state legislature," he said. "The state legislature is well on its way to updating and modernizing its laws."

Posted by Marcia Oddi on Tuesday, February 21, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Government | Indiana Law

Monday, February 20, 2006

Ind. Econ. Dev. - Anderson, front-page, above-the-fold in the NY Times today

But one might wish it were better news. The headline: "Company Town Relies on G.M. Long After Plants Have Closed." The lengthy report begins:

ANDERSON, Ind., Feb. 16 — General Motors once had so many plants here that it had to stagger their schedules so that the streets would not be clogged with traffic when the workday ended. At the city's peak, 35 years ago, one of every three people in Anderson worked for G.M.

Now there is not a single G.M. plant left, and just two parts plants that G.M. once owned still survive. Anderson, about 50 miles northeast of Indianapolis, had 70,000 people in 1970 and now has fewer than 58,000.

But in many ways, Anderson is still just as dependent on G.M. as it once was. Only now, rather than being dependent on General Motors, the corporation, it is dependent on General Motors, the welfare state.

The company's generous medical plans, prescription drug coverage, dental care and pension checks are a lifeline for the 10,000 G.M. retirees and an untold number of surviving spouses and other family members who still live in the Anderson area.

They in turn help to prop up the doctor's offices, hospitals, buffet restaurants and shopping centers that might otherwise vanish along with the G.M. plants around the city that are fast becoming rubble. Anderson's G.M. retirees outnumber its remaining auto manufacturing workers by nearly four to one.

"When we all die off, this city will die," Jesse Lollar, 83, said last week, as he finished an early dinner of lima beans and macaroni and cheese at the MCL Cafeteria in the Mounds Mall.

Posted by Marcia Oddi on Monday, February 20, 2006
Posted to Indiana economic development

Ind. Courts - More judgeship news

QMIC Columbus is reporting:

A Columbus attorney plans to run for judge of Bartholomew Superior Court No. 1. Democratic candidate Eric Hayes began practicing law in 1988 with his father, Bob Hayes - who then served as a state representative. Eric Hayes was the Bartholomew County deputy prosecutor from 1996 to 1998.

Posted by Marcia Oddi on Monday, February 20, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues one today

In State v. Fridy, an 18-page (including a 7-page dissent) 2-1 opinion, Chief Judge Kirsch writes:

Quentin Fridy was charged with possession of marijuana1 as a Class D felony. Fridy filed a motion to suppress the evidence obtained pursuant to a search warrant. The trial court granted the motion, and the State appeals. We reverse and remand. * * *

In this case, by using the motion to suppress as a sanction, the trial court committed error that resulted in prejudice to the State. Had the trial court omitted from probable cause consideration all evidence that arose solely from the informants’ uncorroborated hearsay—an appropriate remedy where the State deliberately fails to comply with a discovery order, Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000)—the trial court could have both sanctioned the State for its noncompliance, and, as explained above, found sufficient corroborating evidence of probable cause to support the search warrant.

Finding that the trial court erred in granting Fridy’s motion to suppress, we reverse and remand for further proceedings consistent with this opinion.

DARDEN, J., concurs.
SULLIVAN, J., dissents with separate opinion [which concludes]:

In summation, while I agree that refusal by the State to divulge the names and addresses of the informants is not a valid basis to exclude the evidence seized pursuant to the search warrant, I also am of the view that the door remains open upon remand to consideration of the Motion to Suppress in the light of evidence adduced in an evidentiary hearing8 and in light of the applicable law with regard to the issuance of search warrants. Such an evidentiary hearing might well include consideration of the reliability of the informants’ information as buttressed by such corroboration provided by the investigating officers at the time of the traffic stop to the extent that such corroboration comports with the Fourth Amendment of the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution. In connection with evidence of corroboration, it may well be that the validity of the traffic stop may be at issue.

Posted by Marcia Oddi on Monday, February 20, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Bills would alter how Kansas justices are picked

The Wichita Eagle is a story today headlined: "Bills would alter how justices are picked: Two proposals call for Senate confirmation of Kansas Supreme Court justices. A third would let the governor fill the bench." Some quotes:

Two major decisions by the Kansas Supreme Court in the past couple of years have turned state politics upside down, and some think the justice system should follow.

Those decisions have some lawmakers wanting to overhaul a system of choosing the state's highest court.

A vote by the House Judiciary Committee is expected as early as today on one of three constitutional amendments aimed at changing -- for the first time in nearly 50 years -- the way Kansas selects its Supreme Court justices.

But opponents, including organizations that represent most of the attorneys in Kansas, say the proposals are simply intended to give lawmakers control over the court, upsetting the checks and balances built into government.

"The only people who are backing this are a group of legislators who are unhappy with a couple of decisions that didn't go their way," said Jack Focht, a veteran Wichita lawyer who is leading the opposition to the amendments. "Now they want to change a system that's worked well and kept politics out of the courts since 1958."

The Kansas Bar Association, the Kansas Association of Trial Lawyers and the Kansas Association of Defense Counsel oppose the change.

Those pushing for the change acknowledge that the impetus was two Kansas Supreme Court decisions: one ruling the state's death penalty law unconstitutional in 2004 and the other forcing the state to spend more on public education in 2005.

"I think we have plenty of people in Kansas who believe the Supreme Court is out of control," said state Sen. Susan Wagle, R-Wichita.

All three of the Kansas efforts propose constitutional amendments. Kansas' current selection process for appellate judges is similar to that of Indiana - a judicial nominating commission, final selection by governor, judicial retention elections.

[Thanks to How Appealing for first spotting the Kansas story.]

Note: My upcoming Res Gestae article (for the March 2006 issue) is titled "Analysis of another effort to alter the Indiana judicial selection and retention process." For more on the article, see this Feb. 15th ILB entry. My Oct. 2005 Res Gestae article was titled "Voting to retain or reject Indiana judges and justices."

Posted by Marcia Oddi on Monday, February 20, 2006
Posted to Indiana Courts

Ind. Courts - More on judgeship races

The Logansport Pharos-Tribune reports:

[A]t least three judicial races and two races for prosecutor loom large. In Cass County, the retirement of Circuit Judge Julian Ridlen opens up the first three-way Republican primary race for a judgeship in 20 years. Former Circuit Judge Robert L. Justice, former Salin Bank President Patrick McNarny and Sheryl Pherson are vying for the seat. It marks the first time Cass County has ever had two county-wide judicial races on the ballot at the same time, but Superior Court II Judge Rick Maughmer has no primary opponent. It also marks the first time a female candidate for judge has been on a Cass ballot in 20 years. Sondra Knutson was the last to run, losing out to two-term judge Douglas Cox.

In Pulaski County, Winamac attorney John Kocher is running for the Circuit Court judge seat held by incumbent Democrat Mike Shurn. Neither faces primary opposition. In the Pulaski Superior Court race, incumbent Republican Pat Blankenship will face Democrat Lisa Traylor-Wolf, his predecessor in November. Neither has a primary opponent. In another race pitting incumbent vs. predecessor, Prosecutor Stacey Mrak will be running against Jeanene Calabrese.

In Carroll County, incumbent Prosecutor Rob Ives will be running against Tricia Thompson who could become the first female prosecutor in that county.

Posted by Marcia Oddi on Monday, February 20, 2006
Posted to Indiana Courts

Ind. Decisions - High school student prevails in suit against Kokomo mayor in public access issue

Ryan Nees has prevailed in his suit against Mayor Matt McKillip. Ryan had been denied access to the mayor's master list of e-mail addresses after receiving what he called a “spam” political e-mail from the mayor.

Access the Feb. 20th opinion in Nees v. McKillip here.

For background, see ILB entries from: 10/18/05; 1/18/06; 1/19/06; and 2/12/06.

In her 10-page opinion, Judge Murray states that "this court comes to the same opinion as the Public Access Counselor." Further:

The Plaintiff Nees filed this action after obtaining a favorable opinion from the Public Access Counselor and the Defendant's subsequent refusal to abide by the Counselor's advisory opinion. IC 5-14-3-9(i) provides that should the plaintiff prevail in this action, the court is mandated to award to the plaintiff reasonable attorney's fees, court costs, and other reasonable expenses of litigation.

Posted by Marcia Oddi on Monday, February 20, 2006
Posted to Ind. Trial Ct. Decisions

Environment - Class-action toxic tort lawsuit filed against Alcoa in Warrick Circuit Court

"Ex-miner sues Alcoa over waste: Blames exposure for health problem" is the headline to a long story today by Mark Wilson and Bryan Corbin in the Evansville Courier& Press. Some quotes:

When Bil Musgrave went to work as an equipment operator at Squaw Creek Mine in 1977, he didn't know he also would be helping bury potentially toxic waste.

Now, Musgrave, 50, has filed a class-action lawsuit against Alcoa, alleging exposure to the aluminum company's waste caused him near-fatal health problems, including a rare form of cancer.

His attorneys want the lawsuit to be considered a class-action, and they plan to sign up prospective plaintiffs at a meeting tonight in Warrick County at the United Mine Workers Local 1189 union hall.

Alcoa Warrick Operations contends the waste was legally disposed of throughout the Squaw Creek site near Boonville, Ind., roughly between 1965 and 1979, when environmental and mining regulations were not as strict as they are today. Alcoa drew coal from the mine to power its large aluminum-smelting operation 15 miles away. An Alcoa subsidiary, Alcoa Fuels Inc., owned the Squaw Creek strip mine and used its pits to dispose of Alcoa's industrial wastes after coal was extracted by Peabody Coal Co. in a joint venture.

Musgrave's suit alleges more than 65 million gallons of toxic waste were buried in the mine. Alcoa declines to commit to a specific amount of waste buried there because conflicting figures have been reported over the years. But Alcoa officials contend the health risk to the miners was minimal, based on what they say have been minimal health problems reported by Alcoa's own employees exposed to the same wastes. * * *

Musgrave's attorney, Terry White, said that group could include "several hundred" people: former Peabody miners, independent truck drivers who hauled the waste from the Alcoa plant to the mine, or surrounding landowners. Any who were sickened as a result of the waste could join the class-action suit, he said. Responding to the allegations, Alcoa spokeswoman Sally Rideout Lambert said the disposal of waste in the strip mine was authorized by the state Board of Health, years before the Indiana Department of Environmental Management was created.

"At that point in time, the disposal was perfectly legal and authorized, and we were doing what was standard practice at the time," Lambert said.

Though it wasn't required to, Alcoa recently has worked with the UMW to offer free health screenings of former mine employees, conducted by the University of Cincinnati's Center for Occupational Health, Lambert said. Lambert anticipates results of that medical study will be completed and released in April.

The lawsuit was filed Jan. 6 in Warrick Circuit Court. The suit alleges negligence by Alcoa in dumping the waste and in not warning employees of the hazard, infliction of emotional distress, nuisance and loss of consortium. Named as defendants are Alcoa and its subsidiary, Alcoa Fuels Inc. Peabody is not being sued.

Alcoa hasn't filed a detailed response in court yet, but it has asked to transfer the case from state to federal court. Once venue is determined, a judge will decide whether to certify it as a class-action case. Class actions allow large numbers of people whose cases involve similar legal and factual questions to join in a suit against a large defendant, such as a corporation - and possibly share in any damages or settlement. At the meeting at 6 p.m. today, White will discuss the case.

Here is an Oct. 16, 2005 ILB entry (2nd item) on the health screenings.

Posted by Marcia Oddi on Monday, February 20, 2006
Posted to Environment

Environment - More on Pines Transfer Station

The Munster (NW Indiana) Times reports today, in a story by Brian Williams:

Start of construction on a waste transfer station about one mile from Indiana Dunes National Lakeshore will depend on this week's decision on a delay request.

A hearing on a request for a stay of the permit issued to Great Lakes Transfer LLC will be heard Thursday in Indianapolis by the state Office of Environmental Adjudication, an administrative law court that reviews decisions of the Indiana Department of Environmental Management.

Already postponed once, the stay hearing could again be pushed back if a request for a one-month continuance is granted to LaPorte County, which is appealing the granting of the station permit. * * *

Stay or no stay, other hearings in the appeal process will continue through the spring and summer, with a projected final hearing set for August. If the stay is not granted, construction and operation of the waste facility would still need to wait until Great Lakes' renewed building and zoning permits, [that?] have expired.

For background, see these ILB entries from Jan. 12, 2006 and Jan. 18, 2006.

Posted by Marcia Oddi on Monday, February 20, 2006
Posted to Environment

Environment - Clean Water Act at issue in U.S. Supreme Court oral arguments

More than half of the nation's streams and wetlands could be removed from the protections of the federal Clean Water Act if two legal challenges started more than a decade ago by two Michigan developers are supported by a majority of the newly remade Supreme Court.
That is the lead to this report by Felicity Barringer in today's NY Times. More:
One case involves a developer who wanted to sell a wetland for a shopping center and in preparation filled it with sand without applying for a permit, in defiance of the authorities. The second was brought by a would-be condominium developer who applied to the Army Corps of Engineers for a permit to fill a wetland and was denied.

Oral arguments in the cases — the first before the newest justice, Samuel A. Alito Jr. — are scheduled for Tuesday morning. They will pit developers and a phalanx of their industrial, agricultural and ideological allies against both the solicitor general and a who's who of environmental lawyers in an argument over the scope of one of the country's fundamental environmental laws.

The central question is where federal authority ends along the network of rivers, streams, canals and ditches. Does it reach all the veins and arterioles of the nation's waters, and all the wetlands that drain into them? Does it end with the waterways that are actually navigable and the wetlands abutting them? Or is it some place in between?

Also at issue are who draws those lines — and how — and who decides what the Clean Water Act means by "navigable waters" and "the waters of the United States."

Tucked into the larger question is the issue of how many of the nation's 100 million or so acres of wetlands have a close enough connection, or nexus, to regulated waters to fit under the same regulatory umbrella. * * *

The legal arguments in the briefs pit two recent Supreme Court precedents against each other. In a 1985 California case, United States v. Riverside Bayview Homes, the court observed that Congress had intended "to regulate at least some waters that would not be deemed 'navigable' under the classical understanding of that term." Referring to the role of wetlands in protecting larger waterways, the court said that activity in wetlands abutting open waterways could be controlled by the corps.

In this case, the government argues that the court should extend the authority of the corps to wetlands abutting tributaries of actually navigable waters. The constitutional lever through which the control is exercised is the Commerce Clause, which provides for federal control both over direct avenues of commerce — like waterways crucial to trade — and over issues that "substantially affect" interstate commerce.

In 2001, in an Illinois case, Solid Waste Agency of Northern Cook County v. United States, the court said the corps overreached its legal and constitutional authority by claiming control over an isolated quarry. The quarry had filled with water and was used by migratory birds, which are protected under federal law. The court ruled that there had to be a "significant nexus" between the regulated wetland or stream and true "navigable waters." If not, regulation of the water body fell to the state.

Most states represented in the amicus briefs, minus Alaska (where most of the country's wetlands are located) and Utah, back the government. A brief for state and regional water pollution officials said states "know they cannot adequately protect these resources acting alone."

And minus Indiana. Here is the list of states supporting the government's position: New York, Michigan, Arizona, Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Vermont, Washington, and Wisconsin, the District of Columbia, the Pennsylvania Department of Environmental Protection, and the International Association Of Fish And Wildlife Agencies.

See this site for all the documents in the Rapanos/Carabell cases.

The Detroit Free Press had a comprehensive article on Friday titled "Case pits your property rights vs. environment." See also this article from this week's Legal Times and this one from the San Franscisco Chronicle.

Posted by Marcia Oddi on Monday, February 20, 2006
Posted to Environment

Sunday, February 19, 2006

Law - More on: Federal agencies try to limit suits in state courts

The LA Times has a major story today titled "Industries Get Quiet Protection From Lawsuits." The subhead: "Federal agencies are using arcane regulations and legal opinions to shield automakers and others from challenges by consumers and states." Some quotes from the lengthy report:

[S]afety regulators tucked into [a] proposed rule something vehicle makers have long desired: protection from future roof-crush lawsuits like the one Parker filed.

The surprise move seeking legal protection for automakers is one in a series of recent steps by federal agencies to shield leading industries from state regulation and civil lawsuits on the grounds that they conflict with federal authority.

Some of these efforts are already facing court challenges. However, through arcane regulatory actions and legal opinions, the Bush administration is providing industries with an unprecedented degree of protection at the expense of an individual's right to sue and a state's right to regulate.

In other moves by the administration:

• The highway safety agency, a branch of the Department of Transportation, is backing auto industry efforts to stop California and other states from regulating tailpipe emissions they link to global warming. The agency said last summer that any such rule would be a backdoor attempt by states to encroach on federal authority to set mileage standards, and should be preempted.

• The Justice Department helped industry groups overturn a pollution-control rule in Southern California that would have required cleaner-running buses, garbage trucks and other fleet vehicles.

• The U.S. Office of the Comptroller of the Currency has repeatedly sided with national banks to fend off enforcement of consumer protection laws passed by California, New York and other states. The agency argued that it had sole authority to regulate national banks, preempting state restrictions.

• The Food and Drug Administration issued a legal opinion last month asserting that FDA-approved labels should give pharmaceutical firms broad immunity from most types of lawsuits. The agency previously had filed briefs seeking dismissal of various cases against drug companies and medical-device manufacturers.

In a letter to President Bush on Thursday, Rep. Jan Schakowsky (D-Ill.) said, "It appears that there may have been an administration-wide directive for agencies … to limit corporate liability through the rule-making process and without the consent of Congress." * * *

"Under the constitution, federal laws take priority over inconsistent state laws," said Scott Milburn, spokesman for the White House Office of Management and Budget. "Decisions about … whether particular rules should preempt state laws are made agency by agency and rule by rule."

Preemption initiatives by regulatory agencies have drawn less public attention than controversial legislative moves supported by the White House. With administration support, Congress has restricted class-action suits and banned certain claims against gun makers and vaccine producers.

By embedding similar protections for businesses in regulatory changes, the administration has advanced Bush's repeated pledge to rein in what he calls junk lawsuits.

On Thursday, for example, when the Consumer Product Safety Commission adopted a rule to curb mattress fires, it recommended for the first time that courts bar suits against manufacturers that comply with the new standard.

Schakowsky called the move "part of an unfortunate and troublesome pattern … to undermine consumer rights."

In addition to trying to bar suits over vehicle roof failures, the highway safety agency in recent months has sought broad legal protection for manufacturers in two other rules on the grounds that lawsuits could undermine its safety goals. One rule related to rear seat belts and the other to visibility requirements for trucks.

No similar exemption clauses have been attached to any other highway safety agency rule changes for 35 years.

Earlier ILB entries on this issue were posted Jan. 19, 2006 and Feb. 16, 2006.

Posted by Marcia Oddi on Sunday, February 19, 2006
Posted to Administrative Law | General Law Related

Law - Federal Appeals Court Upholds Maryland Governor's Ban on Talking to Reporters

"Court Upholds Ban on Talking to Reporters" was the headline to an Adam Liptak story Thursday in the NY Times. Some quotes:

Gov. Robert L. Ehrlich Jr. of Maryland did not violate the First Amendment rights of two Baltimore Sun reporters by prohibiting state employees from talking to them, a unanimous three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled yesterday.

In November 2004, the governor's press office issued a directive instructing every employee of the state's executive branch not to speak to David Nitkin, a political reporter at The Sun, or Michael Olesker, a columnist who has since left the paper.

"Do not return calls or comply with any requests," the directive said. The reason for the ban, it explained, was that the two reporters "are failing to objectively report on any issue dealing with" the governor's administration. * * *

The Sun sued the next month, saying the directive amounted to unconstitutional retaliation against the reporters for exercising their First Amendment rights. A trial judge dismissed the case in February 2005, and yesterday the appeals court affirmed that dismissal.

"It is common knowledge," Judge Paul V. Niemeyer wrote for the panel, "that reporting is highly competitive, and reporters cultivate access — sometimes exclusive access — to sources, including government officials. Public officials routinely select among reporters when granting interviews or providing access to nonpublic information."

Mr. Ehrlich's directive was part of the ordinary "rough and tumble" of political reporting, Judge Niemeyer continued. "Having access to relatively less information than other reporters on account of one's reporting is so commonplace," he said, "that to allow The Sun to proceed on its retaliation claim addressing that condition would plant the seed of a constitutional case in virtually every interchange between public official and press."

If all this sounds familiar, see this ILB entry from almost this same time last year, Feb. 15, 2005, titled "Maryland governor's public records dispute with press recalls that of Hammond's mayor." It began:
Some of you may recall this ILB entry from Dec. 29, 2004 titled "Hammond mayor denies local paper access to police records." The mayor's chief of staff was reported as saying: "[A]ccess to police information is being withheld because there is a strained relationship between the mayor's office and The Times."
The NY Times story says The Sun has decided not to appeal the 4th Circuit decision. Here is the 4th Circuit's Feb. 15, 2006 opinion in The Baltimore Sun v. Ehrlich.

Posted by Marcia Oddi on Sunday, February 19, 2006
Posted to General Law Related

Ind. Gov't. - "Senate's health perk: They still don't get it"

"Senate's health perk: They still don't get it" is the headline to this editorial today in the Lafayette Journal & Courier. Some quotes:

Listening to Indiana senators, Hoosiers might think our part-time lawmakers had come to their senses about a lifetime health insurance perk that rubbed so many taxpayers the wrong way. * * *

But the Senate didn't even get close to rescinding the benefit in favor of a less-handsome plan that more closely matched what most state retirees get, as House Speaker Brian Bosma did earlier this year.

What's more, senators were just clueless enough to suggest that the Senate plan might just be a model that private companies could follow.

Have your boss try on the thought of a retiree health plan that kicks in after six years on the job, offers coverage at today's premiums, lasts for life and even covers ex-spouses.

Just don't blame us if the peals of laughter ring in your ears as you slink back to your cubicle. Blame senators who just don't get it.

Posted by Marcia Oddi on Sunday, February 19, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Decisions - "Can police be liable in chases?"

Kevin Cocoran of the Indianapolis Star has an interesting story today on a trial case the Supreme Court has agreed to hear, bypassing the Court of Appeals. Some quotes:

The Indiana Supreme Court has agreed to hear a landmark case that could allow bystanders injured in high-speed police pursuits to sue for damages.

The justices will decide whether Marion Superior Court Judge David J. Dreyer was correct in August to reject Indianapolis' claim that officers involved in a 50-second chase in 1999 had "law-enforcement immunity" and thus were not liable for a bystander's injuries.

Under state law, government workers acting within the scope of their jobs can't be held liable for losses resulting from those activities. But Dreyer said police negligence opened the door for a suit.

Using a rarely invoked rule, the Supreme Court agreed last week to hear the case directly on an expedited basis, bypassing the Indiana Court of Appeals.
The high court's actions indicate that the justices consider the case -- which could help determine whether police officers are broadly guaranteed such immunity -- one of significant public importance.

The court could uphold, reverse or modify Dreyer's ruling, reshaping the landscape for victims of police chases.

City and police officials hope the court will dismiss the personal-injury lawsuit, which was filed by Richard Garman, 27, a former Indianapolis resident who now lives in Ohio. A driver fleeing police hit Garman's car after a chase that reached 80 mph.

An officer had suspected the fleeing car's plate was stolen, but that turned out to be wrong. Garman's fiancee was killed in the crash, as was a passenger in the fleeing car.

Garman and his Evansville lawyer, Terry A. White, could not be reached for comment.

The case could be combined with or decided at the same time as a Lake County case that raises the same issue. The state Supreme Court accepted that case in May and heard oral arguments in June. * * *

In a 1981 case, Justice Roger DeBruler of the Indiana Supreme Court noted that governors, judges, legislators and other public and private employees are expected to operate motor vehicles with care at all times. So, he asked, why should police be given blanket immunity from liability?

The Indiana Court of Appeals relied on DeBruler's line of reasoning in the Lake County case in January 2005. According to that and the Marion County rulings, a state law requiring drivers of emergency vehicles to show "due regard" for other motorists supersedes law-enforcement immunity.

The case before the state Supreme Court could settle that question.

The Lake County case that the Supreme Court heard oral arguments on in June of 2005 is Jeffrey Patrick, et al v. Richard Miresso.

Here is the Court of Appeals now-vacated opinion and here is the page from which you can listen to the oral argument before the Supreme Court.

The Indianapolis case just accepted by the Supreme Court is Case Number: 49 S 00 - 0602 - CV - 00055, CITY OF INDIANAPOLIS ET.AL. v. GARMAN, RICHARD. Here is the 2/14/06 order of the Chief Justice:








Posted by Marcia Oddi on Sunday, February 19, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on legislative perks

The Sunday Indianapolis Star editorial is headlined "Some negative numbers: They add up to wastefulness." Some quotes:

The Star Editorial Board explains why you should be concerned about some key figures.

$1.1 million: The amount taxpayers contributed to an overly generous pension plan for state legislators in fiscal year 2005.

The problem: The average Hoosier couldn't dream, much less expect, to be offered a 401(k) plan under which each dollar they contribute is matched four-fold by an employer. Yet, state legislators not only have given themselves such an outrageous benefit, but they also keep the size of those pensions a secret.

Why you should care: Public service means responsible stewardship of taxpayer dollars. It's irresponsible for legislators to enrich themselves with an extravagant retirement fund. In addition, with salaries, per-diems, leadership pay and undocumented expense dollars, state senators on average received $47,100 last year as compensation for their part-time jobs.

Corrective reform: Canceling this perk, along with heavily subsidized health care for retired legislators and their families, should become a priority in the General Assembly. * * *

$306,000: The expected cost to taxpayers for funding health care benefits for retired lawmakers, their widows and families by the 2008 fiscal year.

The problem: Even with Senate President Pro Tempore Robert Garton's cynical ploy last week to reduce the cost of this perk, most state senators can still rely on a plan that is far sweeter than those offered to the state's civil servants.

Why you should care:
State government is struggling to hold down Medicaid and other health care costs at the same time senators and their families are enjoying taxpayer-subsidized lifetime health insurance. Consider, too, that legislators on average were paid between 48 and 50 percent more last year than in 2000.

Corrective reform: Garton should do what's in the best interest of taxpayers and drop the plan as House Speaker Brian Bosma has done. Legislators should then abolish it completely next year.

My thoughts re the 4:1 pension plan. $1.1 million divided by 150 legislators comes out to $7,333 that taxpayers are contributing each year to the average part-time lawmaker's pension. As the Star writes today: "Yet, state legislators not only have given themselves such an outrageous benefit, but they also keep the size of those pensions a secret." For background on the PERF secrecy issue, start with this ILB entry from Feb. 10, 2005.

My thoughts re the cost of the legislators' healthcare perk:
The Star gives $306,000 as "the expected cost to taxpayers for funding health care benefits for retired lawmakers, their widows and families by the 2008 fiscal year." This does not give the whole picture.

This ILB entry from Jan. 17, 2006, attempted to estimate the unfunded liability for the 25 currently retired legislators and came up with $250,000 for each retired legislator and his family, or a total future unfunded liability for just those currently retired of $5 million, assuming health care costs stay the same.

As for legislators who may retire this year, this story from the Munster (NW Indiana) Times this weekend caught my eye. Some quotes:

State Rep. John Aguilera, D-East Chicago, will not seek another term, preferring to focus on a possible 2007 challenge of Mayor George Pabey. * * *

Aguilera is the only Northwest Indiana legislator who plans to step down. There had been speculation that others might retire after the House decided to do away with a perk that allows retiring legislators and their spouses to receive state-subsidized health care for life.

Aguilera, 46, retired from Mittal Steel last April. By stepping down from the Legislature this year, he will be able to keep his state health insurance and the 24 percent premium he currently pays will never increase.

"It didn't really play a factor in my decision," Aguilera said, adding that he now will be able to spend more time with his three teenage daughters.

This legislator is retiring at age 46. He was elected in 2000, so has only 6-years of service. How is he eligible for the legislative plan, which requires "more than" six years service? The answer: "He was elected in caucus to fill a vacancy on 10/12/00, and then elected to his first full term the next month."

He is a young man, his life expectancy is 30 to 40 years. Should his wife survive him, she will continue to receive benefits. He has three daughters, who will be covered by the taxpayer-subsidized plan until age 25.

Assume that the portion of this retiring legislator's health-care benefits for himself and his family subsidized by Indiana taxpayers is $10,000/year. Multiply that by 30 to 40 years to see one of the benefits of 6-years of service as a part-time legislator. A lifetime benefit worth $300,000 to $400,000 might well play a part in some people's financial decision making.

A point about the Senate's revised plan. Several descriptions of the Senate's revised health care plan report that retired senators in the future will be required to go on Medicare when they reach 65, rather than forcing Indiana taxpayers to directly carry the full load of their health care.

However, the reports also indicate that the retired senators on Medicare will participate in the state supplemental Medicare plan. I looked into this plan and received this information from the State:

As required by IC 5-10-8-8.3, we have a contract with Anthem to provide Medicare complementary coverage. The rates are extremely high (the per person per month rates are $167 for medical only coverage & $934 for medical & Rx). Participation is low (18 medical subscribers and 12 subscribe to the plan that includes medical and prescription benefits). The State does not contribute to the premium.
In answer to my direct question, I was told that "better alternatives probably exist through AARP, RIPEA, or elsewhere."

Indeed, the retired state employees association's group plan (RIPEA is a non-profit that does not receive state funding) charges its members who are 65 $123.57/month for its Anthem basic medical (Medicare supplemental) policy. Rx is not included. Members age 75 will pay $167.54 this year.

IC 5-10-8-8.3 is one of the changes that was made in 2001 to put the legislative health care perks plan in place. It provides:

Sec. 8.3. (a) As used in this section, "department" refers to the state personnel department.
(b) The department shall establish, or contract for the establishment of, at least two (2) retiree health benefit plans to be available for former employees of:
(1) the state; and
(2) the legislative branch of government;
whose employer elects under section 8(j) of this chapter to permit its former employees to continue to participate in a health insurance program under this chapter after the employees have become eligible for Medicare coverage. At least one (1) of the plans offered to former employees must include coverage for prescription drugs comparable to a Medicare plan that provides prescription drug benefits.
As added by P.L.13-2001, SEC.11.
So, the question is, under the revised Senate plan, who pays the premium for the currently $934 "per person, per month" cost of the Medicare complementary plan -- the Senator or the taxpayer?

Posted by Marcia Oddi on Sunday, February 19, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Environment - "Groups oppose timber sale"

The Louisville Courier Journal has an extended version of an AP story today on a plan for logging in the Hoosier Natinal Forest. Some quotes from the beginning of the story:

BLOOMINGTON, Ind. -- Southern Indiana conservationists said they expect Indiana's environmental groups to band together to oppose a federal plan to sell off nearly 870 acres of the Hoosier National Forest.

The land sale is part of a national plan to sell about 200,000 acres of federal property to fund a rural schools and roads program. Last year, that program funneled some $380 million to rural schools around the nation, said Hoosier National Forest spokesman Franklin Lewis.

But Indiana forest advocate Andy Mahler calls the plan an "outrageous proposal." He said most of the money generated by the land sales would go to logging states, with more than half of it going to Oregon.

"The local schools here in rural Indiana will get virtually nothing out of these sales," he told The Herald-Times. "It will be the real estate brokers making the money."

Mahler, whose Orange County home is on property adjacent to the Hoosier National Forest, said he expects environmental groups to mount a strong protest to the proposed sale.

"I think you will see virtually every organization that works on forest protection issues doing what they can to raise awareness about this," he said.

Lewis said the U.S. Forest Service has historically paid counties a portion of the proceeds from timber sales generated from local land because the federal government does not pay property taxes on the land.

But Congress created the new program as timber cutting declined from about 12 billion board-feet a year in the early 1990s to just 3 billion board-feet last year.

Posted by Marcia Oddi on Sunday, February 19, 2006
Posted to Environment

Ind. Gov't. - More on legislative perks

The Evansville Courier& Press had an editorial titled "Lawmaker Benefits" on Friday that the ILB covered here (2nd item). It began:

The Issue: Indiana Senate tinkers with health insurance for members.
Our View: It's not enough.
Today the paper published some of the readers' comments on the article.

Last Thursday the Wabash Plain Dealer reported, via the AP, on the Senate effort to "scale back" some of its benefits.

Today Lesley Stedman Weidenbener of the Louisville Courier Journal has a column headlined "Legislators have reform on their minds." It begins:

The Indiana Senate voted last week to ban its members from taking out-of-state trips paid for by lobbyists.

The ban is part of a Senate rule, which means that if a lawmaker does it anyway and gets caught, he or she could be publicly reprimanded or censured. That might not seem like much of a punishment, but for someone who must stand for office every four years, it could prove more effective than a fine or some other penalty.

The column concludes:
Will Indiana ever go further than banning out-of-state trips? Probably. But I wouldn't look for it immediately.

The Indiana House just eliminated a lifetime, state-subsidized health-care benefit for its retirees, and the Senate scaled back a similar plan. Now, the Senate has acted to end the lobbyist-sponsored travel.

That's probably all the reforming that will take place in 2006 -- barring some yet unforeseen motivation.

Meanwhile, Matthew Tully of the Indianapolis Star has a column today on "questionable political moves." Among the items listed:
Disastrous news conference: I can't stop thinking about the news conference Senate leaders held Wednesday. They were there to announce changes to their lifetime health-care program. But the changes were minimal, and the senators did nothing more than remind everyone about the overly generous perk. I can't understand why senators -- from both parties -- thought drawing more attention to the issue with a no-news conference was a good idea.
Tully wrote about the Senate plan in this column Friday, headlined "Senators' perks come with lifetime hypocrisy."

Posted by Marcia Oddi on Sunday, February 19, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Gov't. - "BMV blunder is inexcusable" says editorial

The Fort Wayne Journal Gazette editorializes today on the failings of the "improved" BMV. Some quotes:

If you build it, they will come.

If you close it, they will go elsewhere.

Too bad Joel Silverman, commissioner of Indiana’s Bureau of Motor Vehicles, didn’t consider that when he shut down 27 of the state’s license branches. Now that the first of the 2006 license plate renewals are due, the full effect is apparent: A backlog of unprocessed mail and Internet renewals, license branches jammed with unhappy motorists and some forced to drive on expired plates even though they mailed renewal forms before a Jan. 31 deadline.

The BMV’s response: Those drivers have the “option” to visit a license branch and receive a free, temporary tag. How nice – the option to spend hours at the BMV after following the state’s advice and renewing by mail or online. The increase in the number of such renewals because of the closings created the processing backlog. * * *

There’s no excuse for an administration that has crowed about its “businesslike approach” in providing services to fumble so badly. It can’t blame BMV workers, who have been placed in the no-win position of meeting demand that far exceeds the system’s capacity.

Neither is it acceptable to ask for Hoosiers’ patience. This is not a situation created by anything other than inept management. If the branches in small communities had few visitors, why didn’t Silverman close the least used and assign mail renewals to the others?

The BMV commissioner, a former retailing executive, needs to learn that a license branch visit is not a shopping trip. Hoosiers are required by law to have proper paperwork to operate a motor vehicle, and voters are now required by law to have photo identification available only through the BMV. It is inexcusable for the administration to make it harder to comply with state law.

The Journal Gazette also has some first-hand reports, including this one from Gregory M. Lewis, headed "Daniels at fault for BMV woes." A quote:
The phrase “Ditch Mitch,” of course, was on everybody’s mind if not their tongues. If Gov. Mitch Daniels would have walked into the Pine Valley license branch, I’m sure he would have received quite an earful from a crowd that was extremely agitated by this waiting period.
This letter points out:
There were more than 80 people in the waiting room when I entered at 11:15 a.m., including nearly two dozen just waiting to check in. Another half-dozen were in line outside waiting to use the single terminal there. Those waiting included a cross-section of people, including a number of women with small children. The waiting area provides no drinking fountains or other facilities. * * *

All the clerks worked meticulously and courteously. The branch was understaffed, and the workers probably were feeling a good deal of stress. My paperwork took about 15 minutes after my name was called. My clerk was pleasant and courteous, and as we chatted, she explained the vacant work stations by telling me that the BMV has a hiring freeze. The demand for greater economies has apparently overridden the expectation of providing service to taxpayers.

Gov. Mitch Daniels and BMV Commissioner Joel Silverman should drop by a local branch soon, preferably before any additional branches are closed. They might consider getting in line and waiting their turn with the rest of us.

Posted by Marcia Oddi on Sunday, February 19, 2006
Posted to Indiana Government

Saturday, February 18, 2006

Law - 7th Circuit Judges Frank Easterbrook and Diane Wood on Amercia & the Courts tonight

The C-SPAN blurb reads:

U.S. Court of Appeals Seventh Circuit Judges Frank Easterbrook and Diane Wood speak about how much deference is appropriate when reviewing cases involving government agencies.
The two judges appeared, along with a moderator, Barry Sullivan of Jenner & Block, at the ABA Mid-Year meeting yesterday (Friday) in Chicago. It was well-worth watching and filled a little more than the second half-hour of the show. You can access the program online.

Even better, however, the entire 1:30 hour panel discussion with the two judges can be accessed here via the C-SPAN American and the Courts site. (Judge Cudahy was to be on panel but had surgery earlier this week.)

[An interesting (to me) technological side-note was Mr. Sullivan's mentioning that he reads the FindLaw 7th Circuit opinions every day and that it was much more convenient that the weekly slip-opinions he used to read. I was intrigued that, with all the resources available at Jenner & Block, Mr. Sullivan relies on FindLaw.]

Posted by Marcia Oddi on Saturday, February 18, 2006
Posted to General Law Related

Ind. Gov't. - "State senators to keep controversial healthcare benefit"

"State senators to keep controversial healthcare benefit" is the headline to a story today in the Madison Courier.

A Jan. 10th ILB entry began with this quote from the Madison Courier:

State Rep. Billy Bright is publicly questioning a 2001 law that gives many legislators nearly free health insurance for the rest of their lives.
Today the Madison Courier reports, in a story by Donovan Estridge:
A controversial healthcare benefit for Indiana state senators was upheld this week when the leader of the Senate decided to keep the taxpayer-subsidized plan.

The healthcare plan was turned down last month in the House of Representatives. Speaker of the House Brian Bosma, R-Indianapolis, chose to cancel the subsidized program for lawmakers. Many lawmakers had hoped the Senate would follow suit.

“What do you plan to do with healthcare benefits?” Rep. Billy Bright R-North Vernon asked Sen. Jim Lewis, D-Charlestown, during a recent Third House Session in Madison.

Lewis declined to comment at the session. * * *

“We (legislators) are the only demographic who doesn’t have to go on Medicare,” Bright said.

Opponents of the plan are blasting senators for keeping the plan. Some senators disagree with the plan as well.

“My personal opinion is that we should not be supplemented,” Lewis said.

Though Lewis disagrees with the plan, he said he doesn’t know if he will use it when he retires. He might not be alone in his indecision.

“Several members of the Senate won’t lock into this plan,” Lewis said. “Some senators will receive better plans from their old schools or companies.”

He cited those lawmakers who were former teachers or worked for companies such as General Motors.

Lewis said the decision to keep or eliminate the subsidized healthcare benefits falls on the leadership of each house.

Bosma last month chose to cancel the program for the House of Representatives. Senate Pro-tem Robert Garton R-Columbus, chose to keep the plan for the Senate.

Garton did not return phone calls to The Madison Courier, but instead had Sen. Luke Kenley R-Noblesville speak for the plan.

Kenley said the old plan was flawed but praises the revised version.

“The old plan was clearly too generous,” Kenley said. “This plan is more middle of the road.”

Posted by Marcia Oddi on Saturday, February 18, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Decisions - Court reinforces right to resist excessive force

An AP story today by Charles Wilson, published here in the Lafayette Journal & Courier, and briefly here in the Indianapolis Star, reports on the Court of Appeals decision yesterday in Shane Allen Wilson v. State of Indiana (see ILB entry here). Some quotes from the story:

A judge erred when he didn't tell jurors that a man convicted of fleeing arrest had the right to resist police if they used excessive force, the Indiana Court of Appeals ruled Friday.

The unanimous decision reversed Shane Allen Wilson's conviction in Tippecanoe Superior Court.

Judge Les A. Meade erred when he decided that a common law rule allowing a person to resist arrest to avoid injury was outdated and no longer applied, the three-judge panel ruled.

Wilson's attorney had asked Meade to include a reference to the doctrine in the jury instructions, but he declined.

"There has been no abrogation of the common law rule allowing an arrestee to resist arrest to avoid personal injury or death when the arresting officers engage in excessive force," Appeals Court Senior Judge Betty Barteau wrote in the 10-page opinion.

"Furthermore, the rule should be interpreted to encompass a situation where an arrestee determines to retreat rather than escalate the violence."

According to court documents, Wilson fled on Sept. 6, 2003, when Clinton County Sheriff's Deputy Matthew Myers and Mulberry Town Marshal Glenn Wilson tried to shoot out the tires of his pickup truck after stopping him about 10 miles southeast of Lafayette for violating probation.

One of the shots went through the rear window and out the windshield, causing Shane Wilson to suffer a head injury. He later surrendered without incident.

He said afterward that he fled after the officers fired because he feared for his life.

Posted by Marcia Oddi on Saturday, February 18, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Serial meeting bill in danger again

As last reported in this Feb. 2nd ILB entry, Senator Bev Gard's bill last year to ban serial meetings received much editorial praise. But it failed.

This year's effort, SB 89, has passed the Senate, 48-2, but has not yet been heard in House committee. (Last year's effort, SB 310, passed the Senate 49-0, and died in the House Local Government Committee.)

The Indiana Coalition for Open Gvernment has sent out this "Indiana Legislative Alert":

Indiana Legislative Alert
Re: SB 89 (serial meeting abuses by government boards)
From: Indiana Coalition for Open Government

Contact Indiana Rep. Jim Buck Today to Stop Serial Meeting Abuses

A major reform bill on public meetings is headed to the dead file in the Indiana Legislature unless YOU act this week.

Rep. Jim Buck, R-Kokomo, is refusing to hear Senate Bill 89 in his committee (as of this writing). The bill, which passed the Senate 48-2, is now languishing under pressure from the Indiana Association of Cities and Towns.

On Friday, the IACT sent out its weekly legislative summary (14 pages with SB 89 featured second on its hit list) and declared that SB 89 “would impose unreasonable restrictions on meetings of municipal councils.” In reality, the bill prohibits governing bodies of public agencies from conducting business through the use of series of meetings, which cleverly closes the door to public debate, as it never allows a quorum to be present.

Dubbed the coffee shop clause in newsrooms around the state, the tactic clearly tramples the intent of the law “that the official action of public agencies be conducted and taken openly … in order that people may be fully informed.”

This abuse by public officials was highlighted several years ago when the IU Board of Trustees relied on serial and secret meetings to fire former Coach Bob Knight. Lawsuits followed at taxpayer expense, but the law remains muddy on this point.

Sen. Bev Gard, R-Greenfield, is in her second year of trying to thwart these types of abuses by government officials.

What can YOU do? Contact Jim Buck as soon as possible and tell him why Gard’s bill is needed. If you don’t want your local elected officials meeting secretly to conduct the public’s business in private over coffee, then contact Buck today.

Rep. Buck’s Statehouse contacts are:
317-232-9775 (office/legislative assistant)
House of Representatives toll-free number 800-382-9841

The last opportunity for a committee meeting on this bill is 8:30 a.m. Thursday in the House Government and Regulatory Reform Committee, chaired by Buck. If he fails to call the bill for a vote, it is likely dead (again) for this session.

Also, please copy Sen. Gard on any e-mails you send to Rep. Buck to show continuing support of her efforts. (S28@in.gov)

Posted by Marcia Oddi on Saturday, February 18, 2006
Posted to Indiana Government

Ind. Courts - More news on judgeships

The Elkhart Truth reports:

Attorney Steve Bowers filed his bid Friday for judge of Elkhart Superior Court 2.

A second-term Elkhart City Council member, Bowers filed paperwork with the Indiana Secretary of State's office to run in the May 2 Republican primary against incumbent Judge Stephen Platt.

Bowers, 52, has practiced law in Elkhart since he graduated from Indiana University Law School, Bloomington, in 1977. He has a general law practice in Elkhart. Bowers ran unsuccessfully for judge of Elkhart County Superior Court 6 against David Bonfiglio several years ago.

The Indianapolis Star reports today on a Hamilton County race:
A new Hamilton County Superior Court judge seat is drawing a crowd of candidates, including three Republicans ready to square off in May to determine who'll represent their party in the general election.

The Superior Court 6 judgeship is a new position, created last year by the Indiana General Assembly, for a court that will become active in the county in January.

Republican candidates vying for that seat are Gail Bardach, William P. Greenaway and Larry Sells. Democrat N. Frederick Eggeson also has declared his intent to run.

Posted by Marcia Oddi on Saturday, February 18, 2006
Posted to Indiana Courts

Law - Dad sues to prevent son's circumcision

The Chicago Tribune reports today that:

A Cook County judge Friday ordered a mother not to circumcise her 8-year-old son until the court can hear arguments from the child's father, who opposes the operation, and decide whether it is in the boy's best interests.

The mother, a 31-year-old homemaker from Northbrook, says two doctors have recommended the procedure to prevent recurrent infections. Her ex-husband, a 49-year-old building manager who lives in Arlington Heights, calls the operation an "unnecessary amputation" that could cause his son physical and emotional harm.
* * *

Circumcision, in which the foreskin of the penis is surgically removed, usually before a newborn leaves the hospital, was extremely common in the U.S. during the last century. But the percentage of U.S. babies being circumcised has gone down from an estimated 90 percent in 1970 to some 60 percent today.

The American Academy of Pediatrics no longer recommends routine neonatal circumcision but says the decision should be left up to the parents.

In recent years, the procedure has come under fire from a small but vocal group who believe it is the equivalent of female genital mutilation. They argue, in an increasing number of legal challenges, that the procedure is medically unnecessary and morally indefensible.

There are no published U.S. opinions to serve as precedents for the current case.

Posted by Marcia Oddi on Saturday, February 18, 2006
Posted to General Law Related

Friday, February 17, 2006

Ind. Courts - Sells announces candidacy for judge

The Noblesville Ledger reports today:

Larry Sells, a recently retired Marion County deputy prosecutor, has announced his candidacy in the May 2 Republican primary election for judge in Hamilton County's newly created Superior Court 6.

Posted by Marcia Oddi on Friday, February 17, 2006
Posted to Indiana Courts

Ind. Gov't. - Upcoming Indianapolis Star editorials

Well, the Indianapolis Star was somewhat slow out of the gate this year on these issues, but it looks to be catching up quickly. Here are the announcements for two upcoming editorials:

THE SUNDAY EDITORIAL: Numbers that speak louder than words about government reform. Know how much taxpayers contributed to the lavish legislators' pension plan last year? Or by how much legislator's compensation increased between 2000 and 2005? Read the Star Editorial Board's analysis of some troubling numbers and recommendations for government reform.

AND ON MONDAY: It's nice that Senate President Pro Tempore Garton is banning privately-funded trips. But what about the dinners? Or the overly-generous pensions? Or even that lavish healthcare perk?

Posted by Marcia Oddi on Friday, February 17, 2006
Posted to Indiana Government | Legislative Benefits

Ind. Courts - Nowak enters Bartholomew Superior Court I race

QMIX out of Columbus is reporting:

Incumbent Judge Chris Monroe will have a challenger in the Republican primary for Bartholomew Superior Court 1. Republican David Nowak has entered the race. Nowak served as a public defender from 1995 to 2003 and continues to run a private practice here in Columbus.

Posted by Marcia Oddi on Friday, February 17, 2006
Posted to Indiana Courts

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending February 17, 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 February 17, 2006. There are 52 Court of Appeals cases listed this week. One Tax Court case is listed.

Posted by Marcia Oddi on Friday, February 17, 2006
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending February 17, 2006

Here is the Indiana Supreme Court's transfer list for the week ending February 17, 2006.

There was one transfer grant this week.

Over two years of Transfer Lists: 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, February 17, 2006
Posted to Indiana Transfer Lists

Ind. Gov't. - Columbus Republic poll on Senate health care perks

A trusted reader has sent me these poll results From the Columbus Republic, hometown paper of state senate leader Bob Garton

Interactive Poll: Poll Result

State Senate President Pro Tem Robert Garton, R-Columbus, said he is considering changes to an insurance plan that provides lifetime health insurance benefits to state senators who have served more than six years. What is your position?

3% - Leave it like it is

3% - They have earned it

92% - Cancel it. Why should they receive special treatment

2% - Undecided

Note: Today's poll is "Who should be the new Indiana University head basketball coach?" Rick Majeres is not listed as an option, although Dan Dakick is.

More. Here is the link for the Senate health care poll.

Posted by Marcia Oddi on Friday, February 17, 2006
Posted to Indiana Government | Legislative Benefits

Ind. Decisions - Court of Appeals decides two today

In Shane Allen Wilson v. State of Indiana, a 10-page opinion, Senior Judge Bartaueu writes:

Defendant-Appellant Shane Allen Wilson appeals his conviction of resisting law enforcement by fleeing, a Class D felony. Ind. Code § 35-44-3-3. We reverse and remand. * * *

In his closing argument, the deputy prosecutor reminded the jury members that they had “taken an oath to follow the instructions by the judge” and that they should notice that the instructions given to them did not state “that if the officer is shooting your tire, that gives you the license to take off. There is not going to be anything that even resembles that in the instructions.” This argument emphasized the trial court’s erroneous decision to not give the proposed instruction. Had the instruction been given, the jury would have been properly informed of a defendant’s right to protect himself against great bodily harm or death and could have made a well-informed decision as to whether the right was available to Shane. The trial court’s failure to give the instruction was not harmless error.

CONCLUSION. The trial court erred in refusing to give the proposed instruction. We reverse and remand with instructions that the trial court vacate Shane’s conviction.

Virginia Carol Sims, et al v. The Town of New Chicago, an opinion by Judge Darden, involves Realty Trust's claim that it had:
“for well over 20 years . . . enjoyed continuous and uninterrupted use” of the paved twenty feet that lay between its building and Lincoln Avenue for the purpose of parking, which was “open, notorious and hostile to the interests of” New Chicago, whereby it had established a “Prescriptive Parking Easement” on that paved twenty-foot strip. (App. 27). Realty Trust further asserted that New Chicago was “currently encroaching” on its prescriptive easement, and asked that the trial court “quiet title with regard to” Realty Trust’s “Prescriptive Parking Easement,” authorize Realty Trust to “remove the barricades recently erected,” and enjoin New Chicago “from any further interfering with [Realty Trust]’s Prescriptive Parking Easement.” * * *

On May 27, 2005, the trial court issued its order finding “no genuine issue of material fact in regard to prescriptive easements” and citing our Supreme Court’s statement in Verrill v. School City of Hobart, 222 Ind. 214, 52 N.E.2d 619 (1944), declaring that in the “absence of a statute” so providing, “an easement cannot be acquired by prescription against the government.” (App. 11). Noting that Realty Trust had provided no authority controverting the proposition of law established by Verrill, the trial court granted New Chicago’s motion for summary judgment and ordered “judgment against” New Realty on its complaint. (App. 11, 12). * * *

Since at least 1921, Indiana courts have held that a prescriptive easement cannot be acquired in land owned by a governmental entity. No legislative action has been taken to change this common law rule. “Absent express declaration or unmistakable implication, statutes will not be interpreted as changing the common law.” Drake v. Mitchell Community Schools, 649 N.E.2d 1027, 1029-30 (Ind. 1995). Realty Trust has failed to prove that the trial court erred, and the presumption of the validity of the summary judgment remains. Affirmed.

Posted by Marcia Oddi on Friday, February 17, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Former Steuben County Prosecutor Don Shively has will run for Steuben County Circuit Court Judge

Angola's WLKI reports this morning:

Former Steuben County Prosecutor Don Shively has announced he will run for Steuben County Circuit Court Judge in the May Republican Primary.

The bench is currently occupied by Allen Wheat who has been the Circuit Court Judge since 1995.

Shively has practiced law for nearly 25 years in northeast Indiana. He is currently the Chief Deputy Prosecuting Attorney in DeKalb County. Shively served as Steuben County Prosecutor from 1987 through 1990. He has also been a Chief Deputy Prosecutor in LaGrange and DeKalb Counties and a deputy prosecutor in Steuben and DeKalb Counties.

The filing deadline for the May Primary election is noon today.

Posted by Marcia Oddi on Friday, February 17, 2006
Posted to Indiana Courts

Ind. Law - Allen County Council examines attorney fees

Updating this ILB entry from Sunday, Feb. 12th, titled "Allen County examines legal fees," the Fort Wayne Journal Gazette reports today:

The Allen County Council on Thursday began its investigation into county legal fees by uncovering at least one area for improvement.

In looking at why the county spends more than $800,000 a year on attorneys, council members learned that some elected officials don’t see the bills for attorney work done for them.

Auditor Lisa Blosser said she does not review the bills sent from her attorney. They are instead approved by the commissioners’ office.

While the commissioners’ office checks to make sure the hours billed match the price, Councilman Cal Miller, R-4th, said they can’t check the veracity of the hours billed. He said only the office that works with the attorney can know whether the work was actually done.

Miller said, as an attorney, his office’s bills are frequently questioned and the county’s bills should be no different. He said only after every hour of every bill is scrutinized can the council determine whether the amounts it pays attorneys are excessive.

Posted by Marcia Oddi on Friday, February 17, 2006
Posted to Indiana Law

Ind. Decisions - Challenge to lottery law rejected

Kevin Corcoran reports today in the Indianapolis Star:

A former lottery security official was dealt a blow Thursday in his effort to have a judge dismiss a felony charge alleging he disclosed lottery secrets in an effort to rig a million-dollar scratch-off game.

Marion Superior Court Judge Grant W. Hawkins rejected William C. Foreman's constitutional challenge of the lottery secrecy law, setting the stage for an appeal that could delay Foreman's trial indefinitely.

His Indianapolis attorney, one-time Hoosier Lottery Director Jack Crawford, said Foreman would appeal the ruling as far as the Indiana Supreme Court if necessary.

Foreman is raising a constitutional challenge to the nation's harshest penalty for breaching lottery security.Thirty-nine states have lotteries, but only Indiana has a penalty of up to 50 years in prison for defrauding, stealing from or trying to steal from a lottery. Most other financial crimes in Indiana carry eight-year maximum sentences.

Hawkins ruled that Foreman had failed to prove the 50-year maximum sentence is so disproportionate to sentences for other financial crimes that it constitutes cruel and unusual punishment.

Posted by Marcia Oddi on Friday, February 17, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Senators' perks come with lifetime hypocrisy"

Indianapolis Star political columnist Matthew Tully writes today, in a column headed "Senators' perks come with lifetime hypocrisy," that:

A group of Indiana Senate leaders from both parties stood together Wednesday -- proud and united in their out-of-touch, inept selfishness.

Republicans and Democrats. Side by side. How touching.

This was one of those rare issues that was too vital to let partisanship get in the way. After all, for senators, the issue was one of their own perks.

Somehow, some way, our part-time senators were going to make sure they struck a deal to keep their health care for life.

They did. Then they announced the deal at a nauseating news conference Wednesday.

How bad was it? In my 14 years in journalism, I've covered hundreds of news conferences. But I've never seen one that was more ridiculous, more downright offensive than this.

Senators double-talked about health care for "poor people" but admitted they were taking care of only themselves this year. They acted like they were scaling back their perks, when really they didn't even come close to that.

The focus of the news conference was the lifetime health-care benefit. This ensures subsidized health care for retired lawmakers -- you know, after they become lobbyists -- and covers everyone from their kids to their ex-spouses.

Under the plan, the benefit is available to anyone who served in the part-time legislature for as little as six years and one day.

In the real world, we have an expression for that type of program -- unheard of.

House Speaker Brian Bosma, R-Indianapolis, spiked the plan for House members last month after spending months talking with Senate President Pro Tem Robert Garton, R-Columbus, trying to persuade the longtime Senate boss to join him.

Unlike Bosma, Garton helped craft the perk years ago.

He wouldn't budge.

He looks out for lawmakers. And himself. * * *

Sen. Vi Simpson, D-Ellettsville, was among those on hand. She said senators had learned more about mundane health-care policy than they "ever wanted to." Plus, they had worked in a bipartisan way.

She and the others didn't seem to see the real picture -- a bunch of senators working overtime for their own benefits.

And while this bad plan is Garton's fault, no senators are innocent. Not one has publicly condemned the plan.

But a lot of voters have.

The Evansville Courier& Press has an editorial today about the totally out-of-touch Indiana Senate that begins:
The issue of Indiana senators receiving taxpayer-subsidized health insurance once they leave office centers on a basic point of disagreement between Senate leadership and much of the rest of Indiana.

Obviously, the Senate leadership sees the senators as career public servants who are entitled to taxpayer-subsidized retirement benefits. Others, this newspaper included, see the senators as part-time citizen legislators who temporarily leave jobs back home to do the state's legislative business for a few months each year. They are well-compensated for their part-time service, but they should not be extended lifetime health benefits - benefits not available to many Hoosiers taxpayers.

Yesterday's Gary Post-Tribune had a story by Steve Walsh (no longer available online) with this quote:
In justifying their decision to stick with the plan, senators compared their situation to the plight of the 14,000 Indiana residents without health insurance.

“Our caucus believes no one should be without health insurance,” said minority leader Sen. Richard Young.

Posted by Marcia Oddi on Friday, February 17, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Thursday, February 16, 2006

Ind. Courts - Retired banker running for Cass County Circuit judge

WSAL reports this afternoon:

LOGANSPORT - The race is on for Cass County Circuit judge. Pat McNarny adds his name to the list of candidates for the job. The 69 year-old Republican is running against Robert Justice and Sheryl Pherson in the May primary. * * * If elected, McNarny would have to resign his seat on the Logansport School Board. He retired from the banking business last year.

Posted by Marcia Oddi on Thursday, February 16, 2006
Posted to Indiana Courts

Law - Lawmakers override Romney veto of wine sale bill

"Lawmakers override Romney veto of wine sale bill" is the headline of an AP report today:

BOSTON --A bill making it easier for small vineyards to sell their wines directly to consumers, bypassing local retailers, is now state law, after the House and Senate voted Wednesday to override Gov. Mitt Romney's veto.

Wine aficionados pushed for the new law, saying it would open up a new world of possibilities by letting them purchase small wines over the Internet that they might not be able to find locally. * * *

The new law also includes a section that allows restaurants to re-cork bottles of wine so diners can bring them home without violating the state's open container law.

Posted by Marcia Oddi on Thursday, February 16, 2006
Posted to General Law Related

Ind. Courts - Judge clears way for challenge to oral drug tests

"Judge clears way for challenge to oral drug tests: Mary Harper hopes case will address concerns over accuracy" is the headline to this story today in the Munster (NW Indiana) Times. Some quotes:

VALPARAISO | Porter Circuit Court Judge Mary Harper agreed Wednesday to provide funding for lab work in a case she hopes will address concerns about the reliability of an oral drug test used by the county's adult probation department. "I absolutely want to know the truth of the situation," she said.

Porter County Public Defender Peter Boyles requested the funding to challenge a positive drug test for client Sherry Farden. * * *

Boyles is among several defense attorneys in the county who have voiced doubts about the accuracy of the mouth swabs carried out on behalf of the county by Great Lakes Lab in Valparaiso.

Lab Director Michael Caplis has stood behind the accuracy of the tests, saying positive results are followed up with a confirmation test. He said at least part of the concern is the result of a misunderstanding about drug testing.

Boyles had a mixed reaction to Harper's funding decision. While the judge invited him to submit a funding request, Boyles said he is having a difficult time finding a lab that is able or willing to retest the mouth swab.

Porter County Deputy Prosecutor Trista Hudson said the mouth swabs are new to this area and other local labs may not be equipped to carry out this sort of test. She downplayed a notion that other labs are intimidated by Great Lakes.

The ruling was also bittersweet for Boyles in that he had hoped the judge would approve the funding request in private and without notifying prosecutors. Now that prosecutors know a test is being carried out, he said his defense will suffer if he opts not to introduce the results as evidence. He said his client has a constitutional right to the same level of privacy as those who can afford a private attorney and who have no need to seek public funds from a court.

Harper said she would keep the identity of the lab and cost of the test under wraps. She also said prosecutors would have known something was up anyway when a request was submitted for access to the original mouth swab. The Indiana Supreme Court has frowned upon these types of requests being carried out in secret, she said. That is not to say it is never appropriate and will never be granted, she said.

Posted by Marcia Oddi on Thursday, February 16, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Courts

Ind. Courts - More on Potter appointment yesterday

Yesterday the ILB posted the Governor's press release about his appointment of John D. Potter as judge of the Jasper Circuit Court. Today's Lafayette Journal & Courier has more information:

Rensselaer attorney John D. Potter will take over the bench in Jasper Circuit Court on Friday, succeeding Judge E. Duane Daugherty, who retired effective Feb. 1.

But in order to keep the job beyond the end of this year, Potter will have to win a contested race in the May 2 Republican primary.

DeMotte attorney Earl D. Walton also has filed his candidacy for circuit judge on the Republican ballot.

Daugherty, who had been circuit judge since the early 1980s, left with 11 months remaining on his six-year term.

Posted by Marcia Oddi on Thursday, February 16, 2006
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues two today concerning anonymous and identified tips

In Sarah Sellmer v. State of Indiana, a 14-page (including a 3-page dissent), 3-2 decision, Justice Sullivan writes:

Defendant Sarah Sellmer appeals her conviction for Possession of Marijuana Over Thirty Grams. Sellmer’s arrest and conviction followed a chain of events triggered by an anonymous tip to the police that there was marijuana in her automobile and her subse-quent consent to the search of the car. The anonymous tip did not provide the police with the reasonably articulated suspicion of criminal activity required by the Fourth Amendment to detain her. While the police were entitled to approach her and ask her if she was willing to answer questions, the police procedures used here were such that her consent to search the car was not valid. * * *

[G]iven the extensive efforts that Officer Roberts went to here—again, compare with the procedures followed by the South Bend police in Jones—to persuade Sellmer to consent and to avoid advising her that she was not required to consent even in the face of her direct questions, we conclude that a reasonable person under the same circumstances as those in which Sellmer found herself would believe either that she was under arrest or, at least, that she was not free to resist the entreaties of the police.

As such, she was entitled to a Pirtle advisement, which Officer Roberts acknowl-edges he did not provide. Tr. at 53. For this reason, we conclude that the trial court should have granted Sellmer’s motion to suppress the evidence seized in the search of her car.

Conclusion. We grant transfer, thereby vacating the opinion of the Court of Appeals. Ind. Ap-pellate Rule 58(A). We reverse the trial court’s denial of Sellmer’s motion to suppress the evidence gathered during the search of her automobile and remand this matter to the trial court for further proceedings consistent with this opinion.

Boehm, and Rucker, JJ., concur.
Shepard, C.J., dissents with separate opinion in which Dickson, J., joins [which begins]:

My colleagues have declared that a rather ordinary police inquiry on the side-walks of Noblesville constituted a violation of the Fourth Amendment. While this declaration rescues Sarah Sellmer from the criminal sanctions that would otherwise flow from her transporting around a large amount of marijuana (this is not a case of someone caught smoking a joint in a dorm room), I am more concerned about its long-term effect.

The majority says in questioning Ms. Sellmer out on the walk in a tony business district the police stepped over six different constitutional lines. One may hope that resting today’s decision on six differentiated violations might cabin in the damage done to standard law enforcement inquiries, but I would say that only about three of these six declared violations pack much punch: (1) the officer asked for permission several times, (2) he told her he was there because she was under suspicion, and, my friends say, (3) he told her she could leave only if permission was granted.

In Henry Luke Kellems, Jr. v. State of Indiana, a 9-page (including a 2-page dissent), 4-1 decision, Justice Sullivan writes:
The State of Indiana challenges the Court of Appeals’ determination that an identified informant’s tip did not establish sufficient reasonable suspicion to validate a traffic stop of Henry Luke Kellems under the Fourth Amendment to the United States Constitution. Because a tip from an identified informant or concerned citizen coupled with some corroborative police investigation is sufficient to create reasonable suspicion for an investigative stop, we affirm the trial court’s denial of Kellems’s motion to suppress the evidence and his conviction as a habitual traffic offender. * * *

We conclude, therefore, that McDonald acted as a concerned or cooperative citizen in making her report of criminal activity to the police and that her tip was sufficient to support an investigative stop under either the theories of identified informant or concerned or cooperative citizen.

Conclusion. Having previously granted transfer, we affirm the trial court’s denial of Kellems’s motion to suppress and his conviction as a habitual traffic offender.

Shepard, C.J., and Dickson, and Boehm, JJ., concur.
Rucker, J., dissents with separate opinion [that begins]:

A tip given to police by a purported “concerned or cooperative citizen” standing alone is not sufficient in my view to justify an investigatory stop. According to the majority, a tip from this category of persons carries sufficient indicia of reliability because “[t]hese individuals generally come forward with information out of the spirit of good citizenship and the desire to assist law enforcement officials in solving crime.” Slip op. at 5 (quoting Pawloski v. State, 269 Ind. 350, 380 N.E.2d 1230, 1232 (1978)). Whatever validity this assertion may have as a general proposition, there is simply nothing in this record to support the notion that the caller here was so motivated.

Posted by Marcia Oddi on Thursday, February 16, 2006
Posted to Ind. Sup.Ct. Decisions

Environment - Ethanol plant granted air permit in Clymers, Indiana [More]

The Indianapolis Star has a brief item today on its website reporting:

The Andersons, an agribusiness based in Maumee, Ohio, says it has received a state air permit for the ethanol plant it plans to build at Clymers, about 60 miles north of Indianapolis.

When the plant goes on line in early 2007, its capacity of 110 million gallons a year will be the greatest east of the Mississippi River.
A perfect opportunity, I thought, to use the new IDEM Air Permit system. This story yesterday, in Government Technology, headlined "Indiana Creates Search Engine For Air Permits On The Internet," reported:
The Indiana Department of Environmental Management (IDEM) and Access Indiana have worked together to add an online air permits search engine to the Web. The Air Quality Permit Status Search Engine sorts air permits by source name, county, permit number, time frame and other criteria. The status and information in the permit will be automatically updated when changes occur.

"IDEM is working to make Indiana's environmental permitting process easy to understand and simple to access," said IDEM commissioner Thomas W. Easterly. "Being able to hop online and find every air permit in the state brings our agency one step closer to Hoosiers. What used to take an afternoon in the file room can be done with a few clicks of a mouse."

The old system forced the user to download the entire permit file in order to view basic information. The search engine provides permit status and displays information on a summary page. The complete permit remains available for downloading from the summary page.

So what about this Clymers ethanol permit?

Here is the main page for the new permit status capability. From that page, I selected the first item, "Search 1. partial source name and county." Actually, all I knew from the story was that the new plant was in Clymers, but using Google I quickly learned that Clyers is in Cass County.

I selected "Cass County" and did not fill in the source name, because I was not sure what it was. I got back a list of 40 permits issued in Cass County. Fortunately the third one on the list was Andersons Clymers Terminal, which looked right because "Andersons" was mentioned in the Star story.

Sure enough, the screen showed that Andersons was issued a FESOP permit on 2/15/2006. But that was not enough for me to know whether or not this was the ethanol plant mentioned in the Star story. So I clicked on the permit link: 017-21536-00023. and got a screen explaining that this was a "New Source FESOP (Minor PSD/EO) (120)." Still not the information I was seeking. There was one more link, to the document itself: 017-21536-00023* Unfortunately, as of this writing, the link leads to a "document not found" screen.

[More] From the company's press release:

MAUMEE, Ohio, Feb. 15 /PRNewswire-FirstCall/ -- The Andersons, Inc. (Nasdaq: ANDE) today announced it has received approval for an air permit from the Indiana Department of Environmental Management for the ethanol facility in Clymers, Indiana. Financial closing for the facility is expected soon.

"We are very pleased we are one step closer to begin construction on the Clymers ethanol facility," says President and CEO Mike Anderson. "When completed in the first quarter of 2007, the facility will have a capacity of 110 million gallons and will be the largest of its kind east of the Mississippi River."
The ethanol plant will be owned and operated by The Andersons Clymers Ethanol LLC. The Andersons, Inc. will be the lead equity investor in the facility and, in addition to managing the facility, will provide grain origination, ethanol marketing, risk management and other services.

The Andersons, Inc. is a diversified company with interests in the grain, ethanol and plant nutrient sectors of U.S. agriculture, as well as in railcar marketing, industrial products formulation, turf products production, and general merchandise retailing. Founded in Maumee, Ohio, in 1947, the company now has operations in seven U.S. states plus rail equipment leasing interests in Canada and Mexico. For more, visit The Andersons online at http://www.andersonsinc.com.

Posted by Marcia Oddi on Thursday, February 16, 2006
Posted to Environment

Law - Kentucky committee OKs bill that favors small wineries

Today's Louisville Courier Journal reports:

FRANKFORT, Ky. -- A House committee approved a bill yesterday that would allow small out-of-state wineries to ship to Kentucky customers who have bought the wine at the businesses.

If the measure becomes law, it would help bring Kentucky into compliance with last year's U.S. Supreme Court ruling that states couldn't ban shipments to residents from out-of-state wineries unless in-state wineries were subject to the same restriction.

Kentucky allows small in-state wineries to ship two cases purchased at the business to an in-state customer but prohibits such shipments by out-of-state wineries.

Unfortunately, this is not the only bill being considered in Kentucky, another requires wholesaler participation.

Posted by Marcia Oddi on Thursday, February 16, 2006
Posted to General Law Related

Law - This did NOT happen in Indiana, but rather in Kentucky!

"Two plead guilty in sex-tape case: Woman, attorney will avoid jail" is the headline to a story today in the Louisville Courier Journal that begins:

Shortly after having sex with a woman whom his office was prosecuting, Hardin County prosecutor Robert Stevens received a secretly filmed videotape of the tryst in the mail, along with three handwritten instructions.

They were: Dismiss the case against the woman, Erica French; release her bond; and contact French's attorney, Kenneth Daniels.

"Once done all stops forever," the note concluded.

Stevens did not comply, and the tape was played at a press conference in Louisville on May 26, 2004.

Although Stevens eventually was fired for his actions, a Jefferson District Court jury acquitted him in October of official misconduct.

Daniels, 52, and French, 31, weren't quite as fortunate, though they too will avoid jail.

Yesterday, French pleaded guilty in Jefferson Circuit Court to facilitation to video voyeurism and facilitation to intimidate a participant in the legal process, both misdemeanors carrying up to a year in jail.

Her jail sentence was conditionally discharged for two years.

Daniels, who now lives in Florida, pleaded guilty to felony charges of video voyeurism and intimidating a participant in the legal process. He received a two-year sentence but will be placed on diversion for five years, meaning he will avoid prison if he has no more run-ins with the law.

He will not be able to practice law while he is on diversion.

Posted by Marcia Oddi on Thursday, February 16, 2006
Posted to General Law Related

Ind. Decisions - Court of Appeals issues decision on "what is just cause" for discharge

Lisa McHugh v. Hehner & Douglass and Review Board involves a paralegal dismissed by the law firm for which she had worked less than two months who, according to today's opinion by Judge Mathias, "was discharged for just cause pursuant to Indiana Code section 22-4-15-1(d)(8), specifically for breaching her duty of honesty to Employer by leaving work to attend Carburetion Day at the Indianapolis Motor Speedway." The conclusion:

Concluding that the Board’s determination that Employer terminated McHugh for “just cause” was not contrary to law, and that the Board did not err when it denied McHugh’s request to submit additional evidence, we affirm.

Posted by Marcia Oddi on Thursday, February 16, 2006
Posted to Ind. App.Ct. Decisions

Law - Federal agencies try to limit suits in state courts

On January 19th the ILB posted an entry titled "Law - FDA Tries to Limit Drug Suits in State Courts." One of the articles referenced was from the Washington Post, headlined "FDA Tries to Limit Drug Suits in State Courts: Agency's 'Federal Preemption' Policy Included in Labeling Guidelines for Medications."

Today the Post has another story, headlined "Rules Would Limit Lawsuits: U.S. Agencies Seek To Preempt States." This story barely mentions the FDA effort, but cites other agency examples:

The Bush administration is using federal rulemaking to limit consumer rights to seek damages under state laws governing faulty products.

The Consumer Product Safety Commission will vote today on a rule that would restrict such suits in the case of mattresses that catch fire, the most recent rule changes undertaken by several agencies. Last month, the Food and Drug Administration limited consumers' ability to recover damages for injuries from agency-approved drugs.

Meanwhile, the National Highway Traffic and Safety Administration is seeking to give automakers similar legal immunity from lawsuits over defective roofs if their vehicles meet new roof-crush standards. It is also proposing to limit consumer lawsuits in a rule that would address seat-belt requirements.

Administration officials say they are simply writing into rules a long-standing policy previously voiced in many friend-of-the-court briefs filed in lawsuits. The FDA, for example, has intervened in a number of consumer cases filed under state laws against makers of drugs and medical devices, saying the companies should be protected from state laws because they followed federal rules. NHTSA has argued in several cases against carmakers that its safety rules preempt state rules and tort claims.

"Having a single federal standard is the best way to guarantee safety," said Brian Turmail, spokesman for the Transportation Department.

White House officials said preemption provisions proposed by different federal agencies do not reflect a concerted administrative policy. Decisions about federal preemption "are made agency-by-agency and rule-by-rule," said Alex Conant, spokesman for the Office of Management and Budget. "Under the Constitution, federal laws take priority over inconsistent state laws."

Consumer advocates and trial lawyers say the threat of consumer lawsuits has prompted manufacturers to continually develop safer products that far exceed federal standards.

Posted by Marcia Oddi on Thursday, February 16, 2006
Posted to General Law Related

Ind. Gov't. - Lawsuit to block closing of Silvercrest fails

"Judge: State can close Silvercrest - Disabled children will be transferred" is the headline to this story today by Dick Kaukas in the Louisville Courier Journal. Some quotes:

A judge will not prevent the state from closing Silvercrest Children's Development Center, which treats children from around Indiana with multiple disabilities.

Special Judge Cecile A. Blau wrote in an order filed yesterday in Floyd Superior Court that she would not grant a preliminary injunction keeping the center open.

"There was no evidence of irreparable harm" that would result from the closing, she said.

Blau, a Clark County Superior Court judge, also said state officials had the authority to close Silvercrest, without a statute explicitly saying they could do so. * * *

Yesterday's ruling followed a hearing last month when lawyers for the students, families, teachers and other employees at Silvercrest argued that because the center was created by statute, it could be closed only by the legislature, not by state officials.

For that reason, the plaintiffs' lawyers also sought a permanent injunction against the closing.

But Blau rejected the claim that only a statute could close Silvercrest, and adopted the arguments presented by Steven Jackson, a lawyer for Daniels and Dr. Judith Monroe, state health commissioner.

Blau wrote that under state law, Monroe "has complete administrative control and responsibility" for Silvercrest, including its closing.

If the legislature wanted to retain the right to close the facility, it could have said so, Blau said.

She noted that in some statutes, the legislature has said that the head of a facility couldn't close it "unless specifically authorized" by the General Assembly.

Such language was missing from the Silvercrest statute, she said, concluding that "there was no restriction placed by the legislature on the administrative power of the state health commissioner to close Silvercrest."

Blau's ruling said that the quality of care provided at Silvercrest was not in question.

The issues in the case, she said, "are not whether this is a caring and dedicated staff or whether Silvercrest has assisted individuals with multiple disabilities and their parents and guardians who are trying to care for their family members."

Instead, she said, the issue she was asked to decide was whether the closing would cause "irreparable harm" and she decided that it would not.

This ruling follows in time a decision on a similar lawsuit brought last year opposing the closing of the Fort Wayne State Developmental Center. See ILB entries detailing that effort from 12/23/05 and 12/28/05.

For background on the Silvercrest suit, see these ILB entries from 1/4/06, 1/27/06, and 1/28/06.

Posted by Marcia Oddi on Thursday, February 16, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Government

Ind. Gov't. - "Senators will keep lifetime benefits"

Several papers report today on the changes to be made to the Senate health care perks. The bottom line, so far as the ILB has been able to determine:

"Senators will keep lifetime benefits" is the headline to a story by Michelle McNeil in today's Indianapolis Star. Some quotes:
Taxpayers will continue to pay for lifetime health insurance for most state senators, even though this perk grew so unpopular with the public that the Indiana House canceled it.

Senate leaders said Wednesday they've retooled the plan to save Hoosier taxpayers money, but they wouldn't say how much the current plan costs, how much the new plan will cost or how much money will be saved.

The Senate's new plan is based on a complicated formula that uses a senator's age and years of service to determine how much his or her health insurance premium will be.

Taxpayers save money because the perk no longer will be offered to those who leave the Senate before age 50. In addition, retired senators will have to join Medicare at age 65, which shifts some of their health-care costs onto that federally funded program. * * *

Senators also get to keep the coverage for their families, including ex-spouses.

Sen. Luke Kenley, R-Noblesville, said that as an employer, the Senate wanted to help those who retired after age 50 but before they're eligible for Medicare. "You don't have any way to get any insurance. You're outta luck," he said. * * *

Senate leaders staunchly defended their decision to keep the benefit. Sen. Vi Simpson, D-Ellettsville, said this serves as a model to other employers. "I think it's really important that everyone has access to the health system."

My thought. Yes, Hoosiers know this. That does not mean they will agree that they should continue to guarantee and to help subsidize such insurance for part-time legislators and their families who retire after age 50.

Lesley Stedman Weidenbener reports in the Louisville Courier Journal:

The current House Speaker, Brian Bosma, R-Indianapolis, said last month that he was essentially eliminating the program for his members. Under his plan, lawmakers who retire after the upcoming election could stay on the state health insurance plan only if they pay the full premium cost.

That would be at least three times more than they were paying under the old plan. * * *

Sen. Luke Kenley, the Noblesville Republican who helped develop the new rules, said research shows that individuals in their mid-50s and older will struggle to find health insurance on their own. So he said Senate leaders believed it was appropriate to leave some benefits in place for older retirees.

Under the new plan, however, senators will typically pay more for their coverage and will be required to join the federal Medicare program when they are eligible. Currently, they and their families can continue to receive state health-care coverage -- paying the same percentage they did as state employees -- for the rest of their lives.

Kenley said that a retired senator's cost for the new program will be based on a sliding scale that takes into account time served and age at retirement.

The longer senators serve and the greater their age at retirement, the less they'll pay for insurance. Younger senators with less tenure will pay more.

For example, if Kenley retires this year at age 60, his 14 years of experience means he would pay about 53 percent of his insurance premium, while the state would pick up the other 47 percent. That compares with the 24 percent of the premium that Kenley pays now.

If Garton retires in three years at age 75, his 26 years of service means the state would continue to pick up about 76 percent of his insurance costs.

However, because Garton now qualifies for Medicare, he would not be eligible to sign up for the full state plan. Instead, he could receive only a state Medicare supplement. * * *

Sen. Earline Rogers, D-Gary, said employers should be providing that coverage, and she commended Garton for continuing some insurance for retirees. She said that should serve as an example for private businesses.

My thought. Well yes, but private business pays with its own money, while the legislature pays with our money.

"Separated (cushioned?) from reality" is the only answer I can come up with to explain why these legislators can seriously set forth as a justification for their health care perks the fact that most Indiana citizens "do not have any way to get insurance" unless they have a plan through an employer.

The Indianapolis Star editorial today is headed "Don't be fooled by Garton's games." It begins: "Our position: Senate leader's change in health benefits for retired legislators is a farce."

[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 Thursday, February 16, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Wednesday, February 15, 2006

Ind. Courts - Former Attorney Charged with Theft

"Former Attorney Charged with Theft" is the headline to a brief story today on Terre Haute's WTWO News. Some quotes:

A former attorney was in court in Sullivan County Wednesday, only this time she was the one being charged.

Julia A. Johnson Sheffler is accused of theft. Johnson allegedly diverted nearly $300,000 from an estate trust fund.

Vigo County Prosecutor, Bob Wright is the special prosecutor on the case. Wright says he`s not pleased to be prosecuting a former attorney, but the evidence against Sheffler is strong.

“It`s a black mark for all lawyers, but I guess in every profession there`s a good and bad and we have to accept that in our profession also,” says Bob Wright, Special Prosecutor.

Posted by Marcia Oddi on Wednesday, February 15, 2006
Posted to Indiana Courts

Ind. Courts - Upcoming Res Gestae article on the recent effort to change the judicial nominating process

My Res Gestae article for the March issue is titled "Analysis of another effort to alter the Indiana judicial selection and retention process." Some quotes:

The Indiana House rules committee, in late January, voted to amend a “vehicle bill” – a bill with no content introduced as a “place saver” – by adopting a committee report inserting language changing the way Indiana appellate judges and justices are selected and retained. The changes were to take effect immediately upon passage. * * *

The discussion that follows will examine: (1) the content and impact of the proposed statutory amendment; (2) previous changes to the membership of the nominating commission; and (3) legal issues posed by the changes proposed in HB 1419.

Posted by Marcia Oddi on Wednesday, February 15, 2006
Posted to Indiana Courts

Ind. Courts - Judge change request causes court chaos

Pat Tharp reports today in the Richmond Palladium-Item in a story headlined "Judge change request causes court chaos." The story begins:

LIBERTY, Ind. -- An Indianapolis attorney who represented the son of a Union County Councilman says he should have listened when his client asked for a new judge in his cases.

A post-conviction relief hearing was held Tuesday in Union Circuit Court for Alan Alcorn II on the effectiveness of his legal representation in two cases.

Alcorn told attorney Stephen Lewis that he wanted another judge after Union Circuit Judge Matthew Cox replaced Judge James Williams in January 2005. Alcorn said he wanted the change because his father, Council President Alan Alcorn, had voted to cut the court and prosecutor's 2005 budgets.

Alcorn said he also was concerned because he knew there was a close relationship between Cox and Prosecutor Ronald Jordan. Cox and Jordan's son, David, had practiced together before Cox joined the Wayne County prosecutor's office.

After his conviction and sentencing, Alcorn appealed to the Indiana Court of Appeals on the issue of ineffective assistance of trial counsel. In July, the appeals court returned the case to the trial court to put into evidence information on ineffective assistance that didn't appear in the trial court record.

Posted by Marcia Oddi on Wednesday, February 15, 2006
Posted to Indiana Courts

Ind. Gov't. - Senate health care perk modified somewhat [Updated]

Bill Ruthhart has within the hour posted a story on the Indianapolis Star website that reports:

The Indiana Senate today modified its health care coverage to lessen the burden on Indiana taxpayers.

Under changes announced this morning, senators would have to pay more for their health coverage.

Health insurance will only apply to legislators who retire after the age of 50 with at least six years and one day of service in the legislature. Previously, health benefits applied to lawmakers of any age.

Hopefully, complete details will be made available later - these sketchy details indicate that the Senate plan for retired legislators and their families, as well as the plan for Senators and their kin who retire in the future, will continue with minor tweaks, and may be modified or expanded via a simple, unpublished memo of the leadership at any time in the future.

[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.]

[Updated at 12:55 pm] An AP story by Mike Smith has been posted on the Fort Wayne Journal Gazette. Some quotes:

State senators are scaling back their retirement health benefits, but the changes announced Wednesday did not go as far as a decision by the House to end lifetime, state-subsidized health insurance for those who leave office after the November election.

Under a plan offered since 2002, state lawmakers who served a day more than six years and then retired or were not re-elected were allowed to receive lifetime state health insurance for themselves and their families. Premiums were locked at their current percentage, even if health care costs rose.

Under a House change announced last month, representatives elected or re-elected this November would have to pay the full cost of their coverage with no state subsidy to stay in the insurance plan after leaving office. They also would lose most of their coverage after becoming eligible for Medicare.

The new Senate plan eliminates the benefit for senators or senate employees who retire before the age of 50. Those who retire after that would still receive subsidized health insurance, but their premium copay would be based on a sliding scale that took into account years of service and retirement age.

The longer senators or Senate employees had served and the older they were, the more the state would pay for their health insurance. Those who were younger and had fewer years of service would shoulder more of the insurance premium cost.

Also, retirees would no longer be part of the full plan once they became Medicare eligible. The state would, however, subsidize a Medicare supplement - again based on years of service and retirement age.

Posted by Marcia Oddi on Wednesday, February 15, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Courts - Governor appoints Jasper Circuit Court Judge

Via a news release:

INDIANAPOLIS (February 15, 2006) – Governor Mitch Daniels announced today the appointment of John D. Potter as judge of the Jasper Circuit Court. He succeeds Judge E. Duane Daugherty, who retired effective February 1, 2006.

Potter has worked in private practice for nine years with a concentration in criminal law, family law, and probate. Since 2000, he has been a sole-practitioner in the Law Office of John D. Potter.

“John has diverse legal experience in state and federal courts. His peers hold him in high regard, and we believe he will do an outstanding job on behalf of the citizens of Jasper County,” said Daniels.

Potter received his undergraduate and master’s degrees from Indiana State University and a law degree from Indiana University, Indianapolis. He is currently chairman of the Jasper County Hospital Board of Directors and has served as a board member of the Jasper County Community Corrections Center. Since 2002, John has served as pro bono legal counsel for the Jasper County Youth Center.

Potter’s appointment will be effective February 17.

Posted by Marcia Oddi on Wednesday, February 15, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals decides two today

In Richard L. Calhoon v. State of Indiana, a 7-page opinion, Judge Baker writes:

Appellant-defendant Richard Calhoon appeals from his conviction for Burglary,1 a class C felony. Calhoon raises a number of issues, one of which we find dispositive: whether the evidence was insufficient to support his conviction. Finding that the evidence was insufficient because it did not establish that he used even the slightest force to gain entry to the premises, we reverse in part and remand to the trial court with instructions to vacate Calhoon’s burglary conviction. * * *

The State points to evidence showing that upon gaining entry to the property, Calhoon and Bowman began picking up scrap metal, taking it to a hole in the fence, and dropping it through the hole. The State suggests that this evidence establishes that a breaking occurred. But what matters for the purpose of the burglary statute is how the defendant entered the property, not how he exited the property. I.C. § 35-43-2-1. Here, the undisputed evidence shows that Bowman and Calhoon gained entry to the property without even the slightest use of force. That they dropped the scrap metal through a hole in the fence is of no moment, inasmuch as they did not “break and enter” in the first place. Thus, it is our conclusion that the evidence was insufficient to support Calhoon’s conviction for burglary.

In Jimmie Burkes v. State of Indiana, an 11-page opinion, Judge Sullivan concludes:
In conclusion, the anonymous tip by itself was insufficient to support a finding of reasonable suspicion justifying an investigatory search of Burkes. However, combined with the fact that he was in the immediate vicinity of Williams, who had an outstanding warrant for her arrest, and that Burkes fled the detectives’ order to freeze, the facts known to the detectives at that time gave rise to a reasonable suspicion that Burkes was engaged or about to engage in criminal activity, and Detective Blackwell was justified in apprehending Burkes. After being detained, Burkes admitted to possessing marijuana and a handgun, thus justifying a further search of his person incident to his lawful arrest. For these reasons, we cannot say that the trial court erred in admitting the evidence seized from Burkes’s person. The judgment of the trial court is affirmed.

Posted by Marcia Oddi on Wednesday, February 15, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - Eminent domain bill tightened or trimmed, depending on headline

"Revised bill would make it harder to seize land" is the headline to a story today by Michelle McNeil on the Indianapolis Star. Some quotes:

Indiana property owners would gain even more protection from governments that want to seize their land under a revised bill that seeks to tighten the state's eminent domain laws.

An Indiana Senate committee unanimously endorsed the bill after adding new restrictions for libraries and private cemeteries.

Both have the power of eminent domain under current law and can seize land for public purposes. Under the revised House Bill 1010, private cemeteries would lose that power.

Libraries would keep their eminent domain power but face a new legal obstacle -- they first would have to seek permission from their local governing body, such as a city council or township board, before going after someone's land.

"Senate trims eminent domain bill: Private sewer utility provision eliminated" is the headline to a story today by Lesley Stedman Weidenbener in the Louisville Courier Journal. Some quotes:
A restriction that would have stopped small, privately owned sewer companies from accessing homeowners' land without their permission was stripped from an eminent domain bill passed yesterday by a state Senate committee.

The provision had been inspired by situations in Floyd County in which residential developers are using, or have threatened to use, the state's eminent domain law to try to bury wastewater or sewage pipes on private land owned by people opposed to the move.

But members of the Senate Corrections, Criminal, and Civil Matters Committee said yesterday that they're not interested in approving language in the bill to deal with individual problems. * * *

But Sen. Connie Sipes, D-New Albany * * * said, lawmakers routinely react to problems in their district.

In fact, just an hour or so after removing the private sewer utility language, the Senate committee voted to take the power of eminent domain away from privately owned cemeteries. That came after Sen. Brent Steele, R-Bedford, said he'd learned that a privately owned cemetery in his district has been "gobbling neighborhood real estate" for future expansion.

Posted by Marcia Oddi on Wednesday, February 15, 2006
Posted to Indiana Law

Ind. Courts - Alphonso (Al) Manns announces run for Monroe Circuit Court, Division V

Via a press release from Mr. Manns:

Alphonso (Al) Manns, a democrat, makes this public announcement that he will seek election to the office of judge of Monroe Circuit Court, Division V, Seat 3, Region 10. Manns graduated from the Indiana University School of Law with a Doctor of Jurisprudence (J.D.) in 1972. * * * Manns has served as a general and appellate practitioner of law throughout Southern Indiana for the last twenty-five (25) years. He has engaged and argued cases before many county courts, the Indiana Court of Appeals, Indiana Supreme Court, U.S. District Court of Southern District of Indiana, and Seventh Circuit of the U.S. Court of Appeals.

Posted by Marcia Oddi on Wednesday, February 15, 2006
Posted to Indiana Courts

Ind. Decisions - Appeals court to hear Lawrence utilities case

The Indianapolis Star reports today that:

The Indiana Court of Appeals will hear an appeal of a Marion County judge's ruling that invalidated a private company's contract to operate Lawrence's sewer and water utilities.

The appeal will halt the lawsuit in Marion Superior Court until the appellate panel determines whether Judge David J. Dreyer correctly ruled in November that the contract violated state bidding laws. Dreyer's order would give day-to-day control of the utilities to Mayor Deborah Cantwell's Democratic administration.

The appellate court's order, issued Monday, came nearly a month after the Indiana Supreme Court turned down the city's request that it hear the appeal directly, without waiting for the Court of Appeals to act.

Access the Nov. 2, 2005 ruling by Judge Dreyer here, via the ILB. See also entries from Nov. 3, Nov. 4, and Nov. 5, 2005.

Posted by Marcia Oddi on Wednesday, February 15, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Disclose Toll Road Bids

"Disclose Toll Road bids" is the headline to an editorial today in the Fort Wayne Journal Gazette. Some quotes:

But some details the administration has declined to disclose – most notably, the names and offers of the unsuccessful bidders. And the governor’s proposed legislation allows the state to block public scrutiny of the bids until after a contract is signed and delivered.

It’s a hypocritical position for an administration that promised voters it would “shine daylight on the competitive bidding process by requiring that all contract awards and their terms are immediately disclosed to the public.”

Where’s the daylight in this deal?

Current state law provides that all bids be disclosed seven days before the selection of a winning bid to allow the public time to review offers and to comment on them.

It was a compromise to a measure initiated by Indianapolis Mayor Steve Goldsmith, who wanted legislation allowing public agencies to negotiate deals in private.

The Indiana Coalition for Open Government has protested the legislation’s provisions: “Under the proposed , the losing bids will not be available until the final contract is signed and the state receives its check – considerably too late in the process for citizens, media or other bidders to question provisions in the selected bid,” it states on its Web Site.

Here is where the language at issue in the proposed HB 1008 begins:
Proposed IC 8-15.7. Public-Private Partnerships
Chapter 4. Procurement Process
Section 6. (a) (a) After the execution of a public-private agreement and the completion of the process of negotiating all phases or aspects of the agreement, the authority shall make available, upon request, procurement records in accordance with this section. Before the completion of a procurement under this article, all procurement records are confidential and are not subject to disclosure or inspection under IC 5-14-3. Except as provided by this section, all proceedings, records, contracts, and other records relating to procurement under this article are public records.

Posted by Marcia Oddi on Wednesday, February 15, 2006
Posted to Indiana Government

Tuesday, February 14, 2006

Ind. Courts - More on plan to link 400 courts takes another step

Yesterday the ILB posted this entry about the Indiana Supreme Court's announcement that it was rebidding its statewide case management system project.

Today a reader has sent the ILB a copy of a letter from Chief Justice Randall T. Shepard and Associate Justice Frank Sullivan, Jr., sent to all Indiana trial judges and county clerks.

One thing that puzzles me, after reading both today's letter and yesterday's press release and request for proposals, are statements such as this ("If you are contemplating using the statewide CMS, ...") from today's letter, and this ("Although the Supreme Court has not required all courts to adopt a statewide CMS and is unlikely to do so in the near future, if at all, ...") from yesterday's request for proposals. What happens if a county doesn't participate? Do they have the option of not being part of the statewide network? Hasn't the law required for years that local court fees be collected and sent to the State to fund this effort?

(See this ILB entry from March 22, 2005, which discussed the funding.)

Posted by Marcia Oddi on Tuesday, February 14, 2006
Posted to Indiana Courts

Ind. Gov't. - Another article on Senator Garton and health care perks

Brian Howey, in his weekly column in the Decatur Daily Democrat, focuses on Senate President Pro Tempore Robert D. Garton.

Posted by Marcia Oddi on Tuesday, February 14, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Courts - Court of Appeals decides two today

In Larry Benford, Sr. v. Jon Marvel, et al., Chief Judge Kirsch concludes:

The record before us does not indicate that the October 2004 allegations of dealing pending against Benford have been resolved. Accordingly, the time within which the Board must provide Benford a probation revocation hearing has not expired, he is not entitled to immediate release, and the trial court properly denied his petition for writ of habeas corpus.
In Jacob Scott Love v. State of Indiana, Chief Judge Kirsch writes:
On appeal, we address the following restated issues: I. Whether an anonymous tip that Love committed a specific robbery coupled with an eyewitness report that a person matching the robber’s description walked in the general direction of Love’s home shortly after the robbery constituted reasonable, articulable, individualized suspicion that justified the seizure and search of Love’s trash. II. Whether two burnt candle holders, a powdery substance that field-tested positive for cocaine, and three used hypodermic needles in the Love family’s trash established probable cause to justify the issuance of a search warrant authorizing the search of Love’s home. We affirm. * * *

Here, the trial court did not err in finding that a substantial basis existed to conclude that probable cause was present. The trash that the officers legally retrieved from Love’s household contained both drug paraphernalia and evidence of cocaine. Given the presence of cocaine, and the fact that the possession of cocaine itself is a crime,4 we conclude that the warrant was based upon probable cause, and the evidence discovered during the execution of the warrant was admissible. See Edwards, 832 N.E.2d at 1080 (marijuana seeds found in defendant’s trash, which were relied upon to provide probable cause for warrant, constituted sufficient probable cause because possession of seeds itself was a crime).

Posted by Marcia Oddi on Tuesday, February 14, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Supreme Court decides two today

In Marvin Taylor v. State of Indiana, a 9-page, 5-0 opinion, Justice Rucker writes:

Defendant Marvin Taylor filed an interlocutory appeal challenging the trial court’s denial of his motion to suppress cocaine seized as the result of an inventory search of his car. Concluding the inventory search was impermissible we reverse the judgment of the trial court. * * *

Generally, a search warrant is a prerequisite to a constitutionally proper search and seizure. Halsema v. State, 823 N.E.2d 668, 676 (Ind. 2005). In cases involving a warrantless search, the State bears the burden of proving an exception to the warrant requirement. Id. We recognize a valid inventory search as an exception to the Article I, Section 11 warrant requirement. Thus the State must show that the search was reasonable in light of the totality of circumstances. Trowbridge v. State, 717 N.E.2d 138, 144 (Ind. 1999). In this case, the factors leading to our conclusion that impounding Taylor’s car was not warranted by police administrative caretaking functions support the conclusion that the requirements of the Indiana Constitution were violated as well. In plain terms, considering all of the facts known to the police officers at the moment of impoundment, it simply was not reasonable for them to believe that consistent with objective standards of sound policing, Taylor’s vehicle posed some threat or harm to the community or the vehicle itself was imperiled.

Conclusion. The State did not carry its burden under either the Fourth Amendment to the United States Constitution or Article I, Section 11 of the Indiana Constitution. The judgment of the trial court is therefore reversed and this cause remanded with instructions to grant Taylor’s motion to suppress.

In State of Indiana v. Thomas A. Quirk, a 10-page, 5-0 opinion where you really need to read the facts to see the whole picture, Justice Rucker concludes:
We conclude that under the totality of the circumstances the Troopers’ detention of Quirk beyond the period necessary to issue a warning ticket and the subsequent search of his truck was unreasonable within the meaning of Article I, Section 11. As a result, the evidence seized thereby was tainted and was properly suppressed. We therefore affirm the judgment of the trial court.

Posted by Marcia Oddi on Tuesday, February 14, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Will state wineries die on the vine?

"Will state wineries die on the vine? Industry says bill halting in-state shipments could cripple it." That is the headline to this long and comprehensive story today in the Indianapolis Star by Bill Ruthhart. Some quotes:

House Bill 1190 would not only prevent wine from being shipped to Indiana, but it would eliminate state wineries' ability to ship their wine directly to Hoosiers.

After the U.S. Supreme Court ruled last year that states must treat all wineries equally, the Indiana Alcohol and Tobacco Commission decided to eliminate state wineries' right to ship their products to Hoosiers.

Nine state wineries then sued in Marion Circuit Court, receiving an injunction in November that allows them to continue shipping wine in-state until March 1 -- the deadline given for the General Assembly to solve the issue.

That has left Indiana lawmakers with a decision: allow all wine to be shipped to Hoosiers or none.

For now, legislators seem poised to choose the latter.

Four bills were proposed in the General Assembly that would legalize wine shipments to and from Indiana, but all died without receiving a vote. Instead, the bill outlawing wine shipments has passed the House and moved on to the Senate, leaving Indiana's 31 wineries worried their businesses could be in jeopardy.

Posted by Marcia Oddi on Tuesday, February 14, 2006
Posted to Indiana Law

Ind. Courts - "Indiana Supreme Court got first black, first woman in '95"

During the entire 20th century, the Indiana Supreme Court had, briefly, one woman member. What of the 21st century?

These thoughts were occasioned today by an item in the Louisville Courier Journal celebrating Black History Month:

The first 103 members of the Indiana Supreme Court were white men. Gov. Evan Bayh changed that in 1995 by choosing Myra Selby, a black woman, as a justice. She was not quite 40 years old.

At her urging, the court created the Race and Gender Fairness Commission, and she became its chairwoman. Selby said at the time that the judiciary "has a heightened level of responsibility to foster and promote equality."

Selby left the court in late 1999 to join a large Indianapolis law firm, becoming its first African-American partner. She downplayed that role at the time, noting that while it's an achievement to be first, it is "probably the least enviable position."

As for the Indiana Supreme Court, it is once again all male, but its newest member, Justice Robert D. Rucker, is an African American.

Posted by Marcia Oddi on Tuesday, February 14, 2006
Posted to Indiana Courts

Ind. Law - Reader asks good question about small wineries bill

Just a few minutes ago the ILB posted an entry (scroll down two) about Senator Garton's action on the canned deer hunting bill, quoting from a story in the Fort Wayne Journal Gazette by Niki Kelly:

Senate President Pro Tem Robert Garton, R-Columbus, sent the bill to the Senate Rules Committee where he said it will die.

He said the Senate for years has refused to pass legislation that would affect pending litigation, and a lawsuit was filed in August against Hupfer and the DNR after the agency moved to ban the facilities.

A reader has written to ask: "I wonder what this means for small winery shipping . . . ".

Good point, as that matter is also in litigation. See these ILB entries from Nov. 17, 2005 and Nov. 29, 2005.

Posted by Marcia Oddi on Tuesday, February 14, 2006
Posted to Indiana Law

Ind. Law - Marion County prosecutor candidate proposes ordinance to keep sex offenders out of public parks

In this story WTHR Channel 13 quotes Marion County Prosecutor candidate Melina Kennedy:

Democrat candidate for prosecutor Melina Kennedy says it's time the county enact more stringent bans on sex offenders.

"Like some other cities, we enact a law that prohibits sex offenders from being in places like parks, playgrounds and pools," she suggested Monday.

This ILB entry from Dec. 14th, 2005 reports on a lawsuit filed in Hendricks County challenging a Plainfield ordinance which imposes such a ban. The ILB entry also gives some history on similar bans in Lafayette, Kokomo, and Michigan City. The Michigan City case is currently pending before the 7th Circuit. [A check of the 7th Circuit docket this morning shows that oral arguments have not yet been set in Brown v. Michigan City.]

The Indianapolis Star reported on Jan. 7, 2006 that "Plainfield has received more time to respond to an Indiana Civil Liberties Union suit challenging the town's ordinance banning sex offenders from parks and recreational areas."

Posted by Marcia Oddi on Tuesday, February 14, 2006
Posted to Indiana Law

Ind. Gov't. - Canned deer hunting bill stymied, at least for now

Niki Kelly of the Fort Wayne Journal Gazette reports today:

Senate President Pro Tem Robert Garton, R-Columbus, sent the bill to the Senate Rules Committee where he said it will die.

He said the Senate for years has refused to pass legislation that would affect pending litigation, and a lawsuit was filed in August against Hupfer and the DNR after the agency moved to ban the facilities.

“I’ve never been a supporter of them, but that’s irrelevant,” Garton said Monday.

Sen. Tom Weatherwax, R-Logansport, sponsor of the bill in the Senate, said the entire issue is on life support. He could try to find another bill to amend the language into – that is allowed because it already passed one chamber – but hasn’t identified a new home yet. “A lot of people like what [DNR] Director Hupfer did,” Weatherwax conceded.

From earlier in the story:
bill giving high-fenced hunting preserves a reprieve has been scuttled in the Senate, leaving legislators scurrying to find a new home for the somewhat unpopular language.

The House recently passed House Bill 1349 by a slim margin. It would have given existing shooting preserves until 2013 to recoup money invested in their operations before closing down the facilities.

There has been confusion in recent years about the legality of the sites, which allow hunters to pay money to shoot pen-raised deer and elk in a confined area.

But Department of Natural Resources Director Kyle Hupfer announced in August that nothing in Indiana law allows these preserves to exist, and said he would shut them down unless the legislature acted to stop him.

Some lawmakers have argued this year that previous administrations allowed the businesses to start, and closing them without warning would be unfair. As a result, the House voted 53-29 to grandfather existing canned hunting sites – about a dozen around the state – until 2013.

Posted by Marcia Oddi on Tuesday, February 14, 2006
Posted to Environment | Indiana Government | Indiana Law

Monday, February 13, 2006

Environment - Cleanup of former Indiana Army Ammunition Plant underway in Clark County

The Louisville Courier Journal reports today, in a story by Alex Davis:

The first phase of a $53 million environmental cleanup at the former Indiana Army Ammunition Plant is nearly complete, bringing it a step closer to realizing its potential as one of the largest industrial sites in the Louisville area.

Army officials said last week that they have finished work at 78 of the 90 locations on the property where soil or water were contaminated. Most came from small amounts of lead and mercury, residue from the plant's five decades of producing explosives for the military.

When the last 12 locations are declared safe — the Army hopes to finish by September 2007 — hundreds of additional acres will be turned over to the River Ridge Commerce Center, the industrial park being developed there.

But serious work at the Clark County site remains. In a second phase of the cleanup, the Army has targeted 326 buildings where leftover explosive material might pose a safety hazard.

In early 2004, the Army burned the first 64 of those structures using a technique that drew criticism from environmentalists. An additional 115 buildings are to be burned between next November and March 2007.

Posted by Marcia Oddi on Monday, February 13, 2006
Posted to Environmental Issues

Ind. Law - Even more on Canned deer hunting preserves

Thanks to TDW, we can update Sunday's ILB entry on canned hunting with a link to a South Bend Tribune editorial that urges "State should say no to 'canned hunts'". The Tribune concludes:

Lest anyone think this is a dispute between animal protection advocates and hunters, it isn't. Many of the comments that the director collected came from hunters who are disgusted by the unsporting aspects of shooting captive animals at close range, often while they are at feeding stations.

This is not a practice that should exist in Indiana for the next seven years, or even the next year. It is not governed now by state law, which is the reason Hupfer stepped in. His judgment was fact-based and sound. It should not be second-guessed at the 11th hour by the General Assembly.

The House has passed House Bill 1349. The Senate should vote it down on its merits. In the event that it does not, we hope that Gov. Mitch Daniels will support the judgment of his DNR director and exercise his veto.

Posted by Marcia Oddi on Monday, February 13, 2006
Posted to Environment | Indiana Government | Indiana Law

Ind. Courts - Plan to link 400 courts takes another step

Today the Indiana Supreme Court has announced that it is rebidding its statewide case management system project. The last word we had on this venture was on Oct. 24, 2005, when the Indiana Supreme Court's Judicial Technology and Automation Committee (JTAC) announced that it would "invite trial court case management system vendors to demonstrate their systems to the staff during the next several weeks." (see ILB entry here.) That announcement followed the JTAC announcement from late September of 2005 that it was terminating its long-time multi-million dollar contract with Computer Associates, because of the failure to develop a system.

From today's announcement:

Indianapolis, IN - The Indiana Supreme Court Division of State Court Administration today released a Public Notice of Contracting Opportunity (PNCO) seeking proposals which would provide Indiana courts and clerks with a 21st Century Case Management System (CMS).

“This undertaking is unprecedented in its breadth and complexity and encompasses all three branches of government. When completed, the CMS will fulfill the court's vision of an efficient, cost-effective and accessible statewide justice information system,” said Chief Justice Randall T. Shepard.

The Indiana Supreme Court's Judicial Technology and Automation Committee (JTAC), the Case Management System Executive Committee and the JTAC Statewide Governing Board jointly recommended the new procurement.

This PNCO is a continuation of an automation effort first started in 2002, when the Division contracted with a vendor for a statewide CMS. That contractual relationship was terminated on mutually agreeable terms with a significant refund of monies to JTAC. As part of that previous work, an extensive list of functional requirements for an Indiana CMS were defined. Special teams including technical experts, judges, clerks and key stakeholders have reviewed relevant portions of the functional requirements which have been incorporated in the present PNCO. * * *

Responses to the PNCO are due March 15, 2006. Finalists will then be asked to conduct on-site demonstrations that will last approximately five days. Neither the Division nor JTAC is obligated to award a contract in response to the PNCO.

The PNCO is a 148-page Word document. For easier access, the ILB has converted it to a pdf file, which may be accessed here. A look at page 4 of the document indicates that the Court is still looking to replace local courts' case management systems with this new system, rather than the approach of tieing together and unifying the county courts' information output. Here is JTAC's rationale:
A large majority of Indiana courts maintain their dockets on all of their cases using a computer program called a “case management system” or “CMS.” But in the view of the Supreme Court, there are at least four major problems with existing case management systems. First, a lack of consistency: existing CMS products differ from court to court. Second, many of the existing CMS products use outdated technology. Third, while the existing CMS products store court information, many do not manage it – for example, they do not automatically send out notices, or set up schedules of hearings or create reports. And fourth, most existing CMS products exist only for the courts – they are not connected to: law enforcement agencies; state agencies like the Bureau of Motor Vehicles (BMV); courts in other counties (or cities, towns, and townships); or lawyers and the public.

The Supreme Court believes that these problems can be successfully addressed if all Indiana courts have a 21st century CMS that connects each court’s system with every other court’s and with those who need and use court information so that:

  • Indiana trial courts and court clerks are able to manage their caseloads faster and more cost-effectively;

  • Users of Indiana trial court information – notably, law enforcement agencies, state policy makers, and the public – receive more timely, accurate, and comprehensive information; and

  • The costs of trial court operations borne by Indiana counties are reduced.
The Supreme Court undertook a project to this effect in 2002. Following a competitive procurement, the Division entered into a contract with a vendor to provide and install such a system. By mutual agreement, the contract with that vendor was terminated in September 2005. However, the Court continues to believe that the acquisition and installation of a statewide CMS connected with those who need and use court information is in the best interests of trial courts and court clerks, users of court information, and taxpayers. Based on the Court’s continued commitment to a statewide CMS, its experience with the other vendor’s contract, and its assessment of CMS products available today, the Court has authorized the issuance of this PNCO.

The Division anticipates that the statewide CMS will use the successful vendor’s existing case management products with the capacity for necessary customization. Program management for the statewide CMS is the responsibility of the Division and JTAC, which will operate with the assistance of its employees, various elected officials, consultants and local governmental units. Other professional service providers may be engaged to provide such services that the Division finds necessary for the project to succeed. The list of functional requirements below is for ease of reference and should not be considered a definition or specific assignment of responsibilities. The precise scope of work will be defined during the selection and negotiation processes.

The Division seeks a full-featured CMS with training, deployment and support services, and the successful vendor will work closely with the Division to customize and plan implementation of the statewide CMS. The elements of a statewide CMS implementation will include the ability to integrate and/or interface with other state agencies including but not limited to the BMV, the State Police, Department of Correction, the Family and Social Services Administration, and entities under the Supreme Court’s jurisdiction. The statewide CMS must also meet the functional requirements established by the Division (listed in Section M) and have the ability to comply with the State Board of Accounts’ requirements (which are available at www.in.gov/sboa/publications/). Furthermore, the statewide CMS must have the ability to interact and exchange data with other case management systems currently used in Indiana courts (identified in Section H. Interfaces) and ProsLink, a data management system developed by the Indiana Prosecuting Attorneys Council and used by most Indiana county prosecutors.

Although the Supreme Court has not required all courts to adopt a statewide CMS and is unlikely to do so in the near future, if at all, vendor proposals should include cost estimates that assume the installation of the CMS in approximately 300 courts of record in 92 Indiana counties and approximately 47 city, 27 town, and nine small claims courts. Costs for hardware, if provided by the vendor, should be separate from the overall CMS estimate. Submissions must also include a proposed deployment schedule that specifically describes the timeline, rationale, costs and other resources expected to be contributed by the Division, JTAC and/or local courts and clerks. The successful vendor will be required to adhere strictly to the negotiated budgetary levels and deployment schedule.

Note: See particularly the discussion on pp. 26-27 of the PNCO.

Posted by Marcia Oddi on Monday, February 13, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals decides six today

In D.B. v. State of Indiana, a 14-page opinion, Judge May concludes:

The evidence supports the juvenile court’s true findings of rape and child molesting. D.B.’s adjudication as a delinquent for rape and child molesting based on a single act of nonconsensual sexual intercourse violates the double jeopardy protections of the Indiana Constitution. D.B.’s placement with the Department of Correction until his eighteenth birthday was not an abuse of discretion. The juvenile court did not abuse its discretion in denying D.B. credit for his pre-dispositional detention. Accordingly, we affirm in part, reverse in part, and remand to the juvenile court with instructions that it vacate the true finding of child molesting.
In Douglas Castro v. State of Indiana Office of Family and Children, a 16-page opinion, Judge Vaidik writes:
Douglas Castro appeals the trial court’s order terminating his parental rights to his daughter, T.P. Specifically, Castro argues that there is insufficient evidence to support the trial court’s decision and that he was denied due process of law during the CHINS/termination proceeding. Castro also contends that Indiana’s entire CHINS/termination scheme is unconstitutional in that it deprives all parents of due process of law. Finding that the trial court’s decision to terminate Castro’s parental rights was supported by clear and convincing evidence and that the requirements of the Due Process Clause were satisfied, we affirm the termination of Castro’s parental rights. We also hold that Indiana’s CHINS/termination scheme does not violate the Due Process Clause.
In William B. Hepburn and Lois M. Wilbur Hepburn v. Tri-County Bank, a 13-page opinion, including a one-page dissent, Judge May writes:
Lois M. Wilbur Hepburn and William Hepburn appeal the trial court’s grant of summary judgment to Tri-County Bank. They raise one issue on appeal, which we restate as whether the guaranty Lois signed in 2002, which indicated it was “unsecured,” was nevertheless secured by mortgages she had signed in 1998, 1999, and 2002 because those earlier executed mortgages included dragnet clauses. We affirm.

KIRSCH, C.J., concurs.
ROBB, J., dissents with opinion.

The majority declines to adopt Lois’ reasoning that the Bank waived the opportunity to assert the mortgages secured the guaranty because the Bank marked the guaranty “unsecured.” I agree with Lois and thus, must respectfully dissent.

I agree that the dragnet clauses in the mortgages could have attached the mortgages to the later-executed guaranty, as the language of the clauses is quite broad. However, the mere fact that they could have does not necessarily mean that they have to. The dragnet clause gives priority in future advances to the Bank if the Bank desires, but not does require it. That the Bank marked the guaranty “unsecured” manifests an affirmative intention not to attach the mortgages. Under these circumstances, I would hold that the trial court erred in granting summary judgment for the Bank.

In Re: Commitment of C.J. v. Midtown Comm. Mental Health Center - involuntary commitment, affirmed.

In Phillip E. Schlabach v. State of Indiana, a 16-page opinion, Judge Crone concludes:

Without informing Schlabach, the trial court improperly permitted the jury to consider an inadmissible and highly prejudicial document of which Schlabach was unaware and which the State did not intend to offer into evidence. We therefore reverse Schlabach’s convictions and remand for a new trial.
In David Stainbrook as Pers. Rep. v. Trent Low, a 19-page opinion, Judge Vaidik writes:
David Stainbrook, as personal representative of the Estate of Howard W. Stainbrook, appeals the trial court’s grant of specific performance of a real estate agreement to Trent Low. We find (1) that the trial court properly denied the Estate’s motion to dismiss for lack of verification because the Estate failed to bring their motion until the start of trial, and the claimant was available and prepared to testify at that time, and (2) that specific performance was an appropriate remedy in this case. Therefore, we affirm.

Posted by Marcia Oddi on Monday, February 13, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - Telecom: Phone dereg moving full-speed ahead

Patrick Guinane has a comprehensive story today in the Munster (NW Indiana) Times on the telecommunications deregulation effort. From the sidebar:

What's next? House and Senate committees will consider deregulation measures this week. The measures are Senate Bill 245 and House Bill 1279. Both efforts have made it halfway, meaning the two chambers still must agree on one and send it to the governor.
From the story:
While vastly overshadowed by the governor's $3.85 billion plan to lease the Indiana Toll Road, both chambers of the General Assembly have approved measures that would deregulate traditional phone service and give the state, not individual cities, the power to negotiate local cable TV franchises.

It's a debate playing out in several other states and Congress. Consumer groups say deregulation is merely a rate hike waiting to happen. But Indiana lawmakers largely have endorsed the concept.

"Perhaps the single most important step government can take for our economic future is to ensure the best possible infrastructure, the strongest possible framework, to support the businesses of tomorrow," Republican Gov. Mitch Daniels said last month in his State of the State address.

"In a wired world, infrastructure no longer means just roads, rail lines or waterways, but also the invisible fibers and frequencies over which today's most vital and valuable commerce is transacted.

"It is time to modernize a telecommunications regulatory system set up for the age of monopolies and copper wire to unleash this century's most dynamic, diverse and competitive technologies."

Not everyone views deregulation in such a flattering light. More than half of Indiana AARP members strongly oppose the effort, according to a survey released last week.

"Any legislator who votes for these anticonsumer bills has voted to raise their constituents' rates for basic local service and throw service quality out the window," said Grant Smith, executive director of the Citizens Action Coalition of Indiana.

The deregulation effort would remove the Indiana Utility Regulatory Commission's authority to regulate residential phone service beginning in 2009.

The phone companies would set their own rates. But they argue increased competition will stave off higher phone bills.

A similar deregulation effort stalled last year, despite some $1.1 million SBC Indiana spent to lobby state lawmakers. SBC since has acquired AT&T and taken its name.

Before that marriage, the two competitors waged an all-out war in Illinois. SBC won the 2003 battle as legislation it authored whisked through the General Assembly and was signed by Gov. Rod Blagojevich in less than a week. But a federal judge threw out that law, sending the debate back to the Legislature.

Posted by Marcia Oddi on Monday, February 13, 2006
Posted to Indiana Law

Ind. Gov't. - "Sen. Garton, kill health care perk"

"Sen. Garton, kill health care perk" is the headline to today's Indianapolis Star editorial. It begins:

Our position: Senate president pro tempore should end perk that gives legislators and their families subsidized health care for life.

You're probably asking yourself, Sen. Garton, why you should take away from your fellow senators a generous benefit that provides heavily subsidized health, dental and vision care for retired lawmakers and their families for life. The Star Editorial Board offers some answers.
The Star editorial concludes:
Will primary opponent Greg Walker and Democratic challenger Terry Corriden use this issue against me this year?

Ask former colleague Lawrence Borst, whose defeat at the hands of now-Sen. Brent Waltz was as much due to outrage about the perk as it was about Borst's opposition to gaming expansion. Or talk to state Rep. Troy Woodruff, who credits voter outrage over the perk with his victory over incumbent John Frenz two years ago.

The answer, senator, is yes. And deservedly so.

So how can I save my job and best serve the voters?

Even though Rep. Woodruff's plan to kill the perk, in the form of HB 1309, died in the House, you can simply end the benefit with the stroke of a pen. Speaker Brian Bosma did exactly that last month. Then, in next year's session, you could support a new version of the bill to end the subsidy permanently.

[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, February 13, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Sunday, February 12, 2006

Ind. Law - Wine shipping bill to be heard Wednesday in Senate committee

According to the Gary Post-Tribune, the wine shipping bill, HB 1190, will be heard Wednesday in Senate committee. (See also HB 1250)

"State lawmakers turn winery tourism industry sour"
is the great headline to this lengthy story by Avon Waters today in the Anderson Herald Bulletin. Some quotes:

Two new bills regulating the sale of wine in Indiana may turn the Indiana wine industry into sour grapes.

If passed, winery industry officials estimate all but one of Indiana’s 34 wineries and tasting rooms in the state would eventually close.

The bills being considered by the Indiana Legislature will shut down Indiana wineries, said Tia Agnew, co-owner with husband Brett Canaday, of New Day Meadery in Elwood. The Meadery is scheduled to open in March.

“Our whole business plan is based on direct sales and sales to mom and pop retail stores and to local restaurants,” Agnew said. “The bills take two out of three avenues of sales away from us. We’re Indiana’s smallest winery. We are a boutique winery and it could put us out of business.”

This is not just an Indiana story, of course, as earlier ILB "wine shipping" entries hopefully have indicated. In many states the outlook this year for small wineries is not good.

An active battle against the wholesalers appears to be going on in Illinois, with 5,300 consumer letters reportedly sent to Illinois legislators in January, according to this press item from BusinessWire.com.

Here are two recent stories ot of Maryland, this one headlined "Local vineyards may wither: New ruling mandates use of middleman," and this one, "Wineries decry new sales rule: Officials, lawmaker say restriction could ruin state’s growing industry." A quote from the beginning of the latter:

The state Comptroller’s Office stunned Maryland winery officials last week when it told them they may no longer sell directly to Maryland retailers and restaurants, effective March 31.

The restriction could devastate Maryland’s burgeoning wine industry, says Kevin Atticks, executive director of the Maryland Wine Association, a trade group.

"If and when this takes effect, it has the potential of putting a lot of small farm wineries out of business,” Atticks said. ‘‘Maryland wineries have relied on the ability to deliver [directly] to the restaurants and retailers in this state.”

Carol Wilson, president of the association and owner of Elk Run Vineyards in Mount Airy, said the prohibition would ‘‘irreparably harm” the industry.

The new restriction helps Maryland comply with last year’s U.S. Supreme Court ruling that state laws that favor in-state over out-of-state wineries violate the Constitution’s Commerce Clause, according to the comptroller’s notice.

Unlike in-state wineries, out-of-state wineries must reach consumers via Maryland’s three-tier system, selling to a distributor, which then sells to retailers, which then sell to consumers.

Industry leaders say the new rule is a reaction to a suit filed against the state last year in U.S. District Court by Robert Bushnell of Silver Spring and Wright Wine Works of Barto, Pa. The plaintiffs claim inequitable treatment of out-of-state wineries under Maryland law. The goal of the suit, said Stephen Wright, owner of Wright Wine Works, is to open up Maryland for direct shipping to consumers.

Wright said the case finds its roots in the office of Indiana lawyer James A. Tanford, who, following last year’s Supreme Court ruling, realized state legislatures would be slow to comply. Tanford began recruiting wineries and consumers to file suit in states — including Maryland — that would be affected by the high court ruling, according to Wright.

A phone call to Tanford seeking comment was not immediately returned.

Posted by Marcia Oddi on Sunday, February 12, 2006
Posted to Indiana Government

Ind. Gov't. - Bill would exempt DNR from several laws

According to a story today by Drew Laird in the Bloomington Alternative, SB 354 was originally:

intended to improve the popular classified forest program, but the Daniels Administration added two troubling provisions to the bill.

One sentence buried deep in the bill’s final paragraphs would exempt logging on public lands from the provisions of the Indiana Environmental Policy Act. This law requires that the DNR conduct environmental assessments of timber harvest operations.

The Indiana Forest Alliance filed a lawsuit three years ago, arguing that the DNR is breaking the law by ignoring IEPA. Currently, the Indiana Forest Alliance, Heartwood, the Hoosier Environmental Council, and Sassafras Audubon Society are preparing to file a lawsuit against Gov. Mitch Daniels’ plan to increase logging on state forests based on the IEPA violations.

DNR Director Kyle Hupfer admitted in the Senate Natural Resources Committee hearings that the provision was added specifically to kill the lawsuit filed against the DNR.

The other troubling provision eliminates the 14-inch diameter requirement of merchantable timber on public lands. This means that all sizes of trees can be sold off state properties, thus opening the state forests to clear-cutting operations.

The report continues that Rep. Jerry Denbo, D-French Lick, "and State Rep. Matt Pierce, D-Bloomington, have agreed to propose an amendment to the bill to eliminate the IEPA exemption provision."

The bill has already passed the Senate and is currently in the House Natural Resources Committee. The story indicates the committee is meeting Tuesday. No committee shcedules currently are posted on the General Assembly site.

For background, see this Sept. 26, 2005 ILB entry (2nd item), where environmental impact statements are discussed.

They are also discussed in this Jan. 25, 2006 ILB entry about the new hotel DNR intends to build on the Dunes State Park beach.

Posted by Marcia Oddi on Sunday, February 12, 2006
Posted to Indiana Government

Ind. Gov't. - Legal bills arrive for the City of Kokomo

Earlier this morning the ILB posted an entry on Fort Wayne's legal bills. The Kokomo Tribune had a very long story Friday by Scott Smith headlined "Legal bills arrive for city: More than $33,000 spent defending controversial lawsuits." The story begins:

Ryan Nees said he went looking for Mayor Matt McKillip’s master list of e-mail addresses after receiving what he called a “spam” political e-mail from the mayor.

City officials told Nees he wasn’t entitled to a copy of the list. They said he could inspect it and copy it by hand.

Nees said state law entitled him to copies.

The city said Nees’ interpretation of the law was incorrect and that handing out copies of the list could result in more spam for city residents.

Rather than provide the Western High School student with copies of the list, the city has so far spent $4,387 on lawyers to fight the teen’s public records lawsuit.

“I think it’s a shame they spent a dime,” Nees said. “They didn’t have to.”

For background on the Nees issue, see this ILB entry from 10/18/05 and this one from 1/19/06.

Posted by Marcia Oddi on Sunday, February 12, 2006
Posted to Indiana Government | Indiana Law

Ind. Gov't. - Failure to submit paperwork to Indiana Public Defender Commission costly to many counties, including Marion

Sara Eaton of the Fort Wayne Journal Gazette reports that the Public Defender Commission reimburses counties "for a portion of the cost to defend people charged with crimes who cannot afford to hire an attorney."

Statewide, 53 counties participate in the public defender program, but nearly half those counties did not receive any money in the most recent round of payments, according to the Indiana Public Defender Commission.

The commission reviews and approves the requests for reimbursement from individual counties, which must meet certain criteria to be eligible. The commission sets recommended standards for public defenders, the operation of the county offices and for attorney caseload to ensure quality representation to the clients.

Recently, 13 counties were denied reimbursement because they failed to submit proper paperwork or failed to do so in a timely manner. This included Marion County, which typically receives more than $1 million annually but received nearly $3 million during the state’s last fiscal year.

Nine counties simply did not submit any paperwork requesting a reimbursement.
The commission will reimburse up to 40 percent of public defender expenses incurred by eligible counties per quarter. Historically, the commission has been able to pay the full 40 percent to every county that has submitted a request, commission attorney Michael J. Murphy said.

But there are times when the commission’s finances don’t meet the amount of the requests and a lesser percentage must be paid, he said. The amount is pro-rated, he said, and every county receives the same payment percentage. * * *

The recent failure of 13 counties to submit their requests in a proper or timely manner likely helped counties that made proper submissions because more money was available to pay a smaller pool of requests.

Posted by Marcia Oddi on Sunday, February 12, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - Allen County examines legal fees [Updated]

A story today in the Fort Wayne Journal Gazette by Benjamin Lanka is headlined "County examines legal fees: Bills of $800,000 a year spur search for alternatives." Some quotes from the long story:

Spending more than $800,000 on attorney fees each of the last two years has some Allen County officials looking to Fort Wayne Community Schools for an education.

According to data from the Allen County auditor, the county spent $816,317 on 14 attorneys last year. Bill Fishering, who represents the county, received $347,783 last year – more than any county employee earned. Of that money, $53,964 was paid to him in base salary. The remaining $293,819 was paid to Fishering’s firm, Beers, Mallers, Backs & Salin, for his work. As a partner in the firm, Fishering earns a percentage of its profits.

Those amounts have some members of the Allen County Council questioning how the county pays for its legal advice. They said hiring some attorneys to work full time for the county could reduce the total amount of money paid for lawyers.

Fort Wayne paid more than $1 million in attorney fees to 11 law firms plus more then $300,000 in salaries and benefits to its internal legal department. Members of the City Council, however, did not see an overwhelming reason to bring more attorneys in house.

Of the amount paid to attorneys by the county, $254,649 went to base salaries for eight attorneys. The rest was paid to many of the same attorneys for extra work, done mostly on an hourly basis. The county is billed $150 an hour for legal work. * * *

County Councilman Cal Miller, R-4th, said he is confident the county could find a set of attorneys to hire full time to deal with their issues and save money.

He cited the success Fort Wayne Community Schools had with such a move. In 2003, the district hired William Sweet of Beckman Lawson LLP for $250,000 a year to be its full-time attorney. Sweet had previously worked for the district on an hourly basis. The district determined it could save money by bringing him in and having him take over most of the legal work that was being outsourced. * * *

City Council President John Crawford, R-at large, said the council periodically looks at attorney staffing, but said he didn’t see a great chance for savings whether the city hired more in-house attorneys or not. “It’s always going to be a fairly high number when it’s all done,” he said. Crawford also said the city doesn’t want to get cheap legal advice if it means getting poor legal advice.

Of the $1 million spent by the city, the largest chunks went to Baker & Daniels – $355,970 – and Carson Boxberger – $301,111. The city’s total did not account for attorneys working for City Utilities. Tim Manges, city attorney, said the bulk of the city’s costs – like the county – go to defending lawsuits. He said there are typically 30 pending lawsuits at any one time and the city pays $125 to $150 an hour to defend them, depending on the firm. * * *

Despite the fact the attorneys are picked by politicians, county commissioners said politics plays no part in their selection. Many of the firms give political donations to the commissioners, mostly by participating in their annual golf outing.

Beers, Mallers, Backs & Salin gave each commissioner $333 last year, which Fishering said played no role in the fact the county paid $459,915, including base salaries given attorneys, last year and $1.2 million over the last three years for the firm’s attorneys. Not including base salaries, the county paid Fishering’s firm $356,659 last year. He said the political giving is so small, someone would have to be “nuttier than a fruitcake” to think it led to getting county work.

Here is a graphic from the story, showing the top recipients.

[Updated 2/14/06] Today's Journal Gazette has an editorial following up on Sunday's story. A quote:

Since 1961, when the county commissioners named legendary GOP Chairman Orvas Beers as county attorney, someone from the Beers firm has been named to the post. Fishering has held the position since 1984. Given the Republicans’ lock on county government, the appointment has been a matter of routine far too long.

Posted by Marcia Oddi on Sunday, February 12, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - More on Canned deer hunting preserves

Skip Hess' "Outdoors" column today is headlined "Latest fenced hunting bill has veterans in crosshairs." Why? Because the House added a provision to the bill continuing canned hunting to provide veterans with free hunting, fishing and trapping licenses for life -- to discourage legislators from voting against the bill. As Hess writes:

If you were a state representative running for re-election during a time of war, would you want your opponent to remind voters that you voted against a lifetime free hunting, fishing and trapping license for men and women who served their country?
On the other hand, would you want the voters to know you supported canned "hunting"? More from the column:
Indiana sportsmen groups have adamantly opposed this form of shooting deer and elk because it flies in the face of fair chase.

Last year, DNR director Kyle Hupfer took a stand on the issue in his first year on the job and proposed that all deer and elk shooting preserve operations be shut down this year, subject to approval by legislators. * * *

The bill proposes that facility owners who were in business after 2003 be allowed to operate until 2013 to recover their financial investment.

However, the DNR contends the facilities are illegal. If the Senate doesn't pass the bill, DNR authorities say they will close the shooting preserves July 1.

Here is the proposed DNR rule, which:
Amends 312 IAC 9-3-2 and adds 312 IAC 9-3-18.5, concerning the hunting of white-tailed deer possessed under a game breeder license and the taking, possessing, and releasing of exotic mammals, to prohibit the taking and releasing of the exotic mammals described in this rule. Adds 312 IAC 9-10-21 concerning exotic mammals possession permits.
See the most recent ILB entries from Feb. 1 and Feb. 3.

Posted by Marcia Oddi on Sunday, February 12, 2006
Posted to Indiana Government | Indiana Law

Ind. Law - Yet another story on legislative health care perks, state pensions, and Senator Garton

Matthew Tully's politics column today is headed "Old-school politician flunking government reform." Some quotes:

I really had no intention of spending this year's General Assembly session taking whacks at Senate President Pro Tem Robert Garton. Honest. * * *

You might recall that I wrote a column a few weeks ago poking fun at Garton for not spiking a wildly excessive lifetime health-care perk for current and future ex-lawmakers.

Garton didn't like the column, but he still hasn't spiked the perk. He stood by it. That's what old-school politicians do.

Nonetheless, Garton's stubborn defense of the perk is not why he is the star of today's column. Nope. Today I'm writing about Garton because of a bill he recently killed.

The bill, proposed for the second year in a row by Gov. Mitch Daniels, seeks to go after the pensions of some government workers -- such as excise police and gaming agents -- who take bribes or otherwise rip off the state. The bill sells itself. * * *

Looking for details on the pension bill, I went to the Senate floor and approached Sen. Dennis Kruse, R-Auburn, who introduced the bill for the governor. Kruse got the bill through the Senate Pensions Committee last month, only to watch Garton dump it. Kruse made clear the decision to kill the bill was Garton's.

So I walked over to Garton. I asked him why. His answer included "procedures" and "study committees." He worried the bill did not "address every single instance that can come up."

Garton took the easy out. He acted amid talk of amending the bill to include scofflaw lawmakers -- not a popular idea with some lawmakers. The problem was that passing the bill without lawmakers would be a bad public relations move. So Garton did the easy thing. He shelved the bill.

Still, Garton is not the only one at fault.

[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 Sunday, February 12, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Saturday, February 11, 2006

Ind. Courts - More on: Supreme Court permits filming of juvenile court proceedings

A Sept. 7, 2005 ILB entry quoted a Munster (NW Indiana) Times story that began:

CROWN POINT | Cameras aren't allowed in Indiana courtrooms -- with one exception.

Karen Grau, of Calamari Productions, was filming at the Lake County Juvenile Justice Center Tuesday.

Seven years ago, the Indiana Supreme Court gave Grau, of Indianapolis, unprecedented access to juvenile court proceedings. They lifted the veil so the world could view what goes on in the otherwise tightly secured proceedings, said Dave Remondini, spokesman for the state's highest court.

Today the NWI Times has a story by Ruthann Robinson reporting that:
Come summer, Lake County teens will be teaching kids nationwide what not to do.

South Bend native Karen Grau is producing the eight-part documentary following delinquent teens through Lake County's juvenile court system.

"It's MTV's goal (with this production) to have kids who may find themselves in the same circumstance see the outcome of a wrong decision." Grau said.

"Our goal is to find average teens doing things average teens do." * * *

The Indiana Supreme Court gave Grau, who now lives in Indianapolis, unprecedented access to juvenile court proceedings in 1998. * * *

The payback for the courts is the camera catches teachable moments. All footage Grau shoots is available for judge, lawyer and court volunteer training.

No aspect of the project is outside Grau's control. Because she is the only one on the crew that understands "all the legal minutiae" of court proceedings, Grau is intimately involved in every court sequence shot. Even though all the action and dialogue are recorded on tape, Grau, ever the journalist, takes notes on everything said.

Grau estimates 90 percent of her job is talking -- to parents, kids, media, staff -- smoothing the way to make sure she puts out the best possible product.

Posted by Marcia Oddi on Saturday, February 11, 2006
Posted to Indiana Courts

Friday, February 10, 2006

Ind. Decisions - More on: Morgan County lesbian couple fight to keep child [Updated]

On October 15th, 2005 the ILB had an entry quoting from an AP story that a "lesbian couple from Morgan County has gone to the Indiana Court of Appeals to win the adoption of a 1-year-old girl approved by a judge in one county but denied by a judge in another."

Today the case was argued before the Court of Appeals. You may watch the oral argument here. Here is the Court's synopsis of the case:

The Matter of Infant Girl W., The Adoption of M.W.
Case Number: 55A01-0506-JV-289

Synopsis: In a CHINS proceeding, the Morgan Juvenile Court entered an order finding the best interest of the child to be adoption by a “couple.” The court defined “couple” to mean “a man and woman that are married.” The foster-adoptive parents, lesbian partners with whom the child had resided since shortly after her birth, obtained a decree of adoption in the Marion Probate Court. The adoptive parents then moved to dismiss the CHINS proceeding. The Morgan Juvenile Court denied the motion and refused to recognize the Marion Probate Court’s adoption decree in the CHINS proceeding. The Court of Appeals granted the adoptive parents’ interlocutory appeal from the Morgan Juvenile Court’s denial of their motion to dismiss the CHINS proceeding, and the State appealed from the Marion Probate Court’s adoption decree. The appeals were consolidated because they arise from a common nucleus of facts.

The Scheduled Panel Members are: Judges Baker, Najam and Vaidik

[Updated 2/11/06] Today's papers have no stories on yesterday's oral arguments. (Although I did see a brief story on Channel 6 last evening.)

But today's Cincinnati Enquirer contains this story about a bill introduced in the Ohio General Assembly. Some quotes:

COLUMBUS - Gays, bisexuals and anyone who's undergone a sex change would be banned from adopting or raising foster children under a bill introduced this week and backed by two Southwest Ohio legislators.

House Bill 515, introduced Thursday, bars any adoptive or foster child from being placed in the private residence "of a homosexual, bisexual, or transgender person." Florida is the only state with such a ban. * * *

Critics of the proposal see it as politically motivated, introduced to attract votes. At least six other states are debating similar bills.

"It's the wedge issue for the next election," said Susan Truitt, legal projects coordinator for the National Center for Adoption Law and Policy at Capital University in Columbus. "It's the get-out-the-vote for the right-wing nuts.

"There is always a shortage of foster homes all over the country," Truitt said. "To exclude an entire segment of the population from the opportunity to foster or adopt is a disservice to these children."

Equality Ohio and the American Civil Liberties Union called the proposal divisive and harmful.

"This bill is blatant discrimination in its worst form,'' said Christine Link, executive director of the ACLU of Ohio. "It will only cause families to be ripped apart, children to be denied a loving home and the social services systems in Ohio to be flooded with children who would have been otherwise placed in healthy environments."

Posted by Marcia Oddi on Friday, February 10, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - Indiana State University still pursuing third law school effort

In response to the ILB entry yesterday on the NY Times story about how law school applications are declining, and my connecting it to the ISU efforts for a third Indiana law school, a reader has sent me an "update letter" dated Jan. 23, 2006, from Lloyd W. Benjamin III, President, Indiana State University, to (apparently) The Indiana Business Journal, reporting that ISU's efforts for a third state law school are ongoing. Access it here.

Posted by Marcia Oddi on Friday, February 10, 2006
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending February 10 2006

Here is the Indiana Supreme Court's transfer list for the week ending February 10, 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, February 10, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending February 10, 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 February 10, 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, February 10, 2006
Posted to NFP Lists

Ind. Gov't. - More on the Indiana General Assembly's video record

Charles Wilson of the AP story has a story today, published in the Lafayette Journal & Courier, headlined "Indiana one of growing number of states Webcasting Legislature." Some quotes:

House Speaker Brian Bosma said his long-term goal is an "I-SPAN" channel similar to C-SPAN, which would televise Statehouse proceedings.

"I believe it's important to open the doors of the Statehouse to the average Hoosier. ... I think there's an important accountability function there as well," said Bosma, R-Indianapolis.

Such accountability can have unforeseen consequences. Last year, the American Civil Liberties Union of Indiana used the House's online video archives to review daily prayers before filing a federal lawsuit accusing the state of unconstitutionally endorsing a particular religion.

The Legislature isn't required to offer video, but now that it does, any stored video remains public record, said April Schultheis of the Indiana Public Access Counselor's Office.

The Legislature archives video only from the current session on its Web site. [NOTE: Only the House archives its video for any period of time, the Senate video is only available as the Senate is meeting each day.] Some video from last session is being stored off-line because of the prayer lawsuit, said House Republican caucus spokesman Tony Samuel, but otherwise, lawmakers currently have no plans to maintain video archives from past sessions.

Lawmakers have had "mixed opinions about opening the process in this way," Bosma said, in part because lawmakers' intent in passing a particular bill can play a large part in later litigation.

"The intent of one of 150 members, however, may not accurately reflect the intent of the Legislature in its entirety," Bosma said. "So, we have to sort through how these records are to be used in the future."

The video might be public record, according to Schultheis, but that does not make it the official record. She compared it with court proceedings, where a digital recording is used to make a transcription that becomes the official record.

The General Assembly has no official record that includes debate, Bosma said.

Vaughn agrees the video is not official but that "there needs to be an official record, like the Congressional Record."

The ILB this morning requested a copy of the Public Access Counselor's unofficial opinion in this matter, but learned that it had been communicated via a phone call.

The ILB agrees that a "public record" may or may not be used as evidence, and may or may not be considered an "official record" of a proceeding; however, that does not lead to the conclusion that a public record, such as the videos of the General Assembly session days, may be disposed of at will.

For more, see this ILB entry from Feb. 8th.

Posted by Marcia Oddi on Friday, February 10, 2006
Posted to Indiana Government | Indiana Law

Ind. Decisions - Court of Appeals posts five today

In In the Matter of the Paternity of D.L.Y.R., a 4-page opinion, Judge Robb writes:

The State of Indiana, by the Allen County Title IV-D Prosecutor, appeals from the trial court’s order limiting the amount of income withheld from Demetrius Clark’s paychecks to $70 per week, contending the withholding of additional amounts from bonuses Clark received was proper, and that Clark had notice of such withholding. * * *

For these reasons, we hold that the trial court improperly limited the IWO to a maximum of $70 per week, and we remand for further proceedings. Reversed and remanded.

In Kunta K. Gray v. State of Indiana, an 18-page opinion, Judge Crone concludes:
In light of the multiple serious violent charges faced by Gray, we conclude that Gray’s appellate counsel’s failure to raise the severance/bifurcation issue, which was clearly set out by trial counsel and not waived by the stipulation, amounted to deficient performance. This deficient performance prejudiced Gray because had the issue been raised on direct appeal, he very likely would have received a new trial. Although we rarely find that appellate counsel is ineffective, based on the circumstances present here, we are convinced that this is one such case. The post-conviction court’s finding to the contrary leaves us with a definite and firm conviction that a mistake has been made. We must therefore reverse the denial of Gray’s petition for post-conviction relief and remand this case for a new trial. See id. at 680-81 (reversing post-conviction court’s judgment where appellate counsel’s “failure to present . . . claim on direct appeal of murder conviction amounted to ineffective assistance.”).
In Eryk-Midamco Company, et al. v. Bank One, N.A., a 10-page opinion, Judge Baker writes:
Appellants-defendants The Eryk-Midamco Company (Eryk), Mid-America Management Corporation (Mid-America), and Mark Misencik (collectively, the Appellants) appeal from the trial court’s order granting summary judgment in favor of appellee-defendant Bank One, N.A. (Bank One). The Appellants raise a number of issues, one of which we find dispositive: did the trial court err in failing to find that Bank One was barred from pursuing a conversion claim against the Appellants?1 Concluding that Bank One is statutorily barred from pursuing its conversion claim against the Appellants by virtue of Indiana Code section 32-30-5-1 et seq., the receivership statute, we find that summary judgment should be granted in favor of the Appellants.
In Indiana State Board of Health Facility Administrators v. Angela Werner, F.H.A., a 25-page opinion, Judge Barnes writes:
The Indiana State Board of Health Facility Administrators (“the Board”) appeals the trial court’s reversal of the Board’s order suspending Angela Werner’s health facility administrator license and requiring her to pay the costs of the proceedings. * * *

Conclusion. The trial court had subject matter jurisdiction over Werner’s petition for judicial review. The issue of whether it had jurisdiction over the case is waived because the Board failed to raise it in a timely manner. The Board’s decision to impose significantly more severe sanction without explanation is arbitrary and capricious and without observance of procedure required by law. However, under the facts of this case, the trial court should not have compelled the Board to adopt the ALJ’s recommended sanctions; remand is the appropriate remedy. We affirm in part, reverse in part, and remand.

"State erred in nursing home penalty" is the headline to a brief AP story on the Indianapolis Star site this afternoon.

In Estate of Christopher Sullivan, Thomas Sullivan, Administrator and Rhonda Sullivan v. Allstate Insurance Company, a 10-page opinion, Judge Baker writes:

Appellants-defendants Estate of Christopher Sullivan, Thomas Sullivan, and Rhonda Sullivan (collectively, the Appellants) appeal from the trial court’s order granting summary judgment in favor of appellee-plaintiff Allstate Insurance Company (Allstate). In particular, the Appellants argue that the trial court erred in defining the term “use” too narrowly in the context of an Allstate automobile insurance policy and in declining to find a genuine issue of material fact. Finding no error, we affirm the judgment of the trial court.

Posted by Marcia Oddi on Friday, February 10, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - "Attorney: ‘You can’t zone out a business’"

"Attorney: ‘You can’t zone out a business’" is the headline to a story today in the Terre Haute Tribune-Star. Some quotes:

Many residents who crowded into West Terre Haute’s town hall Thursday night said the town should not spend money fighting a federal lawsuit that would be filed if the council denied the rezoning petition for a strip club at the edge of town.

About 50 people attended an informational meeting about possible ramifications if the council denied the rezoning petition for Club Koyote at 121 Paris Ave.

Since 2004, the club has been fighting a lawsuit filed by the Vigo County Area Plan Commission alleging the club was not properly zoned for exotic dancing. In January, a rezoning petition was filed requesting to change from a C-2 community commercial district to a C-5 commercial entertainment district.

The commission gave the petition an unfavorable recommendation to the Town Council, which will decide Monday night whether to approve it.

Although West Terre Haute council members did not say how they will vote next week, town officials indicated the zoning would be approved.

“If the town board votes no on Monday, I would be shocked if we were not sued on Tuesday,” said town attorney Richard Shagley II. “In essence, it would be ‘zoning out’ and you can’t zone out a business.” * * *

The Town Council brought in former city of Indianapolis attorney Mark J. Crandley, who now works for Barnes & Thornburg, to explain the litigation process. Indianapolis constructed an ordinance and permit process regulating adult entertainment three years ago when the city had numerous adult bookstores, cabarets and drive-in adult theaters, he said.

Immediately after the ordinance was passed, a federal lawsuit was filed, he said. The city had proof that the businesses caused the crime rate to increase and public health safety to decrease and a federal judge eventually ruled in favor of the ordinance last year, Crandley said.

For background on "adult business" zoning, start with this 1/16/06 ILB entry.

Posted by Marcia Oddi on Friday, February 10, 2006
Posted to Indiana Law

Ind. Courts - More news on judgeships

The Columbus Republic reports today:

Judge Chris Monroe is seeking a fourth term as Bartholomew Superior Court 1 judge.

A Republican who was first elected in 1988, Monroe, 50, said he wants to continue serving the community.

The Kokomo Perspective reported Wednesday:
A large number of local politicians and candidates are routinely late turning in their campaign finance forms, an examination of documents from the clerk’s office shows.

This year, half of all financial forms arrived late at the clerk’s office. And last year, three officeholders never turned their paperwork in, including Kokomo Common councilmen Greg Sheline and Dan Haworth, and Howard County prosecutor Jim Fleming. All three were also late on this year’s filing.

A fourth officeholder, Superior Court III Judge Doug Tate, turned his 2005 paperwork in four months late and was late again this year.

Posted by Marcia Oddi on Friday, February 10, 2006
Posted to Indiana Courts

Environment - Stories today re IDEM on: CAFOS; Benzene

CAFOS. The Fort Wayne Journal Gazette has an editorial today on IDEM enforcement of CAFO regulations. Some quotes:

Daniels’ appointee responsible for the Indiana Department of Environmental Management has sent a message to Hoosiers that he is less than enthusiastic about enforcing the state’s regulation of confined-animal-feeding operations, or CAFOs.

At the annual Indiana Pork Producers convention, Tom Easterly, commissioner of IDEM, pandered to the audience by telling them he would suspend enforcement of CAFO regulations for at least the next three years. His excuse for not doing his job was that he wanted to wait until the EPA cleared up confusion over federal laws regulating CAFOs. * * *

After Easterly’s imprudent remarks to the hog farmers received a flurry of righteous scorn, he backpedaled. He said he meant that IDEM would not be enforcing deadlines for existing farms to file stormwater, soil-conservation and nutrient-management plans required for National Pollutant Discharge Elimination System permits because the EPA is considering extending those deadlines. Easterly added that IDEM would hold farmers accountable for violating water-quality standards.

In 2005, the state environmental management agency received the most CAFO application requests in any year for at least a decade. That dramatic increase in confined-animal-feeding operations requires the state’s regulatory enforcement to keep up with that growth. Economic interests have to be balanced with the need to protect the environment.

It appears the state legislature has turned down a prime opportunity to discuss needed improvements to CAFO regulations this legislative session, a daft move given the state’s agricultural-expansion objectives. At the very least, Indiana residents need assurances that the person Gov. Daniels has charged with protecting the state’s environment is going to do his job. Easterly’s statements give the public reason for concern.

For background, see this Feb. 7th ILB entry, titled "IDEM: No enforcement on CAFOs for next 3 years," quoting from an online source, the Pork Producers' Brownfield Network. So far as I know, the Fort Wayne editorial is the first time this story has been reported in the "traditional" press.

Benzene. "There's no need to leave the area, state official says," is the reassuring headline to a story today in the Indianapolis Star, by Tammy Webber. The report begins:

Pollution emitted by a Citizens Gas & Coke Utility plant near an Eastside school raises the long-term odds that nearby residents will develop cancer, state environment officials said Thursday.

A new study by the Indiana Department of Environmental Management found that most of the risk comes from benzene. Breathing the chemical over a long period of time has been linked to leukemia and lung cancer.

The study represents the most extensive attempt in Indiana to document and assess health risks from pollution. It was prompted by concerns about potential health effects of the coke plant on children attending Indianapolis Public School 21, at 2815 English Ave., adjacent to the plant.

Posted by Marcia Oddi on Friday, February 10, 2006
Posted to Environment

Thursday, February 09, 2006

Environment - Ethanol: The last word

This is the best article I've seen on ethanol, from Tuesday's NYTimes Science Section. Don't miss the graphic: "What it takes to make fuel." Some quotes from the beginning of the article:

AMES, Iowa — The endless fields of corn in the Midwest can be distilled into endless gallons of ethanol, a clean-burning, high-octane fuel that could end any worldwide oil shortage, reduce emissions that cause global warming, and free the United States from dependence on foreign energy.

There is only one catch: Turning corn into ethanol takes energy. For every gallon that an ethanol manufacturing plant produces, it uses the equivalent of almost two-fifths of a gallon of fuel (usually natural gas), and that does not count the fuel needed to make fertilizer for the corn, run the farm machinery or truck the ethanol to market.

The use of all that fossil fuel to make ethanol substantially reduces its value as an alternative source of energy. Not that ethanol is useless. For one thing, it is far easier than natural gas to use in motor vehicles.

Production is expected to hit five billion gallons this year, equal to more than 3 percent of gasoline supplies, and more ethanol distilleries are being built. [In his State of the Union message, President Bush called for research on "cutting-edge methods of producing ethanol."]

But if ethanol is to realize its potential, its proponents recognize that they will have to develop new ways to make it without using so much natural gas — or coal, as some distilleries are doing to save money.

"In this industry, you can't take a parochial view of your business," said William A. Lee, general manager of Chippewa Valley Ethanol, in Benson, Minn., and former chairman of the Renewable Fuels Association, an ethanol trade group. "We have to be headed to a more sustainable future." Engineers are trying a variety of methods. Here are several of the most promising.

Posted by Marcia Oddi on Thursday, February 09, 2006
Posted to Environment

Environment - Batesville has problems with outdoor wood-fired boilers

If I read this story correctly, no one in Batesville has heard of IDEM's proposed ordinance to consider regulation of outdoor wood-fired boilers! Here is a list of many of the recent ILB entries on the issue.

And the ILB has no readers in Batesville!

Despite that, as this lengthy story indicates, Batesville leaders are approaching the issue in a very constructive way. Here is the story from the Batesville Herald-Tribune. Some quotes:

“It’s my property. I can do whatever I want,” some homeowners argue.

Maybe. Maybe not.

A public hearing about outdoor wood-burning furnaces was held by the Batesville Advisory Plan Commission and Batesville Board of Zoning Appeals Feb. 2 after Building Commissioner Tim Macyauski received six complaints about the devices.

At last month’s meeting he suggested an ordinance restricting or banning the furnace’s use might have to be created. * * *

Fledderman proposed asking Indiana Department of Environmental Management officials to test the level of air contaminants coming from the furnaces.

Lunsford said, “I’d be more than willing to have my stove checked … to prove it’s not polluting.” * * *

Quentin Bischoff, Southeast Boilers, Batesville, president, who sells outside furnaces, said, “I’m not able to get any (converters) right now because of the demand.” He predicted future furnaces will automatically feature the converters.

Wanstrath recommended until city officials decide on testing standards that a moratorium on new installations be announced. By consensus, members agreed.

Raver said the building commissioner should not issue any more permits for the furnaces. Macyauski noted no permits are needed. Wanstrath questioned, “If you don’t require permits now ...” Fairchild finished his sentence: “How can you stop anyone from doing it?”

The panels will ask the city council to pass a general ordinance stating any future outdoor wood-burning furnace installation will have to comply with any ordinance that will be adopted.

The president could foresee one regulating the furnaces. “Now what do we do about the ones that are already here? I think they are two separate decisions.” He advised owners, “We encourage you to be good neighbors. We are not recommending that you make dramatic modifications right now because we don’t know what the future requirements are going to be.”

Raver said BAPC and BBZA have three options: no ordinance; recommend an ordinance that prohibits them; or create an ordinance that says furnaces are allowed with certain specifications, such as lot size, distance from lot lines, height of stack or a mathematical air particle standard.

After a decision, city attorney Lynn Fledderman will draft an ordinance that will be recommended by the groups, then go to the city council for a final vote.

Raver pointed out an ordinance is needed before the issue gets out of hand. “Everyone in town could have one ... You can’t think in terms of three or four.”

BAPC member Bob Fitzpatrick agreed, “I think we’re going to have more of this type of thing as energy costs go up ... people are going to start looking for alternatives.”

Posted by Marcia Oddi on Thursday, February 09, 2006
Posted to Environment

Ind. Law - More on: Idea that landed with biggest thud of the year

"Idea that landed with biggest thud of the year" was the heading to this ILB entry from Dec. 28th on Indiana State University's proposal to create a third state law school.

With this recent history in mind, a reader directs us to this NY Times story today, headlined "Applications to Law Schools Are Declining." Some quotes:

Has law school lost its appeal? Last year, for the first time since the 1997-98 admission cycle, the number of applicants to law school declined, by 4.6 percent, and so far this year, the number has declined by 9.5 percent.

With falling numbers even among the top schools, admissions officers and career counselors say they are not sure what is causing the drop. They suggested that in an improving economy, college students may prefer jobs to law school, or that rising undergraduate debt loads have discouraged some students from borrowing still more to pay for a law degree.

Posted by Marcia Oddi on Thursday, February 09, 2006
Posted to Indiana Law

Ind. Decisions - 7th Circuit decides five today, one from Indiana

In Davis, Anthony D. v. VanNatta, John (ND Ind., Allen Sharp, Judge), a prisoner appeal, Judge Manion writes:

An Indiana jury convicted Anthony Davis of two counts of delivering cocaine. After pursuing a direct appeal and seeking collateral relief in the Indiana courts, Davis filed a petition for a writ of habeas corpus in federal court asserting, among other claims, that he was denied effective assistance of counsel. The district court denied the petition. Davis appeals.

Davis’s claims of ineffective assistance of counsel cannot succeed on the merits because the circumstances do not warrant the application of Cronic and because he fails to demonstrate prejudice. We therefore AFFIRM the district court’s denial of the petition for a writ of habeas corpus.

Posted by Marcia Oddi on Thursday, February 09, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Three Court of Appeals decisions from yesterday

In Swami, Inc. v. Robert Lee, Allen County Treasurer, et al, a 14-page opinion involving a tax sale, Judges Najam concludes:

Swami does not contend that either the auditor or Retz failed to comply with the notice requirements or any other statutory requirements in the tax sale statutes. Swami is not entitled to equitable relief because it has not demonstrated that the tax sale was unlawful and because it did not keep the auditor informed of its change of address as required by statute. Trial Rule 60(B) does not make available a substantive claim for challenging a tax deed, and Swami has not shown that Section 16 is unconstitutional. Thus, the trial court did not err when it granted Retz’s motion for summary judgment and denied Swami’s cross-motion for summary judgment regarding Swami’s challenge to the tax deed.
In Heaton & Eadie Professional Services Corp. v. Corneal Consultants of Indiana, P.C., a 15-page opinion, Judge Robb concludes:
CCI’s claims for negligence and breach of contract are controlled by the Accountancy Act’s statute of limitations. Because these claims were made beyond the one-year statute of limitations, and no basis exists upon which to toll the statute, summary judgment must be rendered against them. However, H&E’s request for summary judgment against CCI’s claims of breach of fiduciary duty and constructive fraud was properly denied because CCI has sufficiently established a dispute of fact, or conflicting inferences of fact, on those material issues in regard to an unconscionable advantage or gain accruing to H&E. For these reasons, we reverse the trial court’s ruling denying summary judgment against CCI’s claims of negligence and breach of contract, affirm the trial court’s ruling denying summary judgment on the remaining counts, and remand for further proceedings.
Juan Rivera v. State of Indiana - sentencing; affirmed.

Posted by Marcia Oddi on Thursday, February 09, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Tippecanoe County prosecutor will run again

The Lafayette Journal & Courier reports today:

Tippecanoe County prosecutor Jerry Bean this afternoon announced his intention to seek a fifth straight term leading the office he's worked in for 25 years. * * *

Bean, 51, who started as a deputy public defender in Tippecanoe County in 1980, faces his first contested election for prosecutor. Lafayette attorney Pat Harrington is challenging Bean in the May 2 Republican primary.

Posted by Marcia Oddi on Thursday, February 09, 2006
Posted to Indiana Courts

Ind. Gov't. - State enters into agreement with the U.S. Justice Department that resolves civil-rights investigations at two juvenile facilities

Ken Kusmer of the AP reports today, via the Louisville Courier Journal:

INDIANAPOLIS -- The Indiana Department of Correction is to improve special education programs at its juvenile centers under an agreement with the U.S. Justice Department that resolves civil-rights investigations at two facilities.

The state agency also must try to provide better security at the centers as part of the settlement, Commissioner J. David Donahue said yesterday.
The Justice Department's Civil Rights Division alleged last September that the state violated the civil rights of juveniles held at facilities in Logansport, South Bend and a third facility, in Plainfield, which has since been converted to hold adult inmates.

The 19-month investigation, which began in early 2004, found that the department exposed juveniles to violent attacks by other prisoners, put them at risk of suicide by taking away their antidepressants and other medications, and failed to provide sufficient special education, among other shortfalls.

The department corrected many of the problems by last fall, but Donahue said it still must improve its special-education programs to fully comply with the 20-page agreement. The document specifies that the agency provide adequate courses, teachers and programs tailored to individual offenders, as required by law, among other provisions. * * *

The agreement applies only to the Logansport Intake/Diagnostic Facility and the South Bend Juvenile Correctional Facility. But Donahue said his agency will apply its terms to each of its seven remaining juvenile centers, which yesterday held 929 youths.

The Justice Department filed the agreement in federal court in Indianapolis. It will be dismissed after no more than three years and as little as one year if the state agency makes sufficient progress in improving conditions, Donahue said.

The agreement also calls for protecting juveniles by ensuring centers have sufficient staffing, training and policies governing the use of force. Donahue said the department still needed to improve in that area, too.

Today's Indianapolis Star has a story by Tim Evans headlined "Changes ahead at juvenile prisons."

For background and links, see this ILB entry from 10/14/05 and this one from 11/17/05.

Posted by Marcia Oddi on Thursday, February 09, 2006
Posted to Indiana Government

Ind. Law - Garton: Legislators' lifetime insurance "changes" considered

A 2/7/06 story by Dave Evensen in the Columbus Republic (and the first story I've seen on the issue from the Columbus paper), available online today, headlined "Garton: Legislators' lifetime insurance changes considered," reports:

State Senate President Pro Tem Robert Garton, R-Columbus, said he is considering changes to an insurance plan that provides lifetime health insurance benefits to state senators who have served more than six years. * * *

Garton said six retired senators are under the plan, which allows them to remain covered by the state’s health insurance as if they were still employees. * * *

At Monday’s Third House, Garton acknowledged that the plan is a fringe benefit but fired back at critics of the plan.

“Why it’s being characterized as it is, I don’t know,” he said. “There are editors around the state of Indiana that have no idea” of the realities facing lawmakers.

“Most of us (legislators) carry two full-time responsibilities,” Garton said.

The law gives Garton authority to alter the five-year-old plan, and he said he will announce changes within the next two weeks.

Possible changes, he said, include bringing down premiums for retired Senate staffers so they have the same benefit as senators; adapting to changes in Medicare; and looking at the percent of premium paid.

In short, according to Garton, the current health care perks will continue in the Senate, for retired legislators and staff and those who retire in future years, with minor, if any, changes.

Note: Apparently the Columbus paper today also has an editorial headlined "Legislative health plan has black eye," but you have to be a paid subscriber to access it, meaning that the paper's editorial opinions will not resonate outside their subscription base.

[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 Thursday, February 09, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Wednesday, February 08, 2006

Law - Wine shipping in other states, more of the same

"Committee kills proposal to let wineries ship in state" is the headline to this story from the Sioux Falls, South Dakota ArgusLeader. Some quotes:

PIERRE - A bill that would have made it legal for South Dakota wineries to ship wine within the state's borders failed to make it out of a House committee Tuesday.

HB 1187, sponsored by Rep. Casey Murschel, R-Sioux Falls, would have allowed wineries that produce less than 50,000 gallons of wine per year to ship wine to people of legal drinking age in South Dakota.

"They want the opportunity to grow into the existing three-tier system," Murschel said of the farm wineries.

The bill, which was voted down 10-3 in the House Commerce Committee, would have fixed an inequity that has existed since the U.S. Supreme Court ruled last May that states could not prohibit shipments from out-of-state wineries if they allowed them from in-state wineries.

While that opened some markets for the state's 11 wineries, they were still prohibited from shipping within the state.

From the Baltimore Sun, a story headlined "Md. wineries are told to halt direct sales: Comptroller's office decision poses threat to small producers." Some quotes:
The state comptroller's office has told Maryland wineries that they can no longer sell their wines directly to restaurants and retailers - erasing their long-held legal right to bypass the middleman and threatening the survival of some producers.

A Maryland wine industry spokesman says the decision could put up to half of the state's 22 wineries out of business. Kevin Atticks, executive director of the Maryland Wineries Association, said some Maryland wineries distribute about two-thirds of their product through direct sales to stores and restaurants and would lose money if they had to deal with wholesalers.

"It's a decision that could spell the end of the farm wine industry," Atticks said. * * *

The comptroller's decision is part of the continuing legal fallout from a Supreme Court decision last year that struck down state laws forbidding direct shipment of out-of-state wines to consumers if a state permits such shipments from in-state wineries.

When the high court ruled, the initial reaction from the comptroller's office was that "the decision should not have any effect" on Maryland's $8-million-a-year wine industry.

But then a lawsuit challenged the Maryland statute that prohibits direct shipments to consumers - one of the strictest laws in the nation and one backed by the state's powerful liquor distribution lobby. The lawsuit, filed by a Maryland resident and two Pennsylvania winery owners, argued that Maryland favors in-state wineries by allowing them to bypass wholesalers while out-of-state vintners cannot.

Rather than defend the current law, the comptroller's office - under advice from the state attorney general's office - chose last week to reinterpret the meaning of the statute. Though the state had held for a quarter-century that the law allowed Maryland wineries to take their wines directly to stores, the comptroller gave the wineries 60 days - until March 31 - to find wholesalers to distribute their wines.

Posted by Marcia Oddi on Wednesday, February 08, 2006
Posted to General Law Related

Ind. Decisions - 7th Circuit issues two today, neither from Indiana

In Barnett, James v. Ameren Corp, Judge Kanne writes:

In this case we are presented with the “much-litigated issue” of retired employees’ rights to health-care benefits from a former employer. The plaintiffs are retired employees of defendant Ameren Corporation. In the district court, they argued a trial was necessary on their claim of lifetime entitlement to health benefits from Ameren and that class certification was proper. The district court denied class certification and granted summary judgment for Ameren. We affirm.
In USA v. Boscarino, Nick S., a sentencing appeal, Judge Easterbrook notes:
Boscarino’s appellate lawyer has pursued almost every contention that trial counsel raised and lost. The result is that none of the issues has been developed in depth, and strong contentions (if any) have been buried under anemic ones. “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52 (1983). We discuss only three of the contentions; the rest have been considered but are too feeble to call for exposition.
The opinion concludes:
If the national norm for first offenders who gain $275,000 or so by fraud is a sentence in the range of 33 to 41 months, then system-wide sentencing disparity will increase if Boscarino’s sentence is reduced so that it comes closer to Aulenta’s. Instead of one low sentence, there will be two low sentences. But why should one culprit receive a lower sentence than some otherwise-similar offender, just because the first is “lucky” enough to have a confederate turn state’s evidence? Yet that is Boscarino’s position, which has neither law nor logic to commend it.

Sentencing disparities are at their ebb when the Guidelines are followed, for the ranges are themselves designed to treat similar offenders similarly. That was the main goal of the Sentencing Reform Act. The more out-of-range sentences that judges impose after Booker, the more disparity there will be. A sentence within a properly ascertained range therefore cannot be treated as unreasonable by reference to §3553(a)(6). AFFIRMED

Posted by Marcia Oddi on Wednesday, February 08, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court decides two today

In Mark E. McDillon v. Northern Indiana Public Service Co., a 4-1, 8-page opinion, Justice Dickson writes:

We granted transfer in this case to address the application of Indiana Trial Rule 6(E). The Court of Appeals, reversing because of a jury instruction error, remanded for a new jury trial after applying Rule 6(E) to extend by three days the commencement of the ten-day period for filing a request for jury trial and thus rejecting a challenge to the timeliness of the defendant's jury demand. We reach the same outcome, but on grounds other than Rule 6(E). * * *

As correctly noted by the Court of Appeals, when a default judgment is set aside, to determine the due dates for subsequent pleadings, the complaint is treated as if it had been filed on the date of the order setting aside the default judgment. McDillon, 812 N.E.2d at 158 (citing Wright v. Paraservices, Inc., 726 N.E.2d 1263, 1265 (Ind. Ct. App. 2000)). Thus the period within which McDillon could properly file a jury trial demand expired on June 28, 2001, ten days after his responsive pleading was due. By mailing his written demand for jury trial by certified mail on June 28, even though it was not received by the court clerk until the following day, McDillon's jury trial request was timely filed.

While we granted transfer to clarify the application of Trial Rule 6(E), such analysis is not determinative in this case. We conclude that the trial court correctly found McDillon's jury trial demand to be timely pursuant to Trial Rule 5(F). In all other respects, the opinion of the Court of Appeals is summarily affirmed. This cause is remanded accordingly.

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

I concur in the Court’s opinion in respect of the application of Ind. Trial Rule 6(E). I re-spectfully dissent, however, from the Court’s summarily affirming the decision of the Court of Appeals that reversed the jury’s verdict in favor of the plaintiff in this case. * * *

I think this tension will create great uncertainty for plaintiffs, defendants, and trial court judges.1 For this reason, I think we should not summarily affirm the decision of the Court of Appeals on this point but instead address the merits and explain when a defendant who asserts that a person other than the defendant has caused the plaintiff’s damages is required to name that other person and when not.
1 This tension and uncertainty was predicted by a law journal student note that appeared shortly after the adoption of the Comparative Fault Act. See Peter H. Pogue, Note, The Apportionment of Fault to Unidentifiable Tortfeasors Under Indiana’s Comparative Fault Statute: What’s in a Name?, 23 Val. U. L. Rev. 413 (1989). Mr. Pogue’s prescient article even poses as a hypothetical the precise problem of this case: how to satisfy the statute’s naming requirement when the nonparty is an unidentified car thief. Id. at 441 n. 215.

In Tyrus Bryant v. State of Indiana, a 6-page opinion, Chief Justice Shepard writes:
This is one of a good many cases that were pending on direct appeal when Indiana’s criminal sentencing scheme was declared unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004), and to which that holding therefore applies. Here, the trial court enhanced a sentence based on a finding that the perpetrator “lay in wait” and on the perpetrator’s prior criminal convictions. Under Blakely, the first of these findings must be made by a jury. Uncertain about the nature of the prior convictions and whether they warrant a maximum enhancement, we grant Tyrus Bryant’s petition to transfer and remand. * * *

We reverse the sentencing enhancement and remand to the trial court for new sentencing, either through a clearer explanation of Bryant’s criminal history, or, should the State elect, through the intervention of a jury. We affirm the imposition of the consecutive sentences and the judgment otherwise.

Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., concurs in result without separate opinion.

My thoughts. Well, it would be pretty cool to have the Supreme Court pick up on your law journal note, even 17 years later!

Posted by Marcia Oddi on Wednesday, February 08, 2006
Posted to Ind. Sup.Ct. Decisions

Law - Craigslist sued over housing ad bias

"Craigslist sued over housing ad bias" is the headline to a very interesting story today in the Chicago Tribune. Some quotes from the lengthy story:

A Chicago fair housing group has sued groundbreaking Web site Craigslist for allegedly publishing discriminatory advertisements, a case that could test the legal liabilities of online ad venues.

The suit is part of an emerging attempt by housing watchdogs nationally to hold online classified sites to the same strict standards as the publishers of print classifieds, such as newspapers.

The suit is potentially significant because it suggests that the rules for an Internet site should be the same as for a traditional publisher, in which every ad should be vetted to conform with the law. But that notion contradicts the way the Internet has blossomed, where informal communities tend to police themselves and free expression is valued.

The Chicago Lawyers' Committee for Civil Rights Under Law sued San Francisco-based Craigslist, claiming that during a six-month period beginning in July, the site ran more than 100 ads in Chicago that violated the federal Fair Housing Act. * * *

Among the ads cited in the suit: "Non-women of Color NEED NOT APPLY"; "African Americans and Arabians tend to clash with me so that won't work out"; and "Requirements: Clean Godly Christian Male."

Craigslist acknowledges that completely screening its vast classified listings--which range from babysitters seeking work to people selling tickets to White Sox games--would be "physically impossible," Jim Buckmaster, Craigslist's chief executive officer, said in an e-mail interview Tuesday. * * *

The site, founded 10 years ago by computer programmer Craig Newmark, is remaking the classified-ad business.

Once a listing of services for San Francisco residents, Craigslist now covers the nation and has helped erode the print classifieds business at newspapers.

Craigslist charges employers for help-wanted listings in three cities: San Francisco, Los Angeles and New York. But the rest of its ads are free.

The privately held company, which has 19 employees, does not disclose its revenue, and estimates vary.

But one 2004 study by consultant Classified Intelligence said the Web site has cost Bay Area newspapers $50 million to $65 million in annual revenues for employment ads.

Posted by Marcia Oddi on Wednesday, February 08, 2006
Posted to General Law Related

Ind. Courts - More news on judgeships

From the Bloomington Herald-times:

Teresa "Terry" Harper has announced her candidacy for Monroe Circuit Judge, Division VIII.

As a law student and for two years afterward, Harper was the first female law clerk for then-Chief Justice Richard M. Givan of the Indiana Supreme Court.

In 1985, she became a deputy in the state public defender's office, eventually heading the direct appeal division while also representing men and women given the death sentence.

In 1995, Harper became director of training for the Indiana Public Defender Council. She moved to Bloomington in 1997 and established a private practice.

From the Indianapolis Star:
With less than two weeks remaining until the primary filing period ends, a Democrat has entered the growing list of candidates for two new judgeships in Hendricks County.

Nicholas Schmutte, a federal court attorney from Danville, joined two Republicans -- Scott Knierim and Stephenie LeMay-Luken -- in filing for judge of Hendricks Superior Court 5. * * *

The General Assembly last year created two new courts in Hendricks County to handle a growing caseload. In the other new court, Superior 4, only Republican Mark Smith, has filed so far. Smith was appointed last year as a magistrate to help the county's current judges keep up with the caseload. The position of magistrate is expected to be dissolved when the two courts open. * * *

The county is remodeling the first floor of the courthouse to accommodate one of the new courts. The other will take over the small master commissioner office and courtroom on the third floor, said County Clerk Cindy Spence.

Also from the Indianapolis Star:
Carmel City Court Judge Gail Bardach is one of three Republican candidates seeking election to a new judgeship in Hamilton County Superior Court. Bardach, city judge since 1993, said she is running for the newly created Superior Court 6 to build on her work in Carmel. * * *

Besides Bardach, other candidates for the job include Superior Court Master Commissioner Will Greenaway and Larry Sells, a Westfield resident who retires this week as a longtime deputy prosecutor in Marion County.

State legislation expanded the Hamilton County court system last year, and Superior 6 will open for criminal and civil cases in January 2007.

Posted by Marcia Oddi on Wednesday, February 08, 2006
Posted to Indiana Courts

Law - Federal judge in Cincinnati rules "Poor wrongly jailed"

The Cincinnati Enquirer reports today:

Hamilton County violated the constitutional rights of poor people for more than 20 years by sending them to jail for failing to pay minor fines, a federal judge ruled Tuesday.

Most of the poor defendants were charged with minor infractions, such as traffic violations, and at least 600 of them spent one or more nights in jail.

As many as 100 people were locked up because they owed fines of $20 or less. The decision means that Hamilton County taxpayers could be forced to pay damages in the tens of thousands of dollars.

U.S. District Judge S. Arthur Spiegel said the problem has persisted since 1982 and blamed the county's public defenders for failing to seek court hearings to determine the defendants' ability to pay the fines.

The hearings are crucial because they allow judges to declare a poor defendant indigent and waive the fine.

"These people are the last people on earth who deserve to be in jail," said Robert Newman, the Cincinnati lawyer who sued on behalf of those who were jailed. "These are the poorest of the poor. The only reason they are going to jail is they have no money."

Posted by Marcia Oddi on Wednesday, February 08, 2006
Posted to General Law Related

Ind. Courts - Judges concerned about bill language limiting decision-making power in child abuse and neglect cases

Both the Fort Wayne Journal Gazette and the Evansville Courier& Press have stories today on this issue.

Niki Kelly's Fort Wayne Journal Gazette reports:

Judges from around the state balked Tuesday at a provision in a House property tax bill they believe threatens their authority to decide what should happen to abused and neglected children.

House Bill 1001 contains a number of property tax changes but also seeks to alter funding for child welfare services, which are currently paid strictly through local property tax dollars.

The author of the legislation – Rep. Jeff Espich, R-Uniondale – addressed the Senate Tax and Fiscal Policy Committee, which is now considering the bill. He said the measure would freeze local participation for child welfare services at the current amount and the state would assume any growth.

But there is a devil in the detail. Under Espich’s plan, Department of Child Services case managers would recommend a final dispositional plan for the child, and if the judge deviates from that, any additional cost would be borne by the county budget. * * *

“That’s fiscal intimidation,” said St. Joseph County Judge Peter Nemeth. “Is that what I’m supposed to be doing, or am I supposed to be protecting that child? I think it’s a bad bill. It’s not a case of walk, don’t run. It’s a case of putting that thing in the wastebasket where it belongs.”

Supporters of the provision reminded committee members that counties now are responsible for the entire cost of helping an abused and neglected child – not just a small portion in a few cases – so the fiscal pressure judges face is already present.

Jim Payne – a former juvenile judge and current director of the Department of Child Services – said that there is too much disparity among counties in funding and that decision-making should be more uniform.

He acknowledged that some judges feel his department is still working out kinks, but noted the strides made so far and that the change wouldn’t become effective until 2007. “The judge still ultimately decides,” Payne said. “If you will hold our feet to the fire and let them know how important this is, if taxpayers do that … then we won’t get to the point where dollars are more important than children.”

From Jennifer Whitson's C&P story:
Many legislative leaders concede the current system to pay for the child welfare system does not work and want to eventually move it the state budget. But the cost for a total shift would be enormous.

So in House Bill 1001, Rep. Jeff Espich, R-Uniondale, included a provision to shift any growth of the child welfare levy, compared to a base set in 2006, to the state budget. But he also included a provision that alters the balance of power in child welfare cases.

Under the current system, the child welfare case worker, parents or other family members and a volunteer appointed to speak for the child can all make suggestions on what should happen in a case before a juvenile judge.

The judge then makes his decision and the costs are paid from the child welfare levy. Under Espich's bill, if the judge accepts any plan of action other than that offered by the state child welfare worker, the county property taxpayers would have to cover the difference in costs between the state's recommendation and the final action.

Posted by Marcia Oddi on Wednesday, February 08, 2006
Posted to Indiana Courts | Indiana Government | Indiana Law

Ind. Gov't. - More on the Indiana General Assembly's video record; concerns about the video record

Mary Beth Schneider of the Indianapolis Star has a front-page story today about cameras in the House and Senate Chambers, broadcasting each session day over the internet and, in the case of the House, archiving the video, at least for a time. Some quotes:

"Technology is quickly revolutionizing the legislative process," said House Speaker Brian C. Bosma, R-Indianapolis. "We've been able to use technology to open our doors to the public. It's the greatest open-door initiative since the adoption of the open-door law (barring secret government meetings) some 30 years ago."

The House began letting people listen in on debates via computer in 2002 and upgraded to video in 2005. The Senate joined midsession last year. The House has expanded its webcasts this year to include the House Ways and Means Committee, where budget and tax issues are debated, and is adding a room used by other committees.

Julia Vaughn, policy director of the citizens' lobbying group Common Cause/Indiana, said the only thing better would be to have the video on local cable access stations, so that people without computers also could watch. So far, she said, only a LaPorte County cable station is picking up the legislative webcast. The more the public becomes part of the democratic process, she said, the better for everyone.

Nationally, videocasts of legislative proceedings are becoming commonplace. According to a 2005 survey by the National Conference of State Legislatures, 27 other states have some form of Web or television viewing of their legislative sessions, while 12 have audio.

Last Sunday the ILB wrote in part:
The video archives of the Indiana House sessions are important Indiana historical documents. The Indiana Senate does not even maintain an archive of its session days. The House, to its credit, does, at least during the session.

But where is the archive of the 2005 House session? This was removed from the General Assembly website when this year's session began. Perhaps this historical treasure trove was summarily pitched. If not, it should again be made accessible online for the citizens of the State. And why not post them as video podcasts, so that citizens can download them and view them more easily. Many citizens do not have internet connections that permit viewing multi-hour sessions without tecnhical interference.

Today's Star story has some quotes addressing those concerns:
Bosma said rules will have to be enacted to ensure that the video archive is not altered for reasons more serious than an inappropriate joke.

But, Bosma said, the video record is not official, nor does he want to see it become so. The fear is that, if the records are kept indefinitely, lawyers and judges will pick apart lawmakers' comments, looking for an opening to challenge laws.

The House video camera, suspended above the chamber like a never-blinking black eyeball, already has resulted in one lawsuit -- the successful challenge to the traditional opening prayer in the House. The fact that the House had video through all of the 2005 session, while the Senate did not, led to the lawsuit being filed only against the House. [emphasis added]

My thoughts. There is no current requirement that these video records be created, but once they are, I would think they are public records and may not be summarily disposed of simply because someone in the future may want to review them. Under that reasoning, everyone in state government might wipe their computer disks and shred their paperwork on a weekly basis.

Posted by Marcia Oddi on Wednesday, February 08, 2006
Posted to Indiana Law

Ind. Law - More on: Wine shipping bill passes House: An example of "Be careful what you wish for"? [Updated already]

The "wine shipping" bill, HB 1190, has passed the House and is now in Senate Committee (Commerce & Transportation). The Committee is scheduled to meet today, but HB 1190 is not listed. That may be a good thing, according to an Indianapolis Star editorial today that concludes:

HB 1190 does not help consumers, aid wineries or reduce underage drinking. It's merely a wholesaler protection scheme. State senators should vote it down.
Perhaps, but would that leave the State back where we were on Nov. 27th (see this must-read ILB entry) when, as reported by the Star on that date, "Marion Superior Court Judge Thomas Carroll signed a preliminary injunction last week that allows in-state shipments through March." The injunction was necessary because Indiana's Alcoholic Beverage Commission had recently sent out a letter stating "Indiana law does not permit Indiana wineries to ship wine directly to consumers," thereby halting the long-time practice. With that in mind, read today's Star editorial.

Yesterday's Marion Chronicle Tribune had a story by Jennifer A. Wells headed: "Buying local wine could get tricky: Bill would stop direct shipping to consumers." It too deserves reading in full. The report begins:

Consumers of Indiana wineries may soon lose the option of having wine shipped directly to their homes.

A bill that passed the Indiana House of Representatives last week prohibits wineries from shipping wine directly to consumers. Instead, a complicated process, including wholesalers and local package stores, would be required.

Under the proposed legislation, consumers would order wine from a winery, which would then have a local wholesaler pick up the wine. The wholesaler would then deliver the wine to a local package liquor store, where the consumer must pick up and pay an extra fee for the wine.

A $2 handling fee would be added to the price of the wine for the distributors and another for the retailer, Oak Hill Winery Owner Rick Moulton said.

"We can't do that," he said. "We don't have the money the distributors have."

(For recent background, start with this Feb. 2nd, and this Feb. 3rd, ILB entry. Or use this link to reproduce a list of all ILB entries containing the phrase "wine shipping.")

[Updated already] The Fort Wayne Journal Gazette has this excellent and knowledgeable editorial today titled "Dump the wine bill" (although it too doesn't answer the question I posed re the Star editorial). Some quotes:

House Bill 1190 is legislation turned sour for Indiana winemakers. What started out as an effort to end confusion regarding in-state shipping of wine now threatens to shut down most of the state’s wineries.

Winery owners hoped lawmakers would pass a bill this year to explicitly protect the right to ship their product within Indiana. Wine shipments were suspended by the state last year after the U.S. Supreme Court ruled that in-state and out-of-state wineries can’t be treated differently. In November, an Indiana court issued an injunction to stop the state from enforcing the ban.

Several bills were filed to address the issue, but only HB 1190, authored by Howe Republican Marlin Stutzman, survives. To his credit, Stutzman tried to help the winery owners, but alcohol distributors, who pack a considerable political punch, intervened and had the bill rewritten to ensure they would get a piece of each sale. The amendment also took away the right for wineries to sell their product directly to retailers and restaurants.

The wineries grudgingly accepted the compromise, but the worst was yet to come. The legislation that emerged from committee had what Larry Satek, owner of Fremont’s Satek Winery, calls a “poison pill” – language that would require the state to strictly interpret Indiana alcohol law in the event of a court ruling. If a federal court ruled, for example, that it was unfair for Indiana winemakers to operate tasting rooms here if California winemakers could not, a state official sympathetic to the distributors could shut down all tasting rooms, effectively putting most Indiana wineries out of business.

“With this language, we have no degree of confidence in the business climate,” Satek said. “Who would want to invest in a business with such uncertain terms?” * * *

Sales of Indiana wines represent only 2 percent of the state’s wine sales. While they might not pack the economic punch of a massive factory hog farm, wineries are exactly the sort of small business Indiana ought to encourage. They are environmentally friendly, provide jobs and draw tourism dollars. It’s not just wine buyers, but all Hoosiers, who should let the General Assembly know this unique industry deserves the opportunity to exist and to grow.

Posted by Marcia Oddi on Wednesday, February 08, 2006
Posted to Indiana Law

Tuesday, February 07, 2006

Environment - More on: IDEM: No enforcement on CAFOs for next 3 years

Last Thursday the ILB posted this entry, quoting from the Brownfield Network (America's Ag News Source) that in turn quoted IDEM Commissioner Tom Easterly as stating:

IDEM will suspend enforcement of Confined Animal Feeding Operation (CAFO) permits until the EPA has cleared up the confusion surrounding CAFOs. This is the result of a court decision that threw out previous EPA regulations on CAFOs. “Until we know what the federal rules are, it makes no sense to enforce them,” said Easterly. He said no enforcement action will be taken for at least the next 3 years.
Today the Brownfield Network has an item headed "IDEM Commissioner clarifies position on CAFO moratorium." The Brownfield Network gives the background and then states that "On Tuesday IDEM released the following statement in an effort to clarify the situation."
A quote attributed to me in a February 2, 2006, Brownfield Agriculture Today news article has caused a significant public stir about the agency and its oversight of concentrated animal feeding operations (CAFOs). Please allow me to clarify the meaning of comments made during the Indiana Pork Producers annual meeting.

Because of proposed deadline extensions in the CAFO National Pollutant Discharge Elimination System (NPDES) rule currently being considered by the Water Pollution Control Board, IDEM will not be enforcing the original deadlines for existing farms to file storm water plans, soil conservation plans, nutrient management plans and NPDES applications. It would not make sense for IDEM compliance staff to cite farms for violating deadlines that may change. But we will continue to hold all farms accountable to protect waters of the state. No variance will be given to farms for violating water quality standards. And my staff and I will continue working to educate, guide, assist and oversee confined feeding operations, statewide. - Thomas W. Easterly

Posted by Marcia Oddi on Tuesday, February 07, 2006
Posted to Environment

Ind. Gov't. - Department of Natural Resources has settled a class action lawsuit filed in 1998 by current and former DNR employees

The DNR has issued a press release, reproduced in this Indside Indiana Business entry. The lead:

The state must pay $3 million to members of the class for retroactive wages dating back to July 1, 1996. The settlement also calls for a $400,000 aggregate salary adjustment for members of the class starting April 9.

Posted by Marcia Oddi on Tuesday, February 07, 2006
Posted to Indiana Government

Ind. Decisions - 7th Circuit issues two today, one from Indiana

USA v. Vallery, Roosevelt, a 14-page opinion, begins:

KANNE, Circuit Judge. The government appeals from the district court’s sentencing of Roosevelt Vallery as a misdemeanant following his conviction under 18 U.S.C. § 111(a). It is the government’s contention that the indictment properly alleged a felony rather than a misdemeanor. Vallery’s conviction is not in dispute. A fair reading of the statute requires us to conclude that the misdemeanor provision of § 111(a) applies to all conduct prohibited by the subsection. Having determined that Vallery’s conviction was for a misdemeanor, we affirm his twelve-month sentence.
In Hague, Mark v. Thompson Dist. (SD Ind., Richard L. Young, Judge), a 26-page opinion, Judge Manion writes:
Thompson Distribution’s owner, John Thompson, who is black, fired five white employees. Those employees, Mark Hague, Cynthia Hague, Mark Brown, Bernard Dubois, and Anna Perrey, then sued Thompson Distribution Co., alleging race discrimination in violation of 42 U.S.C. § 1981. The district court granted Thompson Distribution summary judgment. The plaintiffs appeal and we affirm. * * *

Thompson Distribution hired the five plaintiffs for a ninety-day trial period. As that period neared its end, Thompson Distribution decided that the plaintiffs were not a good fit, for a variety of reasons. The plaintiffs admit to the underlying conduct at issue, but rationalize and minimize their failures. However, this court is not a personnel director, judging the fairness of employment decisions. Rather, this is a discrimination case, and to avoid summary judgment, the plaintiffs must present evidence of pretext. They did not do so. Accordingly, the district court properly granted Thompson Distribution summary judgment on the plaintiffs’ § 1981 race discrimination claim. We AFFIRM.

Posted by Marcia Oddi on Tuesday, February 07, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals decides one today

Garland Whaley v. State of Indiana is a 29-page opinion by Judge Sharpnack that concludes:

In summary, we affirm Whaley’s convictions for dealing in cocaine as a class A felony, two counts of resisting law enforcement as class D felonies, and his status as an habitual offender, we reverse Whaley’s conviction for resisting law enforcement as a class C felony and his status as an habitual substance offender, and we remand for resentencing consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

Posted by Marcia Oddi on Tuesday, February 07, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - The impact of another Public Access Counselor ruling today [Updated]

WTHR reported this story early today and the Indianapolis Star now has a separate report on line by Lisa Renze-Rhodes. The Star's headline: "School district releases e-mails: Messages found on ex-superintendent's computer describe romantic relationship." Some quotes:

ZIONSVILLE, Ind. -- E-mails retrieved from a computer used by former schools Superintendent Howard Hull and apparently sent between him and an unidentified woman detail meetings the two shared or were planning, the physical and emotional aspects of their relationship, and mundane events like having one's car oil changed.

Copies of the messages were turned over to media after the Zionsville Community Schools Board met Monday in executive session for more than two hours. The Star had requested the e-mails after the board placed Hull on paid leave Jan. 9 because of the e-mails and unrelated sexual harassment allegations. Hull, 52, resigned Jan. 24.

School Board President Robert Wingerter said the decision to release the documents came after Karen Davis, the state's public access counselor, ruled Wednesday the e-mails should be considered a public record and therefore accessible to the public.

However, the ruling is not on the PAC site's listing of Advisory Opinions, as was the one earlier today. It may be "a written informal opinion" -- I will attempt to obtain a copy to post here.

[Updated] Thanks to the PAC, the ILB is now able to post the PAC informal response to a request for an informal opinion from the Zionsville Times Sentinel.

Posted by Marcia Oddi on Tuesday, February 07, 2006
Posted to Indiana Law

Ind. Decisions - Supreme Court defines “use” of a product under the Indiana Products Liability Act

In Vaughn v. Daniels Company, a 3-2 opinion issued today, Justice Boehm writes:

We hold that “use” of a product under the Indiana Products Liability Act does not include assembly and installation where the seller retains an obligation or arrangement with the pur-chaser to deliver a fully assembled and installed product. Because the plaintiff was injured in the process of installing the product on behalf of its supplier, he is not a consumer or user of the product that had not yet been assembled as required by the purchaser and has no claim under the PLA. For this reason, his negligence claim is not governed by the PLA. * * *

Transfer is granted. The trial court’s grant of summary judgment to Solar is affirmed. The trial court’s grant of summary judgment to Daniels on the Vaughns’ negligent design claim is reversed. Its grant of summary judgment to Daniels on the Vaughns’ other negligence claims and on Stephen Vaughn’s strict liability claim is affirmed. This case is remanded to the trial court.

Shepard, C.J., and Sullivan, J., concur.
Dickson, J., dissents with separate opinion, in which Rucker, J., concurs. [pp 17-19]

I dissent to express my strong disagreement with the Court's conclusion that a worker in-stalling a defective and unreasonably dangerous product is deprived of the right to assert a strict liability claim under the Indiana Product Liability Act, Indiana Code § 34-20-2. The plaintiff, Stephen Vaughn, should be permitted to bring this strict liability action as a "user" or "con-sumer" under the Act. * * *

I also disagree with the majority's conclusion finding Solar not liable despite the fact that Solar was charged with specific duties to provide certain railings under the Federal Mine Safety and Health Act of 1977.

For these reasons, I dissent and believe that this Court should reverse in all respects the trial court's grant of summary judgment to Daniels and Solar.

Posted by Marcia Oddi on Tuesday, February 07, 2006
Posted to Ind. Sup.Ct. Decisions

Courts - Astonishing stories of collusion between Pennsylvania's legislature and its Supreme Court; More

How Appealing today has links to articles from Pennsylvania papers on a suit filed yesterday alleging "that legislative leaders gave state money to the court system to ensure favorable rulings in two cases before the state Supreme Court."

The quote is from the lead to this story today in The Harrisburg Patriot-News. Some quotes:

A public-interest group yesterday said it had evidence that legislative leaders gave state money to the court system to ensure favorable rulings in two cases before the state Supreme Court.

Common Cause of Pennsylvania claimed lawmakers engaged in secret talks with judges relating to a 1999 law giving state money to county court administrators' offices. The allegations were unveiled in documents that Common Cause filed to expand a federal lawsuit over the July 2005 pay-raise law.

Such judicial and legislative bartering was echoed in the passage of the raises last year, said Barry Kauffman, Common Cause's executive director. Common Cause is asking a federal court to end several legislative practices that it says violate the state constitution, including maneuvers used to pass the pay-raise law.

"The courts are the last line of defense citizens have to protect themselves from abuses by the legislative and executive branches of government," Kauffman said. "If judges and justices collude with the other two branches of government ... then the representative democracy we cherish collapses."

From the Pittsburgh Post-Gazette:
A government watchdog group has accused state legislative leaders of trading funding for favorable Supreme Court rulings on issues important to legislators.

Common Cause/Pennsylvania dropped that bombshell yesterday in an expanded version of a federal lawsuit that it filed in October to block the pay raises the Legislature approved in July for itself, state judges and the governor's office. The raises were rescinded in November after a public outcry.

A spokesman for Chief Justice Ralph Cappy called the charges "preposterous" and "reckless." * * *

The federal lawsuit alleges that General Assembly leaders, together with "one or more" Supreme Court justices, "negotiated legislation desired by the court in exchange for rulings favorable to the legislative leadership on cases then pending before the court." The court filing does not name any justices.

The Common Cause lawsuit refers to actions by Justice Cappy last year, as well as actions by unnamed justices on one occasion in 1999.

The lawsuit says Justice Cappy has conceded that "he was an active participant in secret negotiations drafting Act 44 [the pay raise] and the primary architect pegging state salaries, including his own, to the salaries of designated federal officials." * * *

In its lawsuit, Common Cause claims it can establish "a kind and quality of judicial and legislative conduct and interaction [between legislators and justices] accepted as the norm in state government, but so far beyond the norms of democratic governance as to shock any observer."

The Philadelphia Inquirer reports:
The allegations were laid out in a revised federal court challenge in Harrisburg to last summer's legislative pay raise, in which Common Cause of Pennsylvania contends that there has been political "back scratching" between top House and Senate members and the state Supreme Court for years.

At the heart of the new allegations is the contention that, seven years ago, legislative leaders negotiated with the high court to fund the state's judiciary, fearing that if they did not, the justices would rule against them on two suits involving constitutional challenges.

Given that history, Common Cause alleges it is more than likely that last summer's unpopular pay raises were the result of a similar deal between Chief Justice Ralph Cappy and legislative leaders.

"What we are telling the court is that this may not be a unique instance, that this may have been going on at various levels for quite a few years," said Barry Kauffman, executive director of Common Cause. "We are asking the [federal] court to get to the bottom of it. If it is going on, it needs to be stopped and the federal courts need to put the hammer down."

Speaking on behalf of Cappy, Tom Darr, deputy court administrator of Pennsylvania, said: "It is regrettable that an organization like Common Cause, which has always stood for the principles of good government, would file such a frivolous lawsuit."

He added: "A preliminary reading shows the allegations to be preposterous, baseless and reckless and the relief sought ridiculous."

The suit provides as evidence conversations held behind closed doors between Republican members of the House in June 1999. * * *

Last summer, the suit alleges, Cappy lobbied the legislature hard to implement the pay raise, which increased legislative salaries as well as those for judges and other state officials. It was rescinded in November by a contrite legislature that had been whipped in public-opinion polls.

The state Supreme Court has agreed to hear a challenge to both the pay raise and the legislature's move to overturn it. Cappy has recused himself from hearing the case. * * *

Just last week, Perzel asked Cappy and the court for guidance in crafting a lobbying disclosure bill that would withstand legal scrutiny. [See below] * * *

The Common Cause lawsuit asks the federal court to declare unconstitutional private conversations between judges and members of the executive or legislative branches about legislation that might come before them.

Joining in the lawsuit with Common Cause are the League of Women Voters of Pennsylvania and state Rep. Greg Vitali (D., Delaware) among others. The defendants include top legislative leaders of both parties in the House and Senate, as well as Gov. Rendell and state Treasurer Robert P. Casey Jr.

Regular ILB readers may recall the many ILB entries after last year's elections, about the Pennsylvania voters' voting "no" re the retention of one Supreme Court justice up for retention and the close call of the other justice on the ballot. This was said to be a reaction by the voters to the legislature's "midnight pay raise" and the past failure of the Supreme Court to act as a check to perceived lesislative violations.

Re "asking the Supreme Court for guidance," thanks to an ILB reader, here is a story from Sunday's Inquirer reporting just that. It begins:

Signaling that the state House might act soon to adopt lobbying reform, Speaker John M. Perzel asked the state Supreme Court on Friday for guidance in crafting a law that would withstand legal scrutiny.

In doing so, Perzel (R., Phila.) is apparently removing the biggest roadblock to reform - himself - which, his critics say, has made Pennsylvania the only state without a lobbying-disclosure law.

In the letter Friday, Perzel asked Supreme Court Chief Justice Ralph Cappy for the high court's input "to assure, to every extent possible, proposed legislation is considerate of the Court's position on this matter."

The ILB will try to obtain a copy of the amended complaint filed by Common Cause.

Posted by Marcia Oddi on Tuesday, February 07, 2006
Posted to Indiana Courts

Law - Pennsylvania Appeals Court rules city agency violated the separation of church and state when it seized a woman's home to help a religious group build a private school

An AP story today in the Washington Post reports:

HARRISBURG, Pa., Feb. 6 -- A city agency violated the separation of church and state when it seized a woman's home to help a religious group build a private school in a blighted Philadelphia neighborhood, a state appeals court ruled Monday.

In a 4 to 3 ruling, the Commonwealth Court said the Philadelphia Redevelopment Authority should not have taken the property in 2003 so the Hope Partnership for Education could build a middle school.

The court said the seizure by eminent domain ran afoul of a clause in the Constitution that keeps Congress from establishing religion or preventing its free exercise. The Hope Partnership is a venture of the Society of the Holy Child Jesus and the Sisters of Mercy, two Roman Catholic religious orders.

"The evidence shows that the Hope Partnership designated the land that it wanted and requested the authority to acquire it, and the authority proceeded to do so," Judge Doris A. Smith-Ribner wrote for the majority. "This joint effort demonstrates the entanglement between church and state."

The court ruled that the authority may not take private property, then give it to a religious group for its private development purposes.

Here is a copy of the Penn. Court of Appeals opinion.

Another report comes from The Legal Intelligencer and begins:

In a case of first impression, a deeply divided Pennsylvania Commonwealth Court panel has ruled that the Redevelopment Authority of Philadelphia cannot take private property marked as blighted and give it to a private, religious organization.

In In re 1839 North Eighth Street, the court reversed Philadelphia Common Pleas Judge Matthew D. Carrafiello's overruling of Mary Smith's preliminary objections to the authority's declaration of taking of her North Philadelphia property.

The ruling rejects the notion that blighted areas may be transferred to a private developer no matter who the future developer may be, Judge Doris A. Smith-Ribner said in her opinion, adding that the taking in the case was an entanglement of church and state. "In short, nothing in the Constitution authorizes a taking of private property for a private use," Smith-Ribner said.

Posted by Marcia Oddi on Tuesday, February 07, 2006
Posted to General Law Related

Ind. Courts - Attorney: Pastrick isn't paying bills, Lawyer asks court's permission to drop client

"Pastrick isn't paying bills" is the headline to this story today by Lauri Harvey in the Munster (NW Indiana) Times. Some quotes:

The lawyer representing Kevin Pastrick in the Coffee Creek civil suit says his client owes him $40,000 and is asking a judge to allow him to back out of the case.

Michael V. Knight, a South Bend lawyer, filed a motion with the court Friday asking U.S. District Court Judge Christopher Nuechterlein to allow him to withdraw as Pastrick's attorney. * * *

"On Jan. 20, 2005, during a face-to-face meeting with Pastrick and Attorney Knight, Pastrick for the first time stated that he was not able to pay his unpaid legal bills and that he could make no further payment," Knight wrote in his motion to the court. * * *

Knight became Pastrick's attorney in July and entered an agreement to pay for his legal fees on a monthly basis. Pastrick did not make timely or monthly payments, Knight said, but always told Knight that he intended to pay for his legal services until the Jan. 20 meeting.

Pastrick's last payment came on Dec. 1. After receiving that payment, Knight said, Pastrick still owed him $29,000.

Knight said he told Pastrick the cost for defending him at his deposition -- originally scheduled for Wednesday and Thursday of this week -- would be "significant," and unless a payment on the overdue account was made, he would withdraw.

Posted by Marcia Oddi on Tuesday, February 07, 2006
Posted to Indiana Courts

Law - "After Scandal, New Rules on Lobbying in Tennessee"

"After Scandal, New Rules on Lobbying in Tennessee" is the headline to this story today in the NY Times. Some quotes:

NASHVILLE, Feb. 6 — The Tennessee Legislature passed new ethics and lobbying rules on Monday in response to an undercover F.B.I. bribery investigation that ensnared four lawmakers, including the uncle of a congressman.

Lawmakers approved the bill over last-minute protests from some legislators, who said it was too weak. Gov. Phil Bredesen, a Democrat who had twice delayed his State of the State speech while lawmakers completed the legislation, said Monday night that he would sign it.

"This is a big stone in the foundation of restoring the public's confidence," Mr. Bredesen said.

The law creates an independent ethics commission, limits most wining and dining of lawmakers, forbids lobbyists from giving directly to candidates' campaigns, limits cash contributions to $50, and requires more detailed and more frequent financial disclosures from candidates and elected officials.

Tennessee is one of many states tightening regulations on the relationship between lawmakers, lobbyists and special interests. An overhaul is also expected in Congress in response to the Jack Abramoff lobbying scandal.

The effort to adopt new ethics legislation in Tennessee began after the authorities said an F.B.I. front company called E-Cycle Management had funneled cash bribes to four lawmakers and a former state senator. The investigation, called Tennessee Waltz, also led to the indictment of two men who the authorities said arranged the payments and two county officials.

Posted by Marcia Oddi on Tuesday, February 07, 2006
Posted to General Law Related

Ind. Courts - More of the same re proposed Randolph County Courthouse demolition

"Courthouse talk resumes, but commissioners decide nothing" is the headline to a story today in the Muncie Star-Press by Joy Leiker. Some quotes:

WINCHESTER -- During the first public discussion in two months on the fate of the 129-year-old Randolph County Courthouse, elected officials renewed their split positions on the issue Monday and residents asked for a public vote.

At the same time, one commissioner reported that there are two large buildings for sale -- including a former Wal-Mart store that the county had tried to buy last year -- that could serve as temporary courthouse space. * * *

Commissioner Ron Chalfant opened the public discussion and said the intent was to "move forward with the action we've taken."

But Don Longfellow of Union City and others begged commissioners to reconsider. Longfellow suggested the courthouse issue be put on the upcoming ballot for all Randolph County voters to decide. It's uncertain whether that can be done, however. * * *

Commissioner Drew Wright, a Republican from Farmland, is up for re-election this year. He's the lone member of the three-man, all-Republican board on the ballot, and already faces two challengers -- fellow Republican Kathy Beumer, of Modoc, and Democrat Randy Bertram, of Farmland.

Wright is stern in his support of building a new courthouse, so if he doesn't win re-election, the whole issue might be up to his replacement. * * *

Wright said the county had spent $411,000 researching courthouse options, and on Monday he indicated an old, much-talked-about option -- of using a former Wal-Mart store to house courthouse offices -- is back on the table again.

The county had tried to buy the building last year, but was beat to the punch by a Kentucky developer. That developer now has offered to sell the 54,962-square-foot building at 970 E. Washington to the county for $795,000, or about $14.46 a square foot. The county's hired experts said in August that the building needed $590,000 in renovations before it would be fit for courthouse space. (At the same time Wal-Mart said it would lease the building to the county for $125,000 a year.)

Another property, the former Carter Lumber Company, is also for sale, Wright said. That price is $500,000.

Posted by Marcia Oddi on Tuesday, February 07, 2006
Posted to Indiana Courts

Ind. Courts - More judgeship announcements

The Terre Haute Tribune-Star reports:

James R. Walker, appointed last year to a one-year term as a superior court judge, announced Monday he has filed as a Republican candidate for the May Primary for judge of the new Vigo County Superior Court Division 6.

Gov. Mitch Daniels appointed Walker in November 2005 as judge of the new court for a term that began Jan. 1 and expires Dec. 31. Walker is now seeking his first full elected six-year term in that office. He filed for the office Friday.

In another story the Tribune Star reports:
Vigo County’s Democratic Party will have a race in the May primary to select a party candidate as judge for the new Vigo County Superior Court Division 6.

R. Steven Johnson, 61, and Michael J. Lewis, 42, each filed as Democrat candidates with the Indiana Secretary of State’s office last month.

Posted by Marcia Oddi on Tuesday, February 07, 2006
Posted to Indiana Courts

Ind. Gov't. - State prisoner grievances now being handled informally, without paperwor

Ken Kusmer of the AP has a story today reporting on a "new system aimed to quickly resolve state prison gripes." Some quotes:

The new grievance procedure places a greater emphasis on informally fixing problems inside the Department of Correction's more than 30 prisons and has reduced the five-step formal process to two steps.

The changes have shaved the time it takes to resolve formal complaints from more than 100 days in some cases to as few as 30 days, said Randy Koester, the chief of staff to Correction Commissioner J. David Donahue.

Speedy resolutions can be critical, considering that about one of every six grievances is health-related. The department holds about 23,000 adult and juvenile offenders, and in a typical month about one in 14 files a grievance.

Prison superintendents or their top aides now must be available to offenders in the dining halls during meals. That's a good time for inmates to approach someone who has the authority to fix a problem, Koester said. * * *

If the informal procedure doesn't fix the problem, the offender fills out a form and delivers it to the superintendent's executive assistant, whose responsibilities now include tackling grievances. If the aide can't resolve it, it goes to the department's grievance specialist, Linda VanNatta. * * *

If prisoners don't receive redress within the Department of Correction, they have one other avenue within state government. The Indiana Ombudsman Bureau, which is free of department oversight, receives about 15 letters per day with prisoners' complaints, said Charlene Burkett, director of the bureau since May.

Posted by Marcia Oddi on Tuesday, February 07, 2006
Posted to Indiana Government

Ind. Law - Challenge to $1-per-page fee for printouts of county recorder's digital records

"Recorders seek changes in law" is the headline to a story today in the Louisville Courier Journal by Alex Davis. The story begins:

A group that represents Indiana's 92 county recorders is pushing for changes in a state law after a New Albany businessman's claim that some fees being charged are illegal.

Christopher Mason of Southern Indiana Abstract Co. filed a complaint about the fees Dec. 1 with the Indiana Public Access Counselor, who deals with questions about open-records matters.

The complaint focuses on Clark County, and Mason contends that there is no state law to support a $1-per-page fee for printouts of digital records.

Those printouts now make up the bulk of the county's $80,000 in annual copying revenue. But Indiana's law describing the fees refers only to documents produced by a "photographic process" -- and not by modern computer printers.

Clark County Recorder Shirley Nolot said she temporarily suspended the $1 fee after a Jan. 3 opinion by the public access counselor that validated parts of Mason's complaint.

Although the opinion is advisory, it is being taken seriously by the Indiana Recorder's Association. Terri Rethlake, the group's vice president, said the association is working through a lobbyist to have the General Assembly pass legislation that would update the law that covers recorders' fees.

Mason is exploiting a "loophole" in the current law, Rethlake said, and it eventually could put at risk hundreds of thousands of dollars in fee revenue collected statewide.

Apparently no office staff is involved in making these printouts, the customers look up the items on the recorders computers and then print them out. The charge is for the number of pages printed:
Nolot said Mason's complaint came after she had a counting machine installed on the printers in her office late last year. Before the counters were introduced, she said she operated on an honor system under which customers simply paid her what they felt they owed. * * *

Leah Poindexter, part owner of SouthEastern Indiana Title Co. in Jeffersonville, said she believes the fees charged by recorders are unfair because the money is used to subsidize government operations that are unrelated to the cost of the documents.

"The library is 10 cents a copy," said Poindexter, whose firm runs about $200 a month in copies in Clark County alone. "Why am I paying for the salary of the employees up there, where I'm doing the work myself?"

Here is the January 3, 2006 opinion of the Public Access Counselor.

A check of the current cite list shows there are no 2006 bills amending IC 36-2-7-10 or 36-2-11-16.

On another matter. I noticed, when looking on the Public Access Counselor's website, that there appear to be no 2006 PAC Opinions. However, if you look at the 2005 list, you will find that "05-FC-243; Alleged Violation of the Access to Public Records Act by the Clark County Recorder's Office," the opinion at issue here, is dated Jan. 3, 2006, and is the first 0f currently 21 opinions that have been issued thus far in 2006. As to why each is numbered beginning with "05-", my guess would be that it is because the complaint was filed in 2005.

Posted by Marcia Oddi on Tuesday, February 07, 2006
Posted to Indiana Law

Monday, February 06, 2006

Ind. Courts - Several announcements about trial court judges; Hamilton County prosecutors want raise

From the Decatur Daily Democrat:

Adams Circuit Court Judge Fred A. Schurger, who has held that position since August 2, 1999, has announced that he will seek another six-year term, beginning with the Democratic primary election on May 2.

Judge Schurger, 59, was named to the post by former Indiana governor Frank O’Bannon, replacing Judge Lorren Caffee, who moved to an island in the Caribbean Sea to open a legal practice.

From the Rushville Republican:
Rush Superior Court Judge David Northam recently filed his declaration of candidacy for the office of Judge of the Circuit Court. * * *

Northam was elected Rush County Court Judge in 1996, and spearheaded efforts to convert County Court to Superior Court.

"Prosecutors want pay boost" is the headline to a story in the Noblesville Ledger:
NOBLESVILLE -- The county's deputy prosecutors told the county council Wednesday night that they need a pay raise to keep good people from leaving the office for higher-paying jobs. * * *

Prosecutor Sonia Leerkamp hopes the council approves the pay increase, because she has been losing deputy prosecutors.

"It was very brave of them to want to step up and say this a serious problem," she said. "They wanted the council to see the faces of the employees it has affected the most."

Leerkamp's position pays $110,500, but the state pays most of that. Hamilton County paid her $5,000 in 2005.

She said deputy prosecutors who work felonies in other Indiana counties make $55,000-$70,000 and ones who handle misdemeanor cases make $45,000-$50,000. By comparison, she said her entry-level misdemeanor positions pay $37,000-$40,000.

She promotes from within, saying it encourages deputy prosecutors to stay. She said the county council usually grants $1,500-$2,000 raises to those promoted.

Leerkamp noted some deputy prosecutors with more experience make more money, but those aren't the norm. In 2005 chief deputy prosecutor Jeffrey Wehmueller made $75,808 and deputy prosecutor Gary Lamey made $78,290. A second chief deputy prosecutor, Barbara Trathen, was paid $87,875 -- $5,000 from the county and the rest from the state.

Posted by Marcia Oddi on Monday, February 06, 2006
Posted to Indiana Courts

Ind. Courts - Jackson County judges issue judicial mandate

The Jackson County TribTown reports today on the county's fiscal problems. Near the end of the story is this:

The plan also gives an incentive of $5,000 to Circuit Court Judge Bill Vance and Prosecutor Stephen Pierson to try to reduce their budgets by 30 percent by the Feb. 15 meeting. The $5,000 is their county paid salary, and council members voted earlier to eliminate the $5,000 pay for new Jackson Superior Court Judge Bruce Markel.

On Friday, however, Markel and Vance issued a mandate that requires the council and the county auditor to show cause for why they cannot pay to maintain the work hours and rate of pay for court personnel as well as the clerical support staff for the probation department. A mandate can be challenged in court, but the council will have to pay attorney fees for itself as well as for the courts.

Posted by Marcia Oddi on Monday, February 06, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues four today, none from Indiana

USA v. Browning, Lashon - this is an interesting, and brief, sentencing decision by Judge Posner.

USA v. Gokey, Charles B. - another sentencing decsion: "Gokey appeals, arguing that he must be resentenced because, under Booker, the Guidelines are still advisory, and therefore the district court erred in disregarding the Guidelines entirely. We agree and therefore remand for resentencing."

Semien, Kathleen v. Life Insur Co - a 19-page opinion: "The district court denied Semien’s motion to compel discovery and granted summary judgment in favor of the defendants. Semien appeals the district court’s denial of her discovery requests as well as the district court’s grant of summary judgment to LINA." Affirmed.

ASARCO Incorporated v. J.P. Morgan (In re: Copper Antitrust Litigation) - a 41-page, 2-1 opinion.

Posted by Marcia Oddi on Monday, February 06, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals decides five today; some commentary

Carl L. Banks v. State of Indiana - sentencing, affirmed.

In Charles Powell v. State of Indiana, Judge Sullivan writes:

Appellant, Charles Powell, brings this interlocutory appeal challenging the trial court’s denial of his motion to suppress. Upon appeal, Powell presents one issue for our review: whether an anonymous caller’s tip established the reasonable suspicion necessary to justify an investigatory stop under the Fourth Amendment of the United States Constitution. We reverse.
In Cash in a Flash, Inc. v. Glen Hoffman, the first of three treble-damages cases decided today, Judge Riley writes:
Appellant-Plaintiff, Cash in a Flash (CIF), appeals the trial court’s judgment finding that Ind. Code § 24-4.5-7-409(2) requires plaintiffs to prove common law fraud in order to seek treble damages and attorney’s fees under I.C. §§ 26-2-7 and 34-24-3. We affirm. * * *

I.C. § 24-4.5-7-409(2) clearly states that I.C. §§ 26-2-7 and 34-24-3 apply only when a check or an authorization to debit a borrower’s account is used to defraud another person. Although our legislature did not include the elements necessary to prove fraud, a definition, or a reference to the fraud statute, we can look to common law for guidance. To successfully sustain an action for common law fraud, a party must prove five essential elements: (1) a material misrepresentation, (2) of past or existing facts, (3) the falsity of the representation, (4) the representation was made with knowledge or reckless ignorance of its falsity, (5) and detrimental reliance on the representation. AutoXchange.com, Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 51 (Ind. Ct. App. 2004). Accordingly, we hold that I.C. § 24-4.5-7-409(2) requires a plaintiff to prove common law fraud in order to seek the damages and penalties available under I.C. §§ 26-2-7 and 34-24-3.[4] * * *
[4]We must note that it would seem redundant to require a plaintiff to prove common law fraud in order to seek treble damages and attorney’s fees pursuant to I.C. § 34-24-3-1 if they have sustained the burden of proving fraud on a financial institution under I.C. § 35-43-5-8. Thus, as in this case, if a plaintiff proves fraud on a financial institution under I.C. § 35-43-5-8, the trial court has discretion to award treble damages and attorney’s fees pursuant to I.C. § 34-24-3-1 without requiring the plaintiff to prove the elements of common law fraud.

In Payday Today, Inc. v. Princess McCullough & Henry McCullough, Judge Riley writes:
Appellant-Plaintiff, Payday Today, Inc. (Payday), appeals the trial court’s denial of their claim for treble damages against Appellees-Defendants, Henry McCullough (Henry) and Princess McCullough (Princess), (collectively, the McCullough’s). * * *

Based on the foregoing, we find (1) that the trial court did not err in denying Payday’s claim for treble damages, and (2) the trial court erred in awarding Payday attorney’s fees and interest pursuant to I.C. § 26-2-7 et seq. Affirmed in part and reversed in part.

In Michael Neidow v. Cash in a Flash, Inc., Judge Riley writes:
Appellant-Defendant, Michael Neidow (Neidow), appeals the trial court’s judgment awarding Appellee-Plaintiff, Cash in a Flash, Inc. (CIF), treble damages and attorney’s fees pursuant to Ind. Code § 26-2-7 et seq. The DFI filed an Amicus Curiae Brief in support of Neidow. We reverse and remand.

Neidow raises one issue, which we restate as: Whether the trial court erred in awarding CIF treble damages and attorney’s fees pursuant to Ind. Code § 26-2-7 et seq. * * *

Based on the foregoing, we conclude that the trial court erred in awarding CIF treble damages and attorney’s fees. Additionally, the trial court’s judgment should be modified to reflect a judgment in favor of CIF and against Neidow for the following: $200.00 loan, $25.00 finance charge, returned check fee, and court costs. Reversed and remanded with instructions to modify the judgment accordingly.

Comments on the Court's opinion in Niedow. There is language on p. 9 of Neidow that I cannot let pass without some remarks. The language is:
Here, the record clearly reveals, and CIF admits in their brief, that they could not prove that Neidow intended to defraud them. CIF argues, however, that the list of remedies provided in I.C. § 24-4.5-7-409(2) is not exclusive. Therefore, CIF maintains that they can seek treble damages and attorney’s fees against Neidow for breach of contract as a result of his bad check under I.C. § 26-2-7 et seq. without first proving fraud. In support of their argument, CIF directs us to Burns Indiana Statutes Annotated version of I.C. § 24-4.5-7-409, where the title of the section reads “Applicability of other statutory provisions – Penalty for violations of chapter – Equitable relief – Remedies not exclusive.” However, the official version of I.C. § 24-4.5-7-409 on www.in.gov lists the title of section 409 as, “Restrictions, penalties, and enforcement.” Regardless of the title, the text of section 409 is the same and there is no language indicating that the remedies provided under the statute are non-exclusive to the lender.
My comments. Burns is, of course, a private publication and its section headings are written by a Burns' editor. I also believe they are copyrighted by the Burns' publisher. They certainly are not a part of the law adopted by the General Assembly.

And neither are the brief headings added to what the Court terms "the official version of" IC 24-4.5-7-409 on the General Assembly's website. As provided in IC 1-1-1-5(f):

(f) The headings of titles, articles, and chapters as they appear in the Indiana Code, as originally enacted or added by amendment, are not part of the law and may be altered by the lawful compilers, in any official publication, to more clearly indicate content. These descriptive headings are intended for organizational purposes only and are not intended to affect the meaning, application or construction of the statute they precede.
The makeup of the Ind. Code is Title > Article > Chapter > Section. Section headings are not mentioned in IC 1-1-1-5(f) because there are no section headings in bills passed by the General Assembly. Whenever you see section headings, in Burns or West or online, they have been added by an editor and have no official standing.

From the LSA Bill Drafting Manual, Chapter 3, G(2):

Section headings, which do become a part of the law, are not to be used in bills, even when a new section is being added to a chapter that has sections with existing headings. Furthermore, when an existing section that contains a heading is amended, the heading should be stricken, even in uniform laws.

Posted by Marcia Oddi on Monday, February 06, 2006
Posted to Ind. App.Ct. Decisions

Law - Supreme Court quiz

Here is a quiz the Louisville Courier Journal gave to people on the streets of Louisville:

1. Do you know who the chief justice of the United States Supreme Court is?
2. Do you know how long the term of a Supreme Court justice is?
3. Do you know what body confirms a president's nomination to the Supreme Court?
4. Do you know who President Bush's newest nominee is for the Supreme Court?
5. How many justices are on the U.S. Supreme Court?
6. Name them.
7. Do you know how many women are currently on the U.S. Supreme Court?
8. Do you know what justice has recently announced their retirement from the Supreme Court?
9. Do you know how many Americans have served on the U.S. Supreme Court?
For the answers (do you need them?) and the story, go here.

[Note: This quiz was given just before the Senate confirmed Samuel Alito's appointment to the Supreme Court, so you may need to rethink your answers.]

Posted by Marcia Oddi on Monday, February 06, 2006
Posted to General Law Related

Environment - How Clean is Clean in New Jersey?

"Finding the Bottom of a Polluted Field" is the headline to fascinating and very long story in the Sunday NY Times about "one of the nation's biggest hazardous waste sites, one that spurred an environmental battle so contentious that it has dragged on for a generation." Some quotes:

But there also is a broader question at stake, one that old industrial cities across the country have grappled with: Must every last bit of contamination be removed, at great expense, before land can be reused? Or can pollution just be covered over so blighted neighborhoods can be redeveloped more quickly?

Most cities and states, including New York and New Jersey, have adopted what are called brownfield laws, which allow certain types of pollution to be left in place and capped. Developers, protected from future liability by these laws, have opened up vast stretches of urban wasteland to new construction.

For their part, environmentalists say they have a "preference for permanence," meaning that they would rather see pollution completely removed, especially if housing is going to be built there.

The cleanup question is particularly important in Jersey City, which for years was one of the world's biggest processors of chromium ore. Millions of tons of residue from three plants were used to fill in wetlands and construction sites all over the city and in nearby towns. Besides forming the former drive-in's foundation, the hazardous material lies beneath stores, houses, schools, even the municipal incinerator. * * *

For every pound of chromium ore Mutual processed, it created two pounds of slag, which it just dumped on the banks of the Hackensack River, eventually creating a chromium waste field covering more than 30 acres. The slag also became fill in other parts of Jersey City. * * *

Nothing has changed Honeywell's position that capping would take care of the contamination and the instability problem, not even a landmark federal court decision in the Interfaith case in 2003. In the ruling, the judge found that the way the chromium wastes heaved made capping impossible, because any cap would eventually be breached, exposing the contamination. The only way to make the site safe for redevelopment, the judge ruled, was to get rid of all one and a half million tons of the wastes, an undertaking expected to cost more than over $400 million. * * *

Honeywell appealed, arguing that the court should not have taken the case because the company had already reached an agreement with the New Jersey Department of Environmental Protection. But the appeals court determined that the state agency was incapable of dealing with "Honeywell and its tactics," and upheld the earlier court's finding.

Posted by Marcia Oddi on Monday, February 06, 2006
Posted to Environment

Law - Bill would allow veil of secrecy for juvenile jails in Kentucky

A story in the Dec. 8, 2005 Louisville Courier Journal (see ILB entry here) reported:

Kentucky still prosecutes juveniles behind closed doors, then locks away their records.

The result: Nobody knows whether a dangerous juvenile is in their midst, or whether Kentucky is getting its money's worth for the tens of millions of dollars it spends on prosecution, treatment and rehabilitation of young offenders.

Kentucky shrouds its juvenile courts behind some of the strictest secrecy laws in the nation, requiring the public to accept on faith that it is being protected from dangerous children -- and that innocent children are being protected from dangerous adults.

The story was part of a continuing series pointing out the problems with the Kentucky juvenile justice system. Sunday the LCJ reported, in a story by Deborah Yetter, that Kentucky juvenile justice officials were supporting moves in the opposite direction - for more secrecy. Some quotes:
FRANKFORT, Ky. -- Juvenile justice officials are pushing a bill that would give them broad power to keep records secret at the state's 12 centers that house youths found guilty of crimes.

It also would allow the state Juvenile Justice Department to develop regulations and policies in secret and would require state lawmakers who review them to hold closed hearings. * * *

The public review of records from juvenile facilities has led to reforms in the past.

In 1995, Kentucky's juvenile justice system was placed under federal supervision for five years after the U.S. Justice Department determined that conditions violated youths' civil rights. The supervision ended in January 2001 after officials determined that Kentucky had made the required changes.

The federal investigation began after The Courier-Journal obtained records from juvenile centers detailing allegations of abuse, lack of psychological treatment and youths' being locked in isolation cells for days.

In 2004, state officials moved to correct problems at the state's only center for girls, in Morehead, after The Courier-Journal reported allegations of sexual abuse of residents and other mistreatment, based in part on agency records.

Brandi Winebrenner, 21, of Henderson, Ky., a former resident at Morehead, said she strongly objects to efforts to restrict access to records.

"That's just crazy," said Winebrenner, who spent 11 months at Morehead in 2002. "How can they say they want to protect the children when they want to hide what they are doing?"

Posted by Marcia Oddi on Monday, February 06, 2006
Posted to General Law Related

Ind. Decisions - Court of Appeals Hears Case at Wabash College

Last Thursday, Feb. 2, a panel of the Indiana Court of Appeals heard oral arguments in the case of Jeffrey D. Puckett v. State of Indiana at Wabash College in Crawfordsville. Here is the Court's synopsis of the case:

Puckett appeals his conviction of (1) operating a vehicle while intoxicated, (2) operating a vehicle while intoxicated with a prior conviction, (3) operating a vehicle after having been adjudicated an habitual traffic violator, and (4) being an habitual offender. The oral argument will discuss whether Puckett was left without counsel at a critical stage in the proceeding (immediately before sentencing), thus violating his Sixth Amendment right to counsel. Additionally, the oral argument will address whether the trial court properly sentenced Puckett, particularly in light of Indiana's habitual offender statute. The Scheduled Panel Members are Chief Judge Kirsch, Judges Riley and Robb.
Coverage of the event can be found on the Wabash College website, in a story by Howard W. Hewitt, complete with photos. Some quotes:
Wabash students had the chance Thursday to witness an Indiana Appeals Court hearing which involved a dispute on Indiana’s Habitual Offender Law. They not only witnessed the court proceeding, but in the Chief Judge’s words saw something "rather extraordinary" when the attorney representing the state made an admission the law had been applied incorrectly by the trial court. * * *

The court heard the case of Puckett v. State, which involved questions of the sentencing procedure. At issue was the application of Indiana’s habitual offender statute for traffic violators (relating to operating a motor vehicle while intoxicated) in determining sentencing and whether or not the defendant, who was left without counsel at the time of sentencing, experienced a violation of his Sixth Amendment right to counsel.

After the Greenwood lawyer representing the appeals case made his argument, the Attorney General’s lawyer representing the state opened his remarks by saying the office is most "responsible for seeing justice is done."

The attorney then admitted the application of the habitual offender sentence was not proper in this case. At the conclusion of the hearing, Judge Kirsch commended the defense attorney and particularly the state’s attorney for their presentation. Kirsch then made a point to the students they had actually witnessed something rather extraordinary.

A question and answer period followed, but no question applying to the hearing were permitted.

Posted by Marcia Oddi on Monday, February 06, 2006
Posted to Ind. App.Ct. Decisions

Sunday, February 05, 2006

Ind. Law - More on proposed telecommunications overhaul

Today's Fort Wayne Journal Gazette has a good column by Tracy Warner headed "Telecom on trial." It is billed as a "a guide to the telecom proposal." Access it here.

WFYI's Indiana Lawyers also had a good program (the fifth episode) on telecommunications this weekend. Access it here - you can watch the streaming video, but perhaps not until tomorrow - today last weekend's program on education is featured.

Here is a listing of earlier ILB telecommunications entries.

Finally, whenever I hear about telecommunications I can't help but think back to the year 2000, when telephone service in Indiana was a scandal. It took weeks to get repair service or a new phone installed. The news was filled with horror stories. I've looked back in the Indianapolis Star archives for 2000 and got back 25 articles by using the phrase "poor telephone service". Here are some of the descriptions:

1. Ameritech snafus hurt efforts to deregulate
October 29, 2000 •• 1034 words •• ID: ind42891382

The recent firestorm over service problems at Ameritech Indiana has claimed a casualty that has nothing to do with telephones. Deregulation of the state's electric utilities has gone from being a back-burner issue for the Indiana General Assembly to being a no-burner issue. Electric deregulation already faced a tough path. Prices are rising for gasoline and natural gas, so few politicians are eager to deregulate the electric industry for fear that it might affect the cost of [BUY]

2. Majority in poll want state to get tough on utilities
November 6, 2000 •• 970 words •• ID: ind43022052

Indiana voters, stung by some of the worst local telephone service in the nation, say state regulators need more power to punish utilities for poor performance, a new poll for The Indianapolis Star and WTHR (Channel 13) shows. Fifty-eight percent of 600 people interviewed last week want the state to step up oversight when utilities fail consumers. The poll question was prompted by a meltdown in telephone service in the past few months from Ameritech Indiana, the largest telephone utility in [BUY]

3. Critics say pact lets Ameritech off too easy
September 10, 2000 •• 1324 words •• ID: ind42041075

State regulators say oversight of telephone giant Ameritech Indiana needs to be repaired -- just like Ameritech's ailing residential service. The question now is whether a proposed revamping -- one signed off on by Ameritech and the state's utility consumer counselor -- goes far enough. Very few Hoosier policy-makers are demanding major overhauls just yet. But Ameritech may be forced to put up or shut up when it comes to service. Failing to respond could mean [BUY]

4. Ameritech's plan troubles commission
September 22, 2000 •• 896 words •• ID: ind42243704

Ameritech Indiana's plan to solve massive telephone service problems isn't good enough, state regulators said Thursday. The plan filed Wednesday will take too long and isn't complete, according to the Indiana Utility Regulatory Commission. Ameritech, Indiana's largest local telephone service provider, told the commission Wednesday that it would restore service to acceptable levels by March 31, 2001, by hiring more workers and deploying them [BUY]

5. States unite in phone firm fight
September 28, 2000 •• 1139 words •• ID: ind42348417

Indiana and four other Midwestern states served by Ameritech Corp. are joining forces to pressure the company to address massive telephone-service problems. Friday morning in Chicago, the heads of the utility regulatory commissions of Indiana, Illinois, Michigan, Ohio and Wisconsin will gather to compare notes and discuss strategies for dealing with Ameritech, the largest provider of local phone service in the five states. "At a minimum, it's a show of unity that [BUY]

6. Wrong number
September 5, 2000 •• 605 words •• ID: ind41957368

Ameritech's customer service in Indiana is atrocious. The Federal Communications Commission found that Ameritech took longer to repair phone lines than any other major telephone company in the nation last year. A Star story last week revealed that service was lost to some homes in one Hamilton County neighborhood for as long as two weeks. "I've called Ameritech every day since a week ago this past Sunday, and every day they tell me it's [BUY]

Posted by Marcia Oddi on Sunday, February 05, 2006
Posted to Indiana Government | Indiana Law

Ind. Gov't. - Two columnists today focus on House video record; concerns about the video record

Lesley Stedman Weidenbener of the Louisville Courier Journal has a column today headlined "Contentious General Assembly debates a sign of democracy in action" featuring debates available via the House video archive. Some quotes:

[T]his year, particularly in the House, it's been hard to go even a few hours without a contentious debate filled with sometimes fascinating, sometimes exhausting give-and-take of ideas.

That's in part because it's an election year and Republicans control the House by a mere two-seat majority. So it will be a bitter battle in a dozen or so competitive districts as each side tries to win control for 2007 and 2008.

During the session, the parties are trying to position themselves with arguments, policies and proposals they believe will help them or hurt the other party in the election.

That's led to some contentious debate in the House that sometimes crosses what legislative leaders believe is an invisible (and ever-moving) line of decorum.

But this year's robust debate also is about the issues at hand.

Re the toll road leasing bill and several other bills:
Republicans like it. Democrats are suspect. And last week, the resulting debate -- while sometimes political -- also was the kind of clash of ideas that are hallmarks of democracy.

It lasted four hours. More than one-third of the chamber's 100 members spoke. And it was frustrating for some because the outcome of the bill was essentially predetermined. It seems nobody changed anyone's minds during the discussion.

But those who were listening -- whether in person or on the Internet -- could have learned a lot about the philosophies of the lawmakers debating the bill.

You can go back and listen to it -- or just parts of it -- at www.in.gov/legislative. Click on "Watch the General Assembly" and then on "House Video Archive." Then click on "February 1."

Perhaps most notable among the speakers was the bill's sponsor, Rep. Randy Borror, R-Fort Wayne, who explained the basics of the bill and talked about what he considered "fallacies" of the opponents. He starts talking about 7 1/2 minutes into the session day.

Later, there were passionate speeches by a number of lawmakers, including Rep. Jackie Walorski, R-Lakeville, and Rep. Scott Pelath, D-Michigan City. And there's a classic give –and take between Borror and Rep. Win Moses, D-Fort Wayne, which appears about an hour and nine minutes into the second audio file.

Also last week, lawmakers debated two controversial abortion bills as well as divisive legislation about education issues.

But the most passionate debate this year came on a bill that would have prevented illegal immigrants from receiving any state social services. There were a number of good speeches on that debate, which can be found near the end of the audio file for "February 2."

The most stirring came from Rep. Mike Murphy, R-Indianapolis, who talked about fairness and the Constitution. But it was silent in the chamber as he quoted the Bible.

The standing ovation from lawmakers -- Republicans and Democrats, those who voted for and against the bill -- was long and loud. The bill was defeated.

I've highlighted the use of "time-markers" in the LCJ story, and in the following quotes.

The Fort Wayne Journal Gazette today, in a column covering a number of different items, also uses a "time-marker." Under the heading "Smackdown hits nerve", the column reports that Rep. Win Moses (D- Fort Wayne) aggressively questioned Rep. Randy Borror, R-Fort Wayne on the toll road bill:

House Speaker Brian Bosma also took note of the uncomfortable exchange between the two. When a similar situation arose the next day between two other lawmakers, Bosma stopped it.

“It’s not a deposition. It’s not a cross-examination,” he said. “We’ve been very lenient yesterday and today. Yesterday got a little out of hand.”

Moses added that he holds nothing personal against Borror, and he tried to lighten the mood the next day when Borror came up for another bill.

Moses walked to the front of the chamber where members mumbled under their breaths that he might go after Borror again. Instead, he congratulated Borror on a good bill and said the other lawmakers should pass it, a comment met with loud cheering and clapping.

To see the heated 15-minute debate between Moses and Borror, go to www.in.gov/legislative and hit the link on the right side of the page to watch the General Assembly. Once there, go to the House video archive – Feb. 1, Part 2 – and fast-forward to 1:09 minutes.

Concerns. One concern is illustrated in the following, also from today's Fort Wayne Journal Gazette column:
Allowing Hoosiers to watch the House floor debate via the Internet has been a welcome move forward into the 21st century. But what happens when a member goes too far?

House Speaker Brian Bosma was faced with that situation last week when one Republican member during debate on a bill made an inside joke about another GOP lawmaker that was construed by many to be an allegation of marital infidelity. And he did so knowing the other man’s wife was watching the proceedings on the Internet.

Bosma immediately chastised the member, who later gave a quick apology. But the damage was done.

The question then became, what do they do about the joke on the Internet archive? In the end, Bosma and House Democratic Leader Pat Bauer agreed on a motion to allow the lawmaker to withdraw his comments from the permanent record, which includes the Internet. By the next morning, the online video had been spliced in a way that cut out the comment.

Everyone seemed to agree on removing this particular item, but there are no rules written into House procedure on the issue. So what happens if a member simply embarrasses himself and wants to remove that?

Those are questions Bosma is struggling with. “This is the first time we had to deal with this issue, and we had to make some hasty decisions, maybe I should say prompt decisions, on the matter,” he said. “We are at least setting some temporary precedent until our rules can be expanded to cover this issue.”

Bosma also promised he would never unilaterally alter the video record and hopes future Speakers would not as well.

One question is - is there a record of the motion? Is the motion in the video archive? Is the motion in the House Journals? Or was history erased, without a trace?

More questions. The video archives of the Indiana House sessions are important Indiana historical documents. The Indiana Senate does not even maintain an archive of its session days. The House, to its credit, does, at least during the session.

But where is the archive of the 2005 House session? This was removed from the General Assembly website when this year's session began. Perhaps this historical treasure trove was summarily pitched. If not, it should again be made accessible online for the citizens of the State. And why not post them as video podcasts, so that citizens can download them and view them more easily. Many citizens do not have internet connections that permit viewing multi-hour sessions without tecnhical interference.

Thoughts. It is time for the General Assembly to move into the 21st century. Rep. Bosma has made a good start. But why leave the way our General Assembly's history is recorded and maintained up to the judgment of each individual House and Senate leader? Put it in law.

There is a law, found at IC 2-5-1.1-12.1, and 13 through 16. It is a hesitant first step. Parts of it are troubling. For instance, Section 13(d) seems to say that it was alright for the Louisville Courier Journal and Fort Wayne Journal Gazette to do what they did today -- to point to sections of the video archive, without obtaining prior approval from the General Assembly. But I have read it three times and I'm still not sure the law allows it, although I know the Constitution does.

Posted by Marcia Oddi on Sunday, February 05, 2006
Posted to Indiana Government | Indiana Law

Saturday, February 04, 2006

Ind. Courts - St. Joe and Marion County prosecutor's races

"Dvorak files for re-election as prosecutor" is the headline to this story in the South Bend Tribune. Some quotes from the story by Marti Goodlad Heline:

SOUTH BEND -- Surrounded by his family and supporters, St. Joseph County Prosecutor Michael Dvorak filed the paperwork Friday to seek a second term. * * *

Dvorak, a Democrat, signed his name with his wife, Kathy, at his side. She is the deputy prosecutor who runs the child support division of prosecutor's office.

Dvorak, a state legislator for 16 years and a former defense attorney, received two rounds of applause from a boisterous group that included seven of his eight children, office staff, police, county and city officials, neighbors and campaign workers.

"Ex-Peterson aide enters race for prosecutor's job" is the headline to a three-sentence story in Thursday's Indianapolis Star:
Flanked by Marion County Sheriff Frank Anderson and Indianapolis Mayor Bart Peterson, Democrat Melina Kennedy declared her candidacy for Marion County prosecutor Wednesday. The former Peterson aide said she wants to help curb increases in armed robbery and other violent crimes. Kennedy resigned her position with the city in September to challenge Republican incumbent Carl Brizzi, who's seeking a second four-year term.

Posted by Marcia Oddi on Saturday, February 04, 2006
Posted to Indiana Courts

Law - More on: Kansas Supreme Court rules in favor of privacy of abortion patients

Updating yesterday's ILB entry (access it here or scroll down to the next entry), the NY Times reports today, in a story headlined "Kansas' Top Court Limits Abortion Record Search":

WICHITA, Kan., Feb. 3 — The Kansas Supreme Court restricted on Friday an unusual and divisive investigation by Attorney General Phill Kline into illegal abortions and child rape, ruling that the names and personal information of 90 women and girls must be removed from the records he is seeking from two abortion clinics.

While granting most of the clinics' requests in a lawsuit seeking to keep the records private, the court did not prevent Mr. Kline from obtaining the records, leaving that decision to a lower court judge.

Before turning over the records, however, that judge must re-evaluate whether Mr. Kline has sound legal reasons for seeking the records, the court ruled, and must eliminate from them information unrelated to possible violations of the state's laws on late-term abortions and reporting of child abuse.

"The type of information sought by the state here could hardly be more sensitive, or the potential harm to patient privacy posed by disclosure more substantial," Justice Carol A. Beier wrote for the court. "If inquisition subpoenas for documents related to abortions are not handled sensitively, the fundamental rights of women who may seek abortions in the future could be substantially impaired or the assertion of those rights prevented."

About midway through the story, the Times reports:
Mr. Kline, a conservative Republican, secretly began the investigation into the two abortion clinics shortly after taking office in 2003. It was the first of its kind in the country to pursue criminal charges and was part of an effort by Mr. Kline to clamp down on illegal abortions.

The investigation became public when the clinics moved to stop the subpoenas, and shortly afterward, the attorney general in Indiana, also an anti-abortion Republican, took a similar tack, demanding 80 patient files in an investigation of whether Planned Parenthood clinics failed to report illegal sexual activity by girls under 14.

Indiana suit. And what of Indiana? As reported in this ILB entry from Dec. 15, 2005, the Indiana Court of Appeals heard oral arguments in the case of Planned Parenthood of Indiana v. Steve Carter, et al. on Dec. 14th. The description from the Court's site:
Planned Parenthood of Indiana, on its own behalf and on behalf of its patients, appeals the denial of its motion for preliminary injunction against Steve Carter, in his official capacity as Attorney General of the State of Indiana, and Allen K. Pope, in his official capacity as Director, Indiana Medicaid Fraud Control Unit.
The entry has a link to the oral argument, plus links to previous coverage of the Indiana story.

Posted by Marcia Oddi on Saturday, February 04, 2006
Posted to General Law Related | Ind. App.Ct. Decisions

Friday, February 03, 2006

Law - Kansas Supreme Court rules in favor of privacy of abortion patients

A decision today by the Kansas Supreme Court today may have repercussions in Indiana also. Recall that last spring both the Attorney General of Kansas and Indiana's Attorney General made national news over their efforts to obtain medical records from abortion clinics. An Indianapolis Star story at the time, quoted in this ILB entry from 3/24/05, began:

Attorney General Steve Carter is demanding the medical records of 73 low-income patients from Planned Parenthood of Indiana as part of an investigation that critics say tramples on Hoosiers' privacy rights.

Planned Parenthood filed a lawsuit Monday in Marion Superior Court to prevent Carter's Medicaid fraud unit from seizing confidential medical records of patients under the age of 14 who sought reproductive health care from its clinics.

A Washington Post story quoted in the same entry began:
Two Kansas clinics are opposing efforts by the state's attorney general to obtain the medical records of more than 80 women who received late-term abortions in 2003.

The attorney general, Phill Kline, has argued that he is looking for evidence of child rape and violations of a state law restricting abortions performed after 22 weeks of pregnancy. But clinic supporters contend Kline is on a fishing expedition that invades patients' privacy and is making a calculated effort to hamper the clinics from performing abortions.

Here [thanks to How Appealing] is a link to the Kansas decision, Alpha Medical Clinic, et al. v. Honorable Richard Anderson, et al. The ruling begins:
This is an original action in mandamus brought by petitioners Alpha Medical Clinic and Beta Medical Clinic arising out of an inquisition in which respondent Attorney General Phill Kline subpoenaed the entire, unredacted patient files of 90 women and girls who obtained abortions at petitioners' clinics in 2003. At the time the petition in this action was filed, respondent Shawnee County District Judge Richard Anderson had ordered the files produced to the court for an initial in camera review by an attorney appointed by the judge and a physician or physicians appointed by the attorney general. We stayed that order pending our consideration of the matter.

The parties' pleadings and briefs raise several issues: (1) Is mandamus an appropriate avenue for relief? (2) To what degree, if any, must the inquisition subpoenas be limited because of the patients' constitutional right to privacy? (3) To what degree, if any, must the inquisition subpoenas be limited because of the Kansas statutory physician-patient privilege? (4) To what extent, if any, are the petitioners entitled to be further informed regarding the purpose and scope of the inquisition? (5) Should the nondisclosure provisions of the subpoenas be enforced? and (6) Should the attorney general be held in contempt for speaking publicly about matters held under seal in this court?

Posted by Marcia Oddi on Friday, February 03, 2006
Posted to General Law Related

Ind. Courts - Benjamin Pfaff's law license reinstated [Updated]

The Elkhart Truth reports today:

The Indiana Supreme Court reinstated the law license of Benjamin Pfaff, the former judge who resigned last year in the midst of a disciplinary case.

After Pfaff resigned last fall, the state's high court formally removed him from office and disqualified him from ever serving again as a judge. The court ordered Pfaff to pay attorney's fees and court costs related to the disciplinary case.

Those fees and costs were paid last month and his license reinstated, according to the Supreme Court.

[Updated 2/4/06] Today's Goshen News provides information on what it cost Mr. Pfaff to reinstate his law license:
Pfaff paid $12,106.75 in court costs related to a disciplinary case filed against him. * * *

The state’s high court accepted his resignation and permanently prohibited him from seeking or accepting any judicial office in Indiana.

The costs of the investigation, master’s proceedings and court reporter expenses were assessed against him and his law license was suspended until the costs were paid.

Posted by Marcia Oddi on Friday, February 03, 2006
Posted to Indiana Courts

Courts - Justice O'Connor blasts efforts to change state judge selection process

The Arizona Daily Star reports today, in a story headlined "O'Connor, in Tucson, blasts moves to alter how Ariz. judges are picked":

Recently retired U.S. Supreme Court Justice Sandra Day O'Connor on Thursday harshly criticized moves in the Legislature to alter the way judges are selected in Arizona.

Speaking to a group of women lawyers in Tucson, O'Connor urged an audience of more than 300 to fight "attacks" on an independent judiciary.

"If you don't know about it, find out about it because it's real, it is very serious and, unless all of us take it seriously and do what we can to make the public understand, then an activist judge is a judge who gets up in the morning and goes to work," the 75-year-old Arizona native said.

At least five measures before lawmakers would boost the role of the Legislature in choosing who presides over state courts. * * *

"I'm very concerned, and I hope all of you will be," O'Connor, the first woman to serve on the U.S. Supreme Court, told the Arizona Women Lawyers Association.

"There are propositions pending in the Arizona Legislature that would effectively put an end to merit selection of judges in Arizona," she said. "It is merit selection of appellate judges that (has) produced the very high quality on the appellate court and the Supreme Court of Arizona that we enjoy today."

In a brief interview after her remarks, O'Connor said adoption of the measures "would be a step backwards." * * *

Arizona Supreme Court Chief Justice Ruth McGregor, who heard O'Connor's remarks at the Doubletree Hotel at Reid Park, noted that O'Connor has a long connection to the judicial selection system she defended. "She was part of the group that really pushed through or got the public to adopt merit selection in Arizona 30-plus years ago," she said.

That is about the same time Indiana's changes, which also have been under legislative attack during the past two sessions, were made.

Posted by Marcia Oddi on Friday, February 03, 2006
Posted to Indiana Courts

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending February 3, 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 February 3, 2006. There are 38 Court of Appeals cases listed this week. One Tax Court case is listed.

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, February 03, 2006
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending February 3, 2006

Here is the Indiana Supreme Court's transfer list for the week ending February 3, 2006.

One transfer grant today. In the case of Andrew Biddle, et al. v. BAA Indianapolis, LLC et al., appellee Indianapolis Airport Authority was granted transfer, while appellee BAA Indianapolis was denied transfer.

Here is the Court of Appeals opinion, which was issued while the ILB was on hiatus last summer. Here is how the ruling, by Judge Sullivan, begins:

Todd and Rosalyn Fakes, Brenda and Jeffrey Jay, Khousar and Arif Kheiri, and Raymond and Sherry Shannon (collectively “the Homeowners”) appeal from the trial court’s grant of summary judgment in favor of BAA Indianapolis, LLC (“BAA”), and Indianapolis Airport Authority (“IAA”). The Homeowners present three issues for our review, which we restate as:
I. Whether a compensable taking of property may occur when a neighborhood is affected by noise from overflights of aircraft;

II. Whether a homeowner who purchases a residence while knowing that the prior owner has been compensated for a noise disturbance may maintain a cause of action for additional noise disturbances; and

III. Whether a cause of action based upon promissory estoppel exists. We affirm in part, reverse in part, and remand.

Two years of Transfer Lists: 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, February 03, 2006
Posted to Indiana Transfer Lists

Ind. Courts - Supreme Court library remains closed

In this Nov. 23, 2005 entry, the ILB reported that the Supreme Court law library would be closed for construction until Jan. 11th.

Well, I was there this week, and it is still closed.

New expected completion date for this phase of the rennovation? Perhaps six more weeks -- that would be mid-March.

Posted by Marcia Oddi on Friday, February 03, 2006
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues two

Neither are Indiana cases.

USA v. Williams, Darius C. - Sentencing appeal, affirmed.

USA v. Cherry, Alan - 2-1 decision in legality of search case. Majority affirms in first 10 pages. Judge Posner dissents in last 8 pages, concluding:

The judgment cannot be upheld on the basis of the district court’s reasoning. The case should be remanded for a determination of the credibility of the officer who testified that he smelled marijuana. If that testimony is credited by the district judge, there was probable cause to search the car; if not, not, and the evidence of the gun should be suppressed.

Posted by Marcia Oddi on Friday, February 03, 2006
Posted to Ind. (7th Cir.) Decisions

Ind .Decisions - Court of Appeals issues one today

In Lawrence Taylor v. State of Indiana, Judge Mathias concludes:

The trial court did not abuse its discretion when it admitted T.J.’s hearsay statements under Indiana Code section 35-37-4-6 and sufficient evidence supports Taylor’s conviction of Class A felony child molesting.

Posted by Marcia Oddi on Friday, February 03, 2006
Posted to Ind. App.Ct. Decisions

Environment - Gary Post-Trib has another good wood-fired boilers story

Tim Zorn of the Gary Post-Tribune has good coverage again today of the wood-fired boilers issue. His comprehensive Jan. 22nd story is featured in this ILB entry. Some quotes:

[T]he Indiana Department of Environmental Management is considering whether to impose regulations on outdoor wood boilers, IDEM staffer Sean Gorman said Thursday.

The wood-fired boilers “have really flown under the radar for quite a while,” Gorman told the Northwestern Indiana Regional Planning Commission’s environmental committee.

Wood smoke contains a number of hazardous and lung-damaging pollutants, he said, and wood-burning boilers often are smokier than wood stoves.

But most of the comments IDEM has received so far have opposed prohibitions on wood-burning boilers, Gorman said, and the Indiana General Assembly is considering a bill that would prohibit the state’s Air Pollution Control Board from passing any rule on the boilers. [See this 1/31/06 ILB entry.]

Some NIRPC committee members suggested Indiana join Michigan and several Northeastern states in asking the EPA to devise rules for the wood boilers.

It’s one thing to have a smoky wood fire at a house surrounded by acres of open land, but another matter when the boilers start appearing in subdivisions, Kevin Breitzke said.

Gorman said two southern Indiana towns, Petersburg and Loogootee, have banned the boilers within their limits.

And, he said, the American Society for Testing and Materials is working on manufacturing standards for the boilers.

Jim Donnelly, a LaPorte-area resident who has campaigned against wood-fired boilers since one appeared in his neighborhood, wants the EPA to set national rules.

Posted by Marcia Oddi on Friday, February 03, 2006
Posted to Environment | Indiana Government

Ind. Courts - Lake County GOP's lawyer faces disciplinary action

The Munster (NW Indiana) Times reports today:

CROWN POINT | The Indiana Supreme Court is threatening to suspend the law license of an attorney representing the Lake County Republican Party.

The high court issued an order this week to Crown Point attorney Bruce A. Lambka stating he has failed to respond to the Indiana Disciplinary Commission's investigation of a complaint filed against him by a client. * * *

Lambka is paid $90 an hour as the Republican Party's attorney on the Lake County elections board, which regulates political campaigning.

GOP County Chairman John Curley said he continues to have faith in Lambka and that he believes the disciplinary matter is unrelated to Lambka's party work.

The Supreme Court order is available here. Several similar orders have been issued already this year, plus one, an Order to Show Cause, In the Matter of the Contempt of the Supreme Court of Indiana of: Bruce W. McLaren, that begins:
Comes now the Indiana Supreme Court Disciplinary Commission and pursuant to Ind.Admission and Discipline Rule 23, §§ 8(e) and 9(i), petitions this Court to direct the respondent, Bruce W. McLaren, to show cause why he should not be held in contempt of this Court due to his unauthorized practice of law subsequent to his resignation from the Bar of the State of Indiana on December 8, 2003, as set forth in the Verified Information filed by the Commission on January 23, 2006.

Posted by Marcia Oddi on Friday, February 03, 2006
Posted to Indiana Courts

Ind. Law - Phone deregulation advances: House, Senate OK different versions [More]

Lesley Stedman Weidenbener of the Louisville Courier Journal reports today on the House and Senate telecommunications bills - each has now passed its own house of origin.

[More] See this entry, headed "Commentary on Forces Competing to Determine 'Digital Destiny'" from the blog Be Specific, and the related links, particularly the one titled "The End of the Internet?"

Posted by Marcia Oddi on Friday, February 03, 2006
Posted to Indiana Law

Ind. Courts - Monroe Circuit Judge Jeffrey Chalfant has filed his candidacy for judge of Monroe County's newly created eighth court

So reports the Bloomington Herald Times today:

Chalfant was appointed to the position earlier this year by Indiana Gov. Mitch Daniels.

Chalfant, a Muncie native, earned his degree from the Indiana University School of Law.

Prior to serving as judge, Chalfant worked with local firms Applegate, McDonald, Koch & Arnold and Bauer & Densford and served as a deputy prosecuting attorney and a deputy public defender.

Posted by Marcia Oddi on Friday, February 03, 2006
Posted to Indiana Courts

Ind. Law - Headlines pretty much tell the story of House actions yesterday ...

Canned Deer Hunting. "Reprieve for high-fenced hunts clears House" - HB 1349 guarantees facilities may stay open another seven years and, in a log-rolling move (via Fort Wayne Journal Gazette):

House members earlier this week added a provision to the bill giving free lifetime fishing, hunting and trapping licenses to honorably discharged veterans – something Dickinson said was by design. “Nobody wants to vote against veterans.”
Wine Shipping. "Wine bill moves on despite opposition" - HB 1190 may devastate Indiana wineries (via Fort Wayne Journal Gazette):
The legislation also contains language ordering judges to strictly construe Indiana alcohol law – something the wineries believe is meant to protect the wholesalers and retailers in the current lawsuit. Rep. Bill Cochran, D-New Albany, said he spoke to two wineries who said the legislation would devastate their business. “They don’t even want this bill to go forward,” he said. “They’d rather have nothing.” The Indiana Farm Bureau came out against the bill, saying the solution in the legislation is “awkward, cumbersome and will prove unworkable. The victims of this bill will be the newest and smallest of Indiana’s wineries.”
Legal Fireworks. "Legalized fireworks fly over to Senate" - HB 1099, said to be favored by the adminstration, would "allow Hoosiers to legally buy and shoot fireworks from their own yards. ... But others were concerned about the safety aspects of fireworks as well as neighbors using the devices without time limits or restrictions in close urban quarters." (from the Fort Wayne Journal Gazette.)

"Rockets' red glare could be legalized" is the headline to the Evansville Courier& Press coverage.

"Fireworks restrictions may end: House OKs bill letting people shoot off most devices in their yards" (from the Indianapolis Star):

Critics lashed out at the bill. Rep. Phyllis Pond, R-New Haven, called the money for the fire academies a carrot meant to lure people to support the worst bill she'd seen relating to fireworks.

"Remember, when people in your neighborhood have fireworks go off and someone is injured, you had the chance on February 2nd, Groundhog Day, to stop this ridiculous bill.''

For the past two decades, those in the fireworks industry have lobbied aggressively for changes to Indiana's law. They predicted their efforts would bear fruit this year.

Abortion Clinics. "Abortion clinics may have to close: Providers say state bill regulating facilities, with no 'grandfather' clause, leaves no time to comply" - According to the Indianapolis Star:
HB 1080 would require Indiana abortion providers to adhere to certain standards by Jan. 1 ... The latest proposal is a stark turnaround from last year, when the General Assembly ordered the State Department of Health to issue standards for abortion clinics and birthing centers but allowed existing facilities to be "grandfathered" in, meaning they wouldn't be subject to the new regulations.

Posted by Marcia Oddi on Friday, February 03, 2006
Posted to Indiana Law

Thursday, February 02, 2006

Environment - IDEM: No enforcement on CAFOs for next 3 years

The Brownfield Network (America's Ag News Source) reports today:

What a difference a year makes. Last year at this time, the Indiana Department of Environmental Management (IDEM) was the black sheep of state government.

Governor Daniels, in his campaign, had made it an example of how state government was not working. Today IDEM is a much different place. IDEM Commissioner Tom Easterly said the agency has undergone a culture change, “I have stressed to each one of our 900 employees that the economy along with the environment is important and that working with farmers and industry is our job.”

He stressed, in a frank and candid address to the Indiana Pork Producers state convention this week, that his agency wants to work with producers to make sure the regulations are clear and fair, and that communications are open and ongoing.

For example he told the producers IDEM will suspend enforcement of Confined Animal Feeding Operation (CAFO) permits until the EPA has cleared up the confusion surrounding CAFOs. This is the result of a court decision that threw out previous EPA regulations on CAFOs. “Until we know what the federal rules are, it makes no sense to enforce them,” said Easterly. He said no enforcement action will be taken for at least the next 3 years.

Posted by Marcia Oddi on Thursday, February 02, 2006
Posted to Environment

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

Updating this entry from Monday on the legal events surrounding the execution of Indiana inmate Marvin Bieghler, Tom Goldstein of SCOTUSblog explores, in this post, issues including: "What then explains the contrast between the order vacating in Bieghler and the order refusing to vacate in Crawford, when the cases were nominally in the identical procedural posture?"

Posted by Marcia Oddi on Thursday, February 02, 2006
Posted to Indiana Courts

Ind. Courts - Kokomo judge focus of story today

Superior Court 2 Judge Stephen Jessup is the subject of this story today in the Kokomo Perspective. The report by Lisa Fipps begins:

Attorney Dan May has filed a civil complaint against Superior Court II Judge Stephen Jessup, alleging the judge “flipped off” the attorney and that “obscene gesture” has caused May extra work in his practice.

Jessup doesn’t deny he gave May the bird: “The incident absolutely did happen, and I regretted it immediately. I apologized to Mr. May, and he accepted my apology.”

Earlier entries mentioning Judge Jessup were posted Jan. 6th and Jan. 19th, both based on stories from the Kokomo paper.

Posted by Marcia Oddi on Thursday, February 02, 2006
Posted to Indiana Courts

Courts - Illinois proposal calls for public funding of judicial elections

The St. Louis Post Dispatch reports today:

SPRINGFIELD, ILL. State officials and activists announced on Wednesday an ethics-reform proposal that would include public financing of judicial elections. * * *

Major points of the proposal include: Public funding of judicial campaigns through a new checkoff box on tax forms. Participating candidates would get $750,000. Contributions to nonparticipating candidates from private donors would be limited to $1,000.

Posted by Marcia Oddi on Thursday, February 02, 2006
Posted to Indiana Courts

Ind. Law - Wine "shipping" bill passes House: An example of "Be careful what you wish for"?

"House votes to restrict how wineries ship their products" is the heading of a brief item today in the Indianapolis Star:

The House voted 60-36 for a bill restricting the way Indiana's small wineries could ship their goods, even after a co-author of the measure urged its defeat.

Rep. Eric Koch, R-Bedford, said he could not support House Bill 1190 because the Indiana Farm Bureau and Oliver Winery near Bloomington had told him its impact could be devastating.

Under the bill, wineries could not ship directly to consumers but instead would have to have a wholesaler collect the wine and deliver it to a retail shop, where the customer could collect the bottles or case. Rep. Marlin Stutzman, R-Howe, urged his colleagues to keep the measure alive for further work in the Senate.

See this ILB entry from Jan. 20th and this one from Jan. 19th.

See also this informative story today from the Philadelphia Inquirer headlined "Wine-law chaos? It's a corker".

Posted by Marcia Oddi on Thursday, February 02, 2006
Posted to Indiana Law

Ind. Gov't. - For most bills, it's a short life; Bill to abolish legislators' health care perks among the dead

"For most bills, it's a short life" is the headline to a Mary Beth Schneider story today in the Indianapolis Star. Some quotes:

The deadline for bills to pass the Indiana House or Senate in the first round of legislative action is today, but many already have fallen by the legislative wayside, not even getting a hearing, much less a vote. * * *

This is the short legislative session, which must end by law on March 14. That left little time for dealing with the 394 bills filed in the 50-member Senate or the 440 bills filed in the 100-member House. * * *

The majority of bills that did get hearings and votes are sponsored by Republicans, who control the Senate 33-17 and the House 52-48. In the House, only 18 bills with Democratic authors survived. In the Senate, there were 10 -- and all had Republican co-authors.

A notable dead bill, not mentioned in the story, is Rep. Troy A. Woodruff's (R-Vincennes) HB 1309, to repeal the statutory authority under which the taxpayers pay much of the health care premiums for eligible former legislators and their wives, children under 25, etc., which was assigned by Speaker Bosma to the Committee on Rules and Legislative Procedures and never received a hearing.

That leaves only Rep. Bosma's statement that he will administratively abolish health care perks for those legislators with more than 6 years service who are reelected next year.

Those representatives already receiving the benefit (projected to be worth an average of $250,000 for each legislator and his kin), and those with more than 6 years of service who retire or are defeated this year, will be unaffected by Bosma's change. And the program may be reinstituted at any time by a simple memo of the Speaker.

Not publicly available, as far as I am aware, are either the "two-page memo" of the Speaker and Pro Temp that grants these benefits, or Bosma's modifications thereof.

Senator Garton has totally stone-walled the public outcry and the program will continue in the Senate as in the past.

Posted by Marcia Oddi on Thursday, February 02, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Decisions - Supreme Court answers certified question fron Judge Barker in Guidant suit

In re Guidant Shareholders Derivative Litigation v. Ronald Donnels

Chief Justice Shepard writes:

The U.S. District Court of the Southern District of Indiana has asked us if passage of the Indiana Business Corporation Law in 1986 requires a shareholder commencing a derivative lawsuit to make a written demand on the corporation unless irreparable injury to the corporation would result, or if demand is still excused if it would be futile. Pursuant to Indiana Appellate Rule 64, Judge Sarah Evans Barker has certified the following question of Indiana law:
Under Indiana Code § 23-1-32-2, regarding futility, by what legal standard should a court evaluate a shareholder’s decision not to make demand to a public corporation’s board of directors before filing a derivative suit?
We have accepted this certified question and now hold that the Indiana Business Corporation Law retains the futility standard, but narrows its applicability substantially by authorizing corporations to establish disinterested committees to determine whether the corporation should pursue certain claims. * * *

Conclusion A shareholder may be excused under Indiana Code § 23-1-32-2 from making a demand on the board of directors before filing a derivative suit if such demand would be futile. Such a demand is no longer futile, however, simply because the verified complaint names the members of the board, or because it alleges that members of the board are involved in wrongdoing. The availability of the disinterested committee will bar a separate derivative action unless the derivative plaintiff can establish that the committee was not disinterested or that its decision was not undertaken after a good faith investigation.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

Posted by Marcia Oddi on Thursday, February 02, 2006
Posted to Ind. Sup.Ct. Decisions

Environment - More on: EPA Deal Eases Fines for Farms That Pollute; What this Means for Indiana

The Muncie Star-Press, in a story by Seth Slabaugh, reports today on the EPA agreement with the first three Indiana industrial-type farms that have signed agreements with US EPA, to provide data in exchange from exemption from penalties.

This story was reported in the ILB on Tuesday, Jan. 31st - see this entry.

From the Star-Press:

The three Hoosier producers are:

Mike Osterholt, 2104 E. Jay County Road 300-S, Portland, (192,960 laying hens).

Terry Finnerty, 10347 W. Ind. 26, Dunkirk, (1,200 nursery pigs and 6,800 finishing pigs).

Jerry and Ruth Warren, 6873 E. Randolph County Road 625-N, Union City, (4,000 finishing pigs).

Posted by Marcia Oddi on Thursday, February 02, 2006
Posted to Environment

Ind. Gov't. - Legislature again has the opportunity to ban serial meetings

As indicated in this ILB entry from Jan. 2nd, Senator Bev Gard's bill last year to ban serial meetings received much editorial praise. But it failed.

This year's effort, SB 89, has passed the Senate, 48-2. It has not yet been assigned to a House committee.

Last year's effort, SB 310, passed the Senate 49-0, and died in the House Local Government Committee.

The Indianapolis Star published an editorial supporting SB 89 on Tuesday. Both the Evansville Courier& Press and the Fort Wayne Journal Gazette has supportive editorials today, here and here.

Posted by Marcia Oddi on Thursday, February 02, 2006
Posted to Indiana Government

Environment - Louisville coalition wants to halt program to regulate toxic air

The Louisville Courier Journal reports today:

Nineteen Louisville companies, unions and trade associations announced yesterday that they have joined forces in an attempt to end Louisville's new Strategic Toxic Air Reduction program.

The coalition, which includes auto workers and union members at several Rubbertown chemical plants, as well as some of the plants themselves, said the program, or STAR, is too costly and might not improve air quality.

The group is encouraging the passage of state Senate Bill 39, which would prohibit the Louisville Metro Air Pollution Control District from adopting regulations more stringent than state or federal ones.

Posted by Marcia Oddi on Thursday, February 02, 2006
Posted to Environment

Ind. Law - Former Indiana attorney captured in Phoenix

Dave Overton of The Elkhart Truth reports:

PHOENIX -- A former Elkhart police officer and Indianapolis attorney was arrested in northern Phoenix Tuesday night in a stolen car and later identified as a federal bank robbery fugitive.

Bruce Davidson Jr., 41, was taken into custody without incident, according to the FBI in Phoenix. * * *

Davidson was put on the FBI's wanted list in August 2005 as a suspect in a series of bank robberies in seven states. * * *

The former Elkhart police officer was fired from the department in 1995.

He moved to Indianapolis and became an attorney, practicing law in the Indianapolis area. In 2002, he won a defamation lawsuit against former Elkhart Mayor James Perron.

The Indiana Supreme Court took away Davidson's attorney's license in 2004 after finding him guilty of six counts of misconduct, specifically taking clients' money for lawsuits in which he did little or no work.

Posted by Marcia Oddi on Thursday, February 02, 2006
Posted to Indiana Law

Ind. Decisions - 7th Circuit posts three, none Indiana-related

Bender, Gary v. Freed, Gretchen - attorney fees in ERISA case denied

USA v. Wilson, Lee A.
- criminal

USA v. McLee, Rodney - criminal

Posted by Marcia Oddi on Thursday, February 02, 2006
Posted to Ind. (7th Cir.) Decisions

Wednesday, February 01, 2006

Law - New Jersey case on waiver of liability at skateboard park

The New Jersey Star-Ledger reported yesterday on an argument before the NJ Supreme Court on whether parents can waive their children's rights to sue. Some quotes:

In a case involving a 12-year-old skateboarder's broken leg, the state Supreme Court has been asked to decide whether parents can sign away their children's rights to sue.

The boy is suing the commercial skateboarding park where he was hurt, even though his mother had signed a form giving up that right. * * *

The attorney for the injured boy argued that if parents can waive their children's rights, release forms will become commonplace and amusement operators will be freed of responsibility to make their rides and facilities safe. * * *

Richard Wischusen, a lawyer for the skateboarding park, said that unless commercial sporting facilities can protect themselves from lawsuits, they are "going to become too expensive and they're going to close their doors and go away." * * *

Justice Barry Albin asked whether the court should enforce releases that give operators of recreational facilities "a free pass for their own negligence."

Wischusen replied that his client was only trying to avoid lawsuits resulting from "the inherent risks of the sport."

The case tests the validity of a form that Anastasia Hojnowski signed on Dec. 26, 2002, so that her 12-year-old son, Andrew, could skateboard at Vans Skate Park in Moorestown. A week later, the boy broke his thighbone while skateboarding and had to undergo surgery twice. The family sued, claiming the park was negligent because it had failed to supervise the skating and control "aggressive skateboarders."

One provision in the form provided that if Andrew were injured, his claim would be heard by an arbitrator rather than a jury. A state appeals court upheld that.

The form also said Andrew could collect money from Vans only if it "intentionally failed" to correct a hazardous condition or unsafe equipment. The appeals court ruled 2-1 that Andrew's mother could not restrict his rights in that fashion.

Wischusen said the skate park needs that protection because it has been sued too often by skateboarders who claim they should never have been allowed to use the facility because they were inexperienced.

"We win those," Wischusen said, but only after the insurance company spends "thousands" of dollars in defense costs that drive up premiums. He said Vans Inc. sold its Moorestown skate park because it became unprofitable.

Porter argued that public safety is so important that no one, even adults, should be able to sign away their right to sue. He said the highest courts of Utah, Colorado and Washington state have ruled that parents cannot sign away their children's right to sue.

Posted by Marcia Oddi on Wednesday, February 01, 2006
Posted to General Law Related

Ind. Decisions - 7th Circuit posts 5 today, one is from Indiana

Gear, Brent v. Emergency Medical - double billing under Medicaid

Dunlap, Charles A. v. Hepp, Randy - confrontation clause

IFC Credit Corp. v. Aliano Brothers - validity of a forum selection clause

Iysheh, Ali J. v. Gonzales, Alberto
- immigration

In USA v. Sharp, Vincent (SD Ind. John Daniel Tinder, Judge), a 16-page opinion, Judge Bauer wrties:

Vincent Sharp pleaded guilty to one count of distribution of five kilograms or more of a substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii). The district court sentenced Sharp to 235 months’ imprisonment. On appeal, Sharp claims that the district court erred by failing to give notice of its intention to deviate from the presentence report (PSR), and that his sentence was unreasonable. We affirm.

Posted by Marcia Oddi on Wednesday, February 01, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues two today

In Willie Campbell, III v. State of Indiana, Judge Robb writes:

Willie Campbell, III, was found guilty following a jury trial of carrying a handgun without a license as a Class C felony. Campbell now appeals his conviction. We affirm. * * *

Conclusion. Campbell was not seized under the Fourth Amendment or Article 1, Section 11 when the police shined a spotlight on him or when he tossed the gun underneath the car. The handgun was abandoned property and was properly admitted by the trial court. The State presented sufficient evidence to support Campbell’s conviction for carrying a handgun without a license as a Class C felony. Campbell’s conviction is therefore affirmed.

In John Rowlett v. Vanderburgh Co. Office of Family & Children, the panel, 2-1, reverses the lower court's termination of parental rights.

Posted by Marcia Oddi on Wednesday, February 01, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today

Coca-Cola Company v. Babyback's International, Inc., a 16-page, unanimous opinion written by Justice Dickson, begins:

This opinion centers on the enforceability of an alleged business agreement reflected in a memo prepared and faxed by one party to another. The trial court denied separate motions for summary judgment filed by each of the three defendants, but certified its order for interlocutory appeal for two of the defendants. As to its denial of the motion for partial summary judgment filed by defendant Coca-Cola Enterprises Inc. ("CCE"), the trial court's certification order described the "fundamental issue" as:
whether a legally sufficient written contract was signed for the alleged national co-marketing agreement to satisfy the requirements of Indiana's Statute of Frauds. . . . If an adequate writing is determined to not exist, a question of law remains whether the equitable doctrines of part performance or promissory estoppel can support plaintiff's claims for lost future profits. If an adequate writing is determined to exist, these alternative positions of plaintiff need not be litigated.
Appellants' Joint App'x. at 762. With regard to defendant Coca-Cola Company ("Coke USA"), the certification order stated that "the issue is whether Coke USA's efforts to protect its property interests were justified as a matter of law, thereby precluding plaintiff's [tortious] interference claims." Id.

The Court of Appeals accepted the interlocutory appeals and affirmed the trial court. Coca-Cola Co. v. Babyback's Int'l, Inc., 806 N.E.2d 37 (Ind. Ct. App. 2004). We granted transfer and now reverse the denial of CCE's motion for partial summary judgment as to the issues described in the trial court's certification order. With respect to Coke USA's motion, we summarily affirm the decision of the Court of Appeals, which affirmed the trial court's denial of summary judgment. Ind. Appellate Rule 58(A)(2). * * *

Conclusion After denying CCE's motion for partial summary judgment, the trial court certified this interlocutory appeal, specifically identifying three issues for appellate consideration: (1) the suf-ficiency under the Statute of Frauds of the written memorandum of the alleged national co-marking agreement; (2) the availability of the doctrine of part performance; and (3) the availabil-ity of the doctrine of promissory estoppel. See Appellants' Joint App'x. at 762. As to each of these issues, we hold that there is no genuine issue of determinative fact and that CCE is entitled to summary judgment as a matter of law. The denial of CCE's motion for partial summary judgment is reversed, and this cause is remanded to the trial court for further proceedings consis-tent with this opinion.

Posted by Marcia Oddi on Wednesday, February 01, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Courthouse likely issue in election of commissioners

"Courthouse likely issue in election of commissioners" is the headline to this story by Joy Leiker in the Muncie Star-Press. Some quotes:

WINCHESTER -- The fight over the Randolph County Courthouse likely will be a front-and-center issue in the race for the one open seat on the board of county commissioners.

Incumbent Drew Wright, a Republican from Farmland, has yet to file for re-election, but on Tuesday two relative newcomers to the political scene filed to run for the Western District seat Wright now holds. * * *

Wright, former sheriff of Randolph County, has been the leading proponent on the current three-member board to tear down the courthouse, which was has stood since 1877. He was part of the majority vote last summer to demolish the structure and replace it with a new courthouse on the same spot in downtown Winchester. Lots of outrage, but little actual progress, has come about since the June vote.

Posted by Marcia Oddi on Wednesday, February 01, 2006
Posted to Indiana Courts

Ind. Law - Canned deer hunting preserves would continue under House amendments

Existing high-fence deer hunting preserves would be allowed to continue operations under amendments to HB 1349 passed in the House yesterday, according to newspaper reports today. Technically, they would be allowed to operate for just seven more years, but practically that means they would be effectively guaranteed a minimum of seven more years operation.

The Louisville Courier Journal's Lesley Stedman Weidenbener writes:

The House approved an amendment yesterday that would stop new high-fence deer hunting preserves from opening and let existing preserves operate for just seven more years.

The amendment was added to House Bill 1349, which in its original form would have legalized fenced hunting despite a state agency's decision last year to end the practice.

But support was sketchy for total legalization of the hunting, which now takes place on as many as 15 preserves across the state. So the bill's author, Rep. John Ulmer, R-Goshen, offered to restrict it.

"These preserves had been legal in Indiana for a number of years" before the Department of Natural Resources reinterpreted existing state law, Ulmer told his colleagues. "This will allow these businesses to at least try and recoup their expenses for setting up these operations."

The amendment won votes from those who abhor fenced hunting and want to see it eventually eliminated, as well as those who support it and wanted some opportunity let existing operations continue for a few years.

The Fort Wayne Journal Gazette's Niki Kelly reports:
[N]egotiations have continued on the bill, including DNR Director Kyle Hupfer heavily lobbying lawmakers in the Statehouse halls. As a result, the author of the bill – Rep. John Ulmer, R-Goshen – said compromise language had been reached that would allow existing preserves to continue until 2013 before all would be shut down.

To be eligible, a facility must have had a game breeder’s permit as well as documentation showing the owner has allowed deer or elk hunting at the facility between 2003 and 2005.

During the first five years of the extension, the preserve would be allowed to purchase and release new deer into the acreage but during the last two years can hunt only deer raised on its own property.

Weapons limitations related to the hunting of whitetail deer would apply to any animal on a licensed hunting facility, according to the amended legislation. Also, whitetail deer would be subject to current hunting limits but could be hunted year-round.

Even those against canned hunting in principle were supportive of the amendment because it limits the number of preserves that could exist in the future.
Rep. Dale Grubb, D-Covington, said not placing the amendment in the bill would mean a risk that the facilities would be legal forever.

“This puts some constraints so they cannot expand,” he said. “Regardless of your position on the underlying bill the amendment I believe softens it.”

Access HB 1349 here. The ILB has had many past entries on deer hunting preserves.

Posted by Marcia Oddi on Wednesday, February 01, 2006
Posted to Environment | Indiana Government | Indiana Law

Ind. Courts - Vanderburgh Superior Court judge faces challenger

The Evansville Courier& Press reports today:

Vanderburgh County voters will see a rarity on the campaign trail this year: A sitting Superior Court judge asking for votes she needs to fend off a challenger.

The contest was set up Tuesday, when Judge Mary Margaret Lloyd filed her candidacy for re-election at the county Election Office and challenger Conor O'Daniel followed a couple of hours later.

Anyone else interested in seeking the judgeship in this year's nonpartisan election has until noon on Feb. 17 to file.

Lloyd, daughter of the late Evansville Mayor Russell G. Lloyd Sr., was elected to her first six-year term in 2000. She is Vanderburgh County's first elected female judge. * * *

O'Daniel, a criminal defense attorney whose practice also involves Family Court work and some civil litigation, said Superior Court should be more open to new and different approaches to sentencing. * * *

Superior Court Judges Brett Niemeier, Wayne Trockman and Robert J. Tornatta also come up for re-election this year. Tornatta and Trockman have filed their candidacies without challengers thus far, and Niemeier says he will soon.

Posted by Marcia Oddi on Wednesday, February 01, 2006
Posted to Indiana Courts