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Friday, March 31, 2006

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending March 31, 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Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending March 31, 2006.

There are 26 Court of Appeals cases listed this week.

Posted by Marcia Oddi on Friday, March 31, 2006
Posted to NFP Lists

Ind. Decisions - Two today from the Court of Appeals

In James Rose and Robert Underwood v. Mercantile Natl. Bank of Hammond, J.R. Construction Co. and Joseph Ramacci, a 40-page opinion (with Judge Darden's concurring/dissenting opinion beginning on p. 37), Judge May concludes:

The trial court did not abuse its discretion when it denied Rose and Underwood’s motion for change of venue from the judge, when it granted Mercantile’s motion to amend its complaint, or when it denied Rose and Underwood’s motion for a jury trial on the treble damages count. The evidence supports the trial court’s findings and conclusions regarding Rose and Underwood’s violation of Section 14 of Indiana’s Uniform Fraudulent Transfer Act and their violation of Ind. Code § 35-43-5-4(8). However, we believe the trial court’s award of attorney fees provides a windfall to Mercantile’s counsel, and we remand for the court to calculate reasonable attorney fees.

DARDEN, Judge, concurring in part and dissenting in part. I respectfully dissent. I believe the trial court erred in allowing Mercantile to amend its complaint to add a third count, seeking treble damages and attorney’s fees pursuant to Indiana Code section 34-24-3-1, Indiana’s Property Crime Victim’s Relief Act. Furthermore, I do not believe that there is evidence that Rose and Underwood’s actions violated any criminal law. Accordingly, I also dissent as to the award of attorney’s fees pursuant to Indiana Code section 34-24-3-1.

In the Marriage of J.M. v. N.M. is a 24-page opinion by Judge Darden in an appeal of a dissolution of marriage. Affirmed.

Posted by Marcia Oddi on Friday, March 31, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending March 31, 2006

There is no transfer list for week ending March 31, 2006.

Posted by Marcia Oddi on Friday, March 31, 2006
Posted to Indiana Transfer Lists

Law - More on: The Federal Register and the Indiana Register

Last Saturday the ILB posted an entry on the 70th anniversary of the Federal Register. The entry ended with this statement:

The Indiana Register is now in Volume 29, meaning it is nearing its 30th year. But my understanding is that because of actions of the General Assembly and the Legislative Services Agency (LSA) over the past two sessions, the Indiana Register will never complete its 29th Volume. The ILB will have more on this next week.

Since its inception in the late 1970s, the Indiana Register has been published as a paged volume, similar in appearance to the Federal Register (FR). Unlike the Federal Register, which is published daily, however, the Indiana Register (IR) has been a monthly publication.

Like the FR at the federal level, the IR is the method established by law to give the state's citizens, and the businesses and industries regulated by state agencies, notice of the rulemakings these state agencies are proposing to adopt, and the final rules they have adopted.

The IR is also the only publication that publishes and indexes the executive order of Indiana's governors.

In earlier years, the IR was available only by subscription or at various libraries around the State. With the addition, about 5 years ago, of its posting to the internet, is now much more accessible to the citizens and the regulated community it impacts.

Change is underway.

The current Volume 29 of the Indiana Register is available here, on the General Assembly's site. You can access the entire April 1, 2006 issue (Volume 29, Number 7) of the IR here, as a 348-page pdf document. It is a "paged" document, formatted just as it has been for 29 years. The electronic edition has the added virtues of a linked Table of Contents (or "bookmarks") in the left column, and the Adobe PDF search feature.

Within the past several years, the Indiana General Assembly and its Legislative Services Agency, which publishes the IR, has been in the process of phasing out the paper version of the IR. Subscribers have received in recent years a CD-ROM version, rather than a paper copy. The CD-ROM version duplicates the PDF-version linked above.

The final step in the changeover from paper to electronic took place this year, with the passage of an amendment eliminating a requirement that the printed IR be distributed to various libraries.

Currently the applicable law reads:

IC 4-22-8-2. Indiana Register; publication
Sec. 2. (a) The publisher shall publish a serial publication with the name Indiana Register at least six (6) times each year.
(b) Notwithstanding any law, after June 30, 2006, the publisher shall publish the Indiana Register in electronic form only. However, the publisher shall distribute a printed copy of the Indiana Register to each federal depository library in Indiana.
(c) The publisher may meet the requirement to publish the Indiana Register electronically by permanently publishing a copy of the Indiana Register on the Internet.
As added by P.L.31-1985, SEC.35. Amended by P.L.215-2005, SEC.13.
This year's General Assembly took out the sentence in subsection (b) that reads: "However, the publisher shall distribute a printed copy of the Indiana Register to each federal depository library in Indiana." Why this is important will be clear in a moment.

The next step.

Reflecting the 2005 legislative changes, recent issues of the IR have stated on their cover:

PUBLIC COMMENTS REQUESTED: Under HEA 1135 (P.L.215-2005), after July 1, 2006, the Indiana Register will be published only on the Internet and on a more frequent basis. Written comments and suggestions concerning these changes may be sent to [the IR office].
To find out what plans the LSA had in store for the IR, the ILB called the LSA IR Office several weeks ago. Here is what I was told:In response to my question of how documents would be cited as there would be no paged volumes, I was told "by URL". As to how one would reference particular items within a document, such as a statement made in a public comment, I was told that perhaps there may be line numbers.

My overall impression was that: (1) although the date of the changeover is to be July 1, 2006, nothing is clear yet about what precisely the LSA is planning to do; and (2) July 1 may be only the beginning of a period of experimentation with the availability and accessibility of these Indiana rules (laws).

My thoughts

More frequent publication
is great. I recommended going to a twice-monthly or even weekly publication schedule several years ago, to speed up environmental rulemaking, which is often slowed because it revolves around the current monthly deadline date of the IR.

Eliminating the paper publication entirely, even to libraries, and relying entirely upon the internet (or more specifically, the website of the general assembly) concerns me. Remember, we are talking about history here. I can still go to several nearby libraries and find the Indiana Acts of 1907. Will I be able to as readily find the April 1, 2006 issue of the Indiana Register in the year 2106? I also have concerns about the security and authenticity of the documents -- again this is the law of the State we are talking about.

Dropping pagination and volumes and instead posting individual documents on the internet "as they come in" seems incredibly short-sighted. Yes, it is possible to cite documents posted on the internet by their url. But is it realistic to use that method as the only way of referencing the contents of the Indiana Register in the future?

To see how that would work out in practice with final rules, here is the history line from an amendment to the Air Rules, 326 IAC 1-3-4, found in this month's IR:

(Air Pollution Control Board; 326 IAC 1-3-
4; filed Mar 10, 1988, 1:20 p.m.: 11 IR 2378; filed Apr 13,
1988, 3:35 p.m.: 11 IR 3020; readopted filed Jan 10, 2001,
3:20 p.m.: 24 IR 1477; filed May 21, 2002, 10:20 a.m.: 25 IR
3055
; filed Mar 9, 2004, 3:45 p.m.: 27 IR 2224; filed Dec 20,
2004, 2:15 p.m.: 28 IR 1471; filed Mar 6, 2006, 3:00 p.m.: 29
IR 2179
).
I've underlined every reference to a volume and page of the Indiana Register, because these would in the future be replaced, under the LSA's plan, with a URL. Here is a sample url, probably much shorter than those of the new, unpaged IR documents may be: http://www.in.gov/legislative/register/Vol29/07Apr/02F820050137.PDF. Imagine a URL of this length being inserted in the place of each of the underlined references above. Does this seem realistic?

Finally, the LSA apparently is following no model in its plan to replace the IR with individual documents posted on the web. Remember the Federal Register, as reported in this earlier entry, has used the internet to great advantage, by retaining its paged format and building upon it with numerous linked finding aids and indices.

Posted by Marcia Oddi on Friday, March 31, 2006
Posted to Administrative Law | General Law Related | Indiana Government | Indiana Law

Ind. Decisions - More on Supreme Court's school fees decision

Jennifer Whitson of the Evansville Courier& Press reports today on the Nagy decision (see earlier ILB entry from yesterday here or scroll down two). Some quotes:

INDIANAPOLIS - In a split decision handed down Thursday, the Indiana Supreme Court ruled that a general, $20 fee the Evansville-Vanderburgh School Corp. charged violated the state constitution.

"The mandatory fee EVSC imposed generally on all students, whether the student avails herself of a service or participates in a program activity or no, becomes a charge for attending a public school ... and is therefore unconstitutional," Justice Robert D. Rucker wrote in the majority opinion. * * *

The fee raised roughly $368,000 in 2002, which went into the corporation's general fund. * * *

In a majority opinion that reads like a history lesson, Rucker outlined the debate on the constitution's wording surrounding public education in the 1850s and concluded that charging for extracurricular or additional services is OK. But if the fee covers any education mandated by state laws or rules, it is tuition.

The majority also went out of its way to say it did not agree with the Indiana Court of Appeals' broader decision, which also called into question a 1974 court ruling that said charging for textbooks was constitutional.

"We are of the view that the holding expressed by our colleagues sweeps a little too broadly," Rucker wrote.

The only dissenting justice, Frank Sullivan Jr., said he agreed with the bar the majority set to judge what constitutes tuition. But, he wrote, applying that criteria to the EVSC case should have caused a different result.

He wrote the facts agreed to in the lower rulings state that EVSC used the fee for things not required by state law or rule, thus "I believe that even under the court's construction of (the constitution), the fee was permissible." * * *

EVSC attorney Patrick Shoulders said he thinks the dissenting justice had the right answer.

"It seems to me the Supreme Court agreed with our interpretation of the constitutional provision in question," Shoulders said, adding he was confused by their outcome.

"The trial court found the facts and the facts are we didn't charge the fee for any state-mandated curriculum or requirement," he said.

Shoulders said the main point of contention left, especially since the corporation isn't charging the general fee anymore, would be whether they must refund the nearly $588,000 collected from parents. "We have a half a million dollar question on our hands here," he said.

Suess said the plaintiffs' request was to halt collections and refund the fee, adding that she will be arguing for the refund when the case returns to Vanderburgh County.

Posted by Marcia Oddi on Friday, March 31, 2006
Posted to Ind. Sup.Ct. Decisions

Courts - Computer Woes Plague Court

"Computer Woes Plague Court" is the headline to a story in Legal Times today. Some quotes from the lengthy story:

Criminal defense lawyers say a new computer system in Washington, D.C., Superior Court is wreaking havoc with their cases and in some instances violating their clients' rights. * * *

The new case management system was part of a multiyear, $20 million project to upgrade the court's entire computer framework. The new system integrates 18 databases with the aim of giving court personnel, attorneys and the public easy access to complete, real-time information about cases.

In January all new criminal cases in the court were being housed entirely in the new system, eliminating the need for paper case jackets and allowing multiple users to access the file from any computer in the courthouse. The system is now considered to be the official court docket and official court jacket.

Court officials downplay the trouble. Judge Brook Hedge, chair of the court's technology and automation committee and co-chair of the committee that oversaw the implementation of the new system, says the problems are small glitches common with a startup.

She says errors involving warrants and arraignment notices have largely been resolved and that to her knowledge the warrant mix-ups happened to fewer than 10 individuals.

"People think that with the computer system everything is going to be perfect and work perfectly, and sometimes it doesn't," Hedge says. Still, she says the court is considering returning paper records to case jackets.

G. Bradley Weinsheimer, the chief of the Superior Court division in the U.S. Attorney's Office in Washington, says his office worked with the court for 18 months preparing for the new system, and though there are some kinks, his office is dealing with them. "I don't think that it has caused any significant problems. It is more of a culture change than anything else." * * *

Hedge says the court had been looking to upgrade its case management system for years, but the problem had always been finding money to pay for it. With the passage of the Family Court Act in 2001, the money was finally available.

Implementation of the new system began in 2003 in the Family Court. The domestic violence unit followed a few months later. Paternity and child support cases, as well as probate and tax matters, went paperless in August 2004. Last year the system expanded to include small-claims court, landlord tenant court and civil actions.

One of the reasons the criminal division was last, Hedge says, was because of the complexities involved with coordinating a variety of government agencies. To prepare, court officials began meeting with the agencies in 2004, in order to give them enough time to get their own systems ready as well.

Despite intense planning, the rollout for the criminal division was anything but smooth. One week after the system went up, Hedge says "the perfect storm" hit. The server went down, and the mother board broke. In addition, a transformer blew in Judiciary Square, causing the court to lose power. For four days the division went back to using the manual system.

"There is always slowness in the beginning," says Hedge, adding that the problems were compounded by the events that followed the launch.

Posted by Marcia Oddi on Friday, March 31, 2006
Posted to Courts in general

Thursday, March 30, 2006

Ind. Decisions - Supreme Court decides school fees case [Updated]

In a ruling posted on its website late this afternoon, the Indiana Supreme Court has reached a decision in Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation.

The 19-page, 4-1 opinion was written by Justice Rucker, with Justice Sullivan dissenting (p. 18). Some quotes:

The question presented is whether the mandatory $20 student services fee imposed on students enrolled in a school corporation violates Article 8, Section 1 of the Indiana Constitution. We conclude it does. * * *

Where the legislature—or through delegation of its authority the State Board—has identified programs, activities, projects, services or curricula that it either mandates or permits school corporations to undertake, the legislature has made a policy decision regarding exactly what qualifies as a part of a uniform system of public education commanded by Article 8, Section 1 and thus what qualifies for funding at public expense. And of course the legislature has the authority to place appropriate conditions or limitations on any such funding. However, absent specific statutory authority, fees or charges for what are otherwise public education cost items cannot be levied directly or indirectly against students or their parents. Only programs, activities, projects, services or curricula that are outside of or expand upon those identified by the legislature—what we understand to be “extracurricular”—may be considered as not a part of a publicly-funded education. And thus a reasonable fee may be assessed, but only against those students who participate in or take advantage of them.

In this case the $20 fee that EVSC imposes on all students is deposited into its general fund and is used to offset the costs of such things as: a coordinator of student services, nurses, media specialists, alternative education, elementary school counselors, a drama program, a music program, speech and debate programs, academic academies, athletic programs, and a police liaison program. But either the legislature or the State Board has already determined that all such items are part and parcel of a public school education and by extension qualify for public funding. * * *

In essence, the very programs, services, and activities for which EVSC charges a fee already are a part of a publicly-funded education in the state of Indiana. However, this conclusion does not preclude EVSC from offering programs, services or activities that are outside of or expand upon those deemed by the legislature or State Board as part of a public education. The Indiana Constitution does not prohibit EVSC from charging individual students for their participation in such extracurriculars or for their consumption of such services. However the mandatory fee EVSC imposed generally on all students, whether the student avails herself of a service or participates in a program or activity or not, becomes a charge for attending a public school and obtaining a public education. Such a charge contravenes the “Common Schools” mandate as the term is used in Article 8, Section 1 and is therefore unconstitutional.

Conclusion. We reverse the judgment of the trial court and remand this cause for further proceedings.

From J. Sullivan's dissent:
Justice Rucker has produced a scholarly and erudite recounting of the history of Article 8, Section 1, of the Indiana Constitution from which we will all benefit. Particularly interesting (and important) is the Court’s account of the historical distinction be-tween “free schools” and “[s]chools . . . wherein tuition shall be without charge.” * * *

Because the trial court found that the things for which the fee was im-posed were things that, to use the Court’s formulation, were “outside of or expand[ed] upon those identified by the legislature” as part of the constitutionally commanded uni-form system of public education, I believe that even under the Court’s construction of Article 8, Section 1, the fee was permissible.

Here is an AP summary of the opinion.

The Nagy case was argued before the Supreme Court on Nov. 23rd, 2004. See this ILB entry from Dec. 11, 2004 and this one from Aug. 22, 2005 for background and links.

[Updated] INDIANA EDUCATION INSIGHT reports that "The 4-1 ruling is likely to send shock waves across the state, since many school districts have turned to charging students supplemental fees to offset budget deficits. The extra income has been used to pay for everything from the salaries of school librarians to the cost of fine-arts and alternative schools."

Posted by Marcia Oddi on Thursday, March 30, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Kokomo mayor has more public records issues

Kokomo mayor Matt McKillip, who last month lost a public records suit for his email list, now is being forced to reduce Kokomo's copying fees from $1.00 per page to $0.25 per page, according to a story today by Scott Smith in the Kokomo Tribune. Some quotes:

After refusing for more than a year to reduce Kokomo’s $1 a page copying fee to something more in line with most state and local government agencies, McKillip administration officials could do little but sit and watch as city council voted 6-0 March 13 to lower the fee to 25 cents a page, citing a provision in the Indiana Access to Public Records Act.

The law forbids government agencies from charging more than the actual cost of producing photocopies.

Agencies are not allowed to include labor costs. Mayor Matt McKillip said they should be.

“I think the statute’s wrong. I think we should be able to bill labor,” McKillip said Wednesday. * * *

Freedom of information advocates, including the Indiana Public Access Counselor’s Office and the Hoosier State Press Association, say if copying fees aren’t limited to the actual cost, government agencies would price public information out of reach.

Council members embraced the idea of lowering the fees earlier this year after a representative of Kokomo’s Fraternal Order of Police was charged $148 for a packet of city budget information.

“That’s pretty clear to me. We’re here to serve the public, not hinder them from getting records,” Council attorney Corbin King told the council in January.

In 1984, council delegated the responsibility for setting copying fees to the Board of Public Works and Safety, which set the fee at 20 cents a page. In November 2004, the McKillip-appointed board of works increased the fee to $1 a page.

In early 2005, the Tribune obtained an informal opinion from State Public Access Counselor Karen Davis, who said the $1 a page fee far exceeded what could be considered a reasonable copying fee under state law.

Davis said even 25 cents a page was too much in her opinion. Her opinions, however, are nonbinding and the board of works did not change the fee.

“State law doesn’t say we can’t charge $1 a page,” McKillip said Wednesday. “The public access counselor’s opinion isn’t binding.” * * *

Most county agencies charge 20 cents a page, and state agencies charge 10 cents a page. State law allows county recorders and county clerks to charge $1 a page for certain documents.

Indeed, as reported in this ILB entry yesterday, the General Assembly amended a law that now requires a county recorder to charge $1 per page for copying documents, to also impose a charge of $1 per page for printouts made using the recorders' publicly accessible computers and printers.

Posted by Marcia Oddi on Thursday, March 30, 2006
Posted to Indiana Government

Ind. Decisions - 7th Circuit issues one Indiana opinion today

In U.S. v. Todd Andrews (ND Ind., Theresa L. Springmann, Judge), a 13-page opinion, Chief Judge Flaum writes:

A jury found Todd Andrews guilty of bank robbery, 18 U.S.C. § 2113(a) and (d), and the use of a firearm during a crime of violence, 18 U.S.C. § 924(c). During his trial, the district court denied Andrews’ motion to suppress evidence seized from his home without a search warrant. After the close of evidence, Andrews moved for a judgment of acquittal on the firearms charge. The district court denied Andrews’ motion.

Andrews now appeals the district court’s decision to allow the government to introduce evidence seized at his home. He also appeals his conviction for the use of a firearm during a crime of violence.

For the following reasons we affirm the judgment of the district court.

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

Law - More on: Mass. SJC hears challenges on same-sex marriage ban for nonresidents [Updated]

Updating this ILB entry from Oct. 5, 2005, on the validity of a 1913 Mass. law that, according to the Boston Globe, "forbade out-of-state couples from marrying if their union would not be legally recognized in their own state," the Mass. SJC ruled today in a split decision that the law was valid.

Here is a report from the Boston Globe today:

In an eagerly awaited landmark decision, the state's highest court ruled today that Governor Mitt Romney and Attorney General Thomas F. Reilly had the authority to invoke a 1913 state law that Massachusetts used to block out-of-state gay couples from marrying here when same-sex marriage became legal in 2004.

The Supreme Judicial Court upheld the 1913 law when it was used to block same sex-couples from Connecticut, Maine, New Hampshire, and Vermont, because gay marriage is prohibited in those states.

The court, however, did not rule on the claims of the couples from New York and Rhode Island because state laws there are unclear about whether same-sex marriage is barred. The court sent the case back to Superior Court Judge Carol Ball, who upheld the 1913 law that was appealed, to determine on an "expedited basis" when same-sex marriage is legal in those two states. * * *

The Supreme Judicial Court said the state did not overstep its bounds, though a lawyer for eight lesbian and gay couples from outside Massachusetts had argued in October that the officials had dusted off a 48-word law that had "sat on the shelf unused for decades" in a blatantly discriminatory and unconstitutional ploy.

The law, whose constitutionality was defended before the court by Reilly's attorneys, says Massachusetts cannot marry an out-of-state couple if their marriage would be void in their home state. Romney had said he did not want Massachusetts to become the "Las Vegas of same-sex marriage."

Here is the breakdown of the various opinions:

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

BY THE COURT.

The orders denying the plaintiffs' motions for preliminary injunction in these cases are affirmed. A majority of the Justices also agree that, as to the plaintiffs who reside in Connecticut, Maine, New Hampshire, and Vermont, a judgment for the defendants shall enter in the Superior Court because same-sex marriage is prohibited in those States. As to the New York and Rhode Island plaintiffs, their cases shall proceed in the Superior Court, on an expedited basis, for a determination whether same-sex marriage is prohibited in those States. So ordered.

SPINA, J. (concurring, with whom Cowin and Sosman, JJ., join).

MARSHALL, C.J. (concurring, with whom Cordy, J., joins, and Greaney, J., joins in part)

GREANEY, J. (concurring).

IRELAND, J. (dissenting).

The case is Andra COTE-WHITACRE & others vs. DEPARTMENT OF PUBLIC HEALTH & others. A difficult to read West version is available here.

[Updated 3/31/06] The NY Times reports today:

BOSTON, March 30 — Massachusetts's highest court, which legalized same-sex marriage here two and a half years ago, ruled Thursday that gay couples who live in states where such marriages are prohibited cannot marry in Massachusetts.

But the ruling left open the possibility that gay couples from states like New York and Rhode Island that do not explicitly ban same-sex marriage might be able to marry in Massachusetts. * * *

Michele E. Granda, a lawyer for Gay and Lesbian Advocates and Defenders, which represented the plaintiffs, said that while her side had the option of asking the United States Supreme Court to hear an appeal, it was much more likely that her group would focus on the New York and Rhode Island cases, and would press the Massachusetts legislature to repeal the 1913 law.

A bill to repeal the law passed the State Senate overwhelmingly in 2004 but was not taken up in the House of Representatives, which at the time was led by a speaker who opposed same-sex marriage. It was recently reintroduced.

"This is a ridiculous, confusing and badly formed law," Ms. Granda said. "We live in a mobile society, and where someone lives today may have no meaning for them when they go on vacation next month or relocate a year from now."

From today's Washington Post coverage:
Gay rights activists expressed relief that the legal bedrock of the court's original decision remained intact -- namely, that Massachusetts gay couples have an unfettered right to marriage. And they pointed to national polls that report a growing number of Americans -- though not quite a majority -- support same-sex marriage. Those who say that they are strongly opposed have dropped from 42 percent to 28 percent in the past two years, according to the Pew Research Center.

The Washington state Supreme Court is expected to rule soon on the constitutionality of a state law prohibiting same-sex marriage. Two lower courts have struck down the law. Unlike Massachusetts, Washington has no law prohibiting nonresidents from getting married there if their own state prohibits it. * * *

The ruling left behind several ambiguities, not least what happens to the marriages of those from states such as New York and Rhode Island. Both states have no explicit ban on same-sex marriage, and New York Attorney General Eliot Spitzer has issued an opinion, now being challenged in state court, that New York should honor same-sex marriages performed elsewhere.

Nor is it entirely clear what becomes of the marriages of those who managed to slip under the legal deadline in those first days after the 2003 same-sex marriage ruling.

Posted by Marcia Oddi on Thursday, March 30, 2006
Posted to General Law Related

Ind. Decisions - Two today from the Court of Appeals

Christopher M. Matson v. State of Indiana - admissibility of evidence obtained as a result of a warrantless search and seizure. Affirmed.

In State Farm Mutual Insurance Company and Michael Cancel v. Francisco Gutierrez, a 30-page opinion (including a concurrring/dissenting in part opinion by Judge Bailey beginning on p. 23), Judge Najam concludes:

In sum, the trial court abused its discretion when it denied Cancel’s motion to bifurcate the issues for trial, and we remand for a new trial on Gutierrez’s negligence claim against Cancel. State Farm’s motion to bifurcate one month before trial was untimely. The trial court erred when it denied State Farm’s motion for judgment on the evidence regarding Gutierrez’s bad faith claim, and we reverse the award for bad faith and the punitive damages award. The trial court did not err when it denied State Farm’s motion for judgment on the evidence with respect to Gutierrez’s breach of contract claim, and we affirm the $17,221.31 award on that claim. While the attorney-client privilege is implicated in Gutierrez’s request for attorney Blaize’s opinion and testimony, State Farm waived that privilege when it disclosed attorney Blaize’s opinion on coverage in the redacted version of its Claim Committee Report submitted in response to discovery. Finally, we agree with Cancel that the trial court should have excluded evidence of his insurance policy, State Farm’s opinion on his liability, and his statements to State Farm. Affirmed in part, reversed in part, and remanded for a new trial.

BAILEY, Judge, concurring in part and dissenting in part. I respectfully dissent from the majority’s determination that the trial court abused its discretion by denying Michael Cancel’s untimely motion to bifurcate Francisco Gutierrez’s “liability” claim against Cancel and his “bad faith” and “breach of contract” allegations against State Farm. I likewise disagree with the majority’s decision to remand for a new trial on Gutierrez’s negligence claim against Cancel. Instead, I believe that the trial court acted within its discretion when it denied Cancel’s motion to bifurcate and, further, that the jury verdict of $160,000 was within the bounds of the evidence presented such that a new trial is unwarranted.

Posted by Marcia Oddi on Thursday, March 30, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - Yet again on: Home sellers lose with this new law

The ILB has had a number of entries on the recent changes to the real estate law, the most recent being this entry from March 24th.

Today, the Indianapolis Star, which has yet to publish a news story on the legislation, posts two letters on HB 1339, one from the author of the bill, Rep. Tim Harris, and one from the Indiana Association of Realtors. Both say that new language added by the bill, language which has been condemned by the FTC in other states, merely closes a loophole in the law. The Harris letter explains:

The problem was that the current real estate law contained a loophole that allowed licensees to avoid all of these responsibilities by entering into a contract. HB 1339 merely says that a subset of these duties may not be contracted away.
Exactly.

For a detailed analysis, see Advance Indiana's entry this morning. It concludes:

[Advance Indiana] hopes that the advertising the realtors purchase from the Star has not in some way affected its ability to provide unbiased news coverage to its readers. It is remarkable that a law which so dramatically alters the real estate legal landscape in Indiana has so far escaped mention on its news pages.

Posted by Marcia Oddi on Thursday, March 30, 2006
Posted to Indiana Law

Ind. Law - More on Indiana punitive damages law

The ILB was looking through the new Indiana laws this morning for the "fax law". Didn't find it, but found that the Indiana punitive damages law referenced in this ILB yesterday has been amended, effective July 1, 2006.

The changes appear in SEA 296. I'm not at all sure what they mean. For instance, what would the changes have meant if they had been in effect Friday when the $2 million Valpo verdict was announced? Apparently the attorney general is to be involved in "negotiating and compromising" punitive damages awards in local courts.

Posted by Marcia Oddi on Thursday, March 30, 2006
Posted to Indiana Law

Ind. Law - "Court might halt State Line curb" in Hammond/Calumet City dispute

Joe Carlson of the Munster (NW Indiana) Times reports today:

Officials in Calumet City are weighing their legal options to see whether the courts can be used to stop the construction of a traffic barrier along State Line Road.

Two Calumet City officials said Wednesday they had recently been made aware of a case in the 1990s in which Evanston officials forced a Chicago alderman to tear down a barrier down the center of Howard Street between the two cities.

Chicago Alderman Bernard Stone had a wall built between the cities in 1993, fearing increased traffic from a shopping mall built along the city border in Evanston.

Cook County Circuit Judge Albert Green eventually ordered the barrier removed, saying Evanston residents were entitled to unfettered and unimpeded use of Howard Street, news accounts of the ruling said.

Calumet City Alderman Nick Manousopoulos, whose ward includes State Line Road, confirmed that Calumet City officials are weighing their legal options regarding the traffic barrier that Hammond is supposed to start building in early April.

"Everything came into light when we saw what happened in Evanston, and where they had to take down the wall," Manousopoulos said. "Hate to do it, but we have to what's best for Calumet City and its residents." * * *

Hammond officials propose to build an 8-inch curb to cut off cross-state traffic between the cities in the 10 blocks south of the road known as 165th Street in Hammond and River Oaks Drive in Calumet City.

Neighborhood proponents say their quiet residential streets have been turned into dangerous thoroughfares by cross-border drivers cutting through to avoid the congested main routes designed to handle such traffic. * * *

Calumet City officials have steadfastly opposed Hammond's project. Since part of the northbound lane of State Line Road is in Illinois, the opposition has forced Hammond officials to plan on cutting down some boulevard trees and taking slices of private property for the project.

Calumet City spokesman Eric Schneider confirmed that city officials had been made aware of the Evanston case by a Hammond resident. Any legal action would need a motion from City Council, which meets again April 12.

Posted by Marcia Oddi on Thursday, March 30, 2006
Posted to Indiana Law

Ind. Law - "New Albany lawyer restores historic buildings in spare time"

"New Albany lawyer restores historic buildings in spare time" is the headline to a feature by Ben Zion Hershberg in the Louisville Courier Journal, complete with photos. Some quotes:

New Albany lawyer Stephen Beardsley loves sawdust and nails and even the hunt for old steel columns to match the ones in the downtown buildings he's restoring.

Every weekend -- and even on some vacations, like the one he's on now -- Beardsley said he works on the 19th century buildings he owns on Pearl Street near Market Street.

"It's redemptive work," he said, "not only for the buildings. It does something for the soul."

City Planner Scott Wood hopes Beardsley's work on the buildings he owns on Pearl Street -- built in the early 1870s -- also will do something for downtown.

Beardsley's office is on the first floor of the three-story building at the corner of Market and Pearl streets, and he lives on the second and third floors.

He also owns the two or three adjoining buildings on Pearl Street -- depending upon how you determine where one adjoining structure ends and the other begins.

"He wants to rehabilitate the storefronts to approximate their original appearance," said Wood, who as director of the city's Historic Preservation Commission saw Beardsley's renovation plans win approval from the agency late last year.

The commission must approve work on building exteriors in the city's historic districts, including the downtown district.

"I think visually," Wood said, "there is a real powerful effect" from restoring the facades in the city's central business district.

Posted by Marcia Oddi on Thursday, March 30, 2006
Posted to Indiana Law

Courts - More on: In Kentucky: "Take your opponents to court to get them removed from the ballot"

The Louisville Courier Journal reports today:

Jack Wood, a lawyer who's running for Jefferson County family court judge, wanted a judge to disqualify his competition.

He sued his two opponents, claiming they didn't file their papers correctly, in part because they wrote "10th" instead of "Tenth" to identify the court seat.

But in the end, all Wood got was a judicial scolding and an order to pay the legal fees of his opponents -- incumbent Paula Sherlock and Rebecca Swope Atkins.

In a ruling released yesterday, Jefferson Circuit Judge Barry Willett called Wood's lawsuit absurd and said it was "completely devoid of any factual or legal merit."

In fact, Willett noted that the only filing petition that wasn't clear was Wood's, since it appeared Wood checked boxes saying he was running for both circuit court and family court. * * *

Wood's attorney, Gary Tabler, promised in a state- ment to take the issue to the state Court of Appeals and, if necessary, the Kentucky Supreme Court, "where we have always believed the issues in this case would ultimately be decided." * * *

This isn't the first time Wood has sued to remove an opponent.

In the 2002 Democratic primary for the Metro Council's District 14 seat, Wood succeeded in having candidate Letty "Diana" Newton ruled ineligible. He argued in court that one of two people who had signed Newton's filing papers didn't live in the district.

Wood later lost in the primary.

For more, see this ILB entry from March 9th.

Posted by Marcia Oddi on Thursday, March 30, 2006
Posted to Courts in general

Wednesday, March 29, 2006

Ind. Decisions - More on: Supreme Court refuses to reinstate Anderson man's murder conviction

Charles Wilson of the AP has a good story today, published in this afternoon's Fort Wayne News-Sentinel, adding to the information in yesterday's ILB entry which quoted an earlier AP story about the U.S. Supreme Court's refusal Monday "to consider reinstating the conviction and death sentence of a man who spent more than 20 years on Indiana's death row."

Today's AP story explores: What may happen now? Some quotes:

INDIANAPOLIS - A decade-old affidavit that was key to overturning an Indiana death row inmate's murder conviction could be used to reinstate that sentence if prosecutors can prove the juror who signed it was misled.

The U.S. Supreme Court this week let stand a federal appellate court ruling that ordered the state to release Mark Allen Wisehart, retry him or hold a hearing to determine if jurors during his 1983 trial might have been swayed by a report that he had taken a polygraph test.

Madison County Prosecutor Rodney Cummings said Wednesday he would recommend the state attorney general's office pursue the hearing to determine if jurors were biased. * * *

During a postconviction relief hearing in 1994, attorneys presented an affidavit signed by one of the jurors saying that when she reported for jury duty she was told court would not be held that day because Wisehart was scheduled to take a polygraph test. The juror was not called to testify at the hearing.

Wisehart then appealed, but the Indiana Supreme Court said he had not shown any evidence that a single juror's knowledge of the polygraph test had swayed the entire jury.

However, the 7th U.S. Circuit Court of Appeals last year set aside Wisehart's conviction, saying the judge should have done more to investigate possible jury bias. The U.S. Supreme Court on Monday declined to hear the case.

Cummings on Wednesday raised questions about the authenticity of the affidavit and the tactics used by Wisehart's supporters during his appeal. He said the juror told his office she had signed a blank document, not a sworn affidavit. * * *

The new hearing would be a fact-finding session to determine if the affidavit - and the jury bias argument - were valid, Cummings said.

"The representations made on the affidavit were not accurate," he said, "so attacking that finding in a new hearing would be the way to go."

The Indiana Attorney General's office has 30 days in which to decide a course of action, said spokeswoman Staci Schneider. She said the office would consult Cummings before making a decision.

A fact-finding hearing would cause much less delay than trying to mount a new murder trial 20 years after the crime, Cummings said. If the judge decided the affidavit was invalid, Wisehart's attorneys likely would file another appeal and the case would again go before the state and federal courts.

Posted by Marcia Oddi on Wednesday, March 29, 2006
Posted to Ind. (7th Cir.) Decisions | Ind. Sup.Ct. Decisions

Courts - Not the Twinkie defense (nor "the dog ate my homework")

"Fla. Judge Blames ADHD for Hasty Arrests" is the headline to a brief AP story in the Washington Post today. Some quotes:

SANFORD, Fla. -- A judge who had 11 people arrested for accidentally going to the wrong courtroom told an ethics board he was "horrified" by what he had done and blamed the problem on attention deficit hyperactivity disorder.

Seminole County Judge John Sloop, 57, said he hadn't been diagnosed with ADHD before the incident but now takes medicine and sees a psychologist and psychiatrist.

"I will never be able to make amends," Sloop told the Judicial Qualifications Commission during a hearing to determine his future as a judge. * * *

The 11 traffic offenders had gone to the wrong courtroom the morning of Dec. 3, 2004. Sloop ordered them arrested for failing to appear, even though two judges and a bailiff told him the defendants were directed to the wrong place by faulty paperwork or deputies.

Sloop on Tuesday conceded that he ignored those warnings, ate a quick lunch, left the courthouse to run errands, then returned and began his afternoon hearings as if nothing had happened.

A member of the commission asked Sloop why he didn't apologized to the victims before he spoke with an attorney who advised him not to.

"I can't answer that," Sloop said. "I can only suggest I was struggling with an undiagnosed disorder."

Posted by Marcia Oddi on Wednesday, March 29, 2006
Posted to Courts in general

Ind. Decisions - 7th Circuit issues one Indiana decision today

In Brown, Robert v. Bartholomew School Corp. (SD Ind., David F. Hamilton, Judge), a 21-page opinion, Judge Ripple writes:

The Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., requires that states, as a condition of receiving federal funds, provide each disabled child within their school system a free appropriate public education. In this action, the parents of an autistic child, Robert Brown (“Bobby”), were unhappy with the “individualized educational program” (“IEP”) that their school district, the Bartholomew Consolidated School Corporation (“Bartholomew”), proposed for the 2002-2003 school year to address Bobby’s autism. Unable to settle their differences through negotiation, the parties proceeded before a state administrative officer, who ruled in favor of Bartholomew. Bobby’s parents appealed to the State Board of Special Educational Appeals (“BSEA”), which upheld the hearing officer’s determination. The Browns then filed this action in the district court, requesting reversal of the administrative decisions. After hearing new evidence on Bobby’s academic progress following the BSEA’s decision, the district court affirmed the BSEA. The Browns then filed this appeal. In the meantime, while this appeal has been pending, the Browns enrolled Bobby to a different school district and agreed to a new IEP for Bobby’s upcoming school year. As we explain further in the following opinion, this change in circumstances renders Bobby’s case moot. We therefore vacate the order of the district court and remand with the direction to dismiss this action on that ground. * * *

Accordingly, the judgment of the district court is vacated, and the case is remanded with direction that it be dismissed as moot. The parties shall bear their own costs in this appeal.

Posted by Marcia Oddi on Wednesday, March 29, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "State will take most of couple's $2 million verdict"

"State will take most of couple's $2 million verdict" is the headline to an AP story posted this morning on the Indianapolis Star site. Some quotes:

VALPARAISO, Ind. -- A couple whose home exploded following a natural gas buildup will receive a fraction of the $2 million a jury awarded them in their lawsuit.

The rest will go to the state, The Times of Hammond reported today.

A Porter Circuit Court jury Friday found Northern Indiana Public Service Co. was at fault for the blast that destroyed the Valparaiso home of Joan and Paul Ketchmark in November 2000. Jurors awarded the Ketchmarks more than $700,000 in compensatory damages and ordered the utility to pay $1.5 million in punitive damages.

But a state law passed 11 years ago requires 75 percent of all punitive damages to be paid to the state, said Jack Kramer, one of the attorneys who represented the couple.

So more than $1.1 million of the award will go to the Indiana Violent Crime Victim Compensation Fund, which assists victims or their dependents with medical and funeral expenses, lost wages and psychological counseling.

The remaining $375,000 will go to the Ketchmarks and their lawyers.

The law prohibits jurors from being informed about the law before deliberating. Kramer said he and the Ketchmarks were aware of the restrictions but decided to pursue punitive damages anyway to deter the utility from similar behavior. * * *

NIPSCO has asked Porter Circuit Judge Mary Harper to reduce the damage award by the amount already paid to the Ketchmarks by their insurance company. Attorney Paul Rake, who helped to defend NIPSCO last week, said the company has not yet decided whether to appeal the case.

Lawmakers enacted the restrictions on award money capped punitive damages at the greater of $50,000 or three times the amount of compensatory damages more than a decade ago to try to curb what critics said were excessive awards, said Porter Superior Judge Bill Alexa, a state senator at the time.

Here is the Munster (NW Indiana) Times story by Bob Kasarda, which the ILB somehow missed seeing earlier.

Punitive Damages in Indiana. The ILB has had a number of entries on Indiana's law. A good starting point would be this entry from May 13, 2004 (and the update from May 20, 2004), which includes this:

Indiana's punitive damages allocation statute, IC 34-51-3-6, provides that an award of punitive damages is to be paid to the clerk of the court, who is then to pay 75% to the State's Violent Crime Victims' Compensation Fund and 25% to the plaintiff. This law was enacted in 1998. The law was challenged and upheld by the Indiana Supreme court in the case of Cheatham v. Pohle (5/30/03). Access the Indiana Law Blog coverage of the opinion here.

Posted by Marcia Oddi on Wednesday, March 29, 2006
Posted to Ind. Trial Ct. Decisions

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

Updating this ILB entry from Feb. 24th based on a Terre Haute Tribune-Star story, the Trib-Star reports today, in a story by Joanne Hammer headlined "Marshall adult bookstore appealing federal court ruling requiring merchandise change," that:

Owners of an adult bookstore on the edge of Marshall, Ill., have appealed a federal ruling requiring them to change the store’s merchandise or move to another location.

Illinois One News Inc., which owns The Gift Spot near Interstate 70 and Illinois 1, filed a notice to appeal Thursday in a federal appeals court. The company filed a lawsuit against the City of Marshall in March 2004, stating the city’s zoning ordinance was unconstitutional because it restrained free speech, and that adult entertainment is protected by the First and Fourteenth Amendments. * * *

In February, a judge in the U.S. District of Court for the Southern District of Illinois ruled the city’s ordinance did not violate the Constitution because it did not limit free speech but only limiting the place where it can occur.

City officials maintained the store was in violation of a city ordinance that placed restrictions on where an adult business can be located. The ordinance was passed less than one week after the store opened in 2002.

The ordinance required an adult business to be more than 1,000 feet from a school, church or regional shopping center district, among other areas. It also allowed the City Council to place restrictions on the site, including lighting, parking and signage.

Under those restrictions, The Gift Spot would have the option of relocating to one of three areas containing 33 sites if two acres of land were needed, Judge J. Phil Gilbert said in the ruling.

Illinois One News argued in court documents that the business was legally operating when the city passed the ordinance restricting adult entertainment.

Posted by Marcia Oddi on Wednesday, March 29, 2006
Posted to General Law Related

Ind. Decisions - Court of Appeals issues three today

In Robert C. Welches v. State of Indiana, a 6-page opinion, Senior Judge Barteau writes:

Petitioner-Appellant Robert C. Welches appeals the trial court’s denial of his petition for leave to file a belated notice of appeal. We reverse and remand with instructions.

The following issue is dispositive: Whether the trial court erred in denying Welches’ petition for leave to file a belated notice of appeal. * * *

The trial court erred in ruling that Welches could have challenged his sentence in a post-conviction proceeding. As noted in Collins, the post-conviction court would have had no jurisdiction to consider the propriety of Welches’ sentence. Welches may appeal his sentence by filing a belated notice of appeal pursuant to P-C R. 2.

The State does not challenge the applicability of Collins to the present case. Instead, the State argues that Welches has failed to establish that he is entitled to relief under P-C.R. 2. In support of its argument, the State cites Beaudry v. State, 763 N.E.2d 487, 489 (Ind. Ct. App. 2002). * * *

The trial court erred in denying Welches’ petition on the basis that he could have raised the issue in a post-conviction proceeding. We reverse and remand with instructions that the trial court hold a hearing on Welches’ petition.

In David Lee Helms, Jr. and Darlene R. Helms v. Carmel High School Vocational Building Trades Corp., a 7-page opinion, Judge Najam writes:
David Lee Helms, Jr. appeals from the trial court’s entry of summary judgment in favor of Carmel High School Vocational Building Trades Corporation (“Carmel”) on Helms’s complaint for damages. Helms presents a single dispositive issue for our review, namely, whether the trial court erred when it concluded that Carmel did not owe Helms a duty to provide him with a safe worksite. We affirm. * * *

Here, Helms has not alleged that his injuries are the result of negligent hiring. Given the holding in Roberts, we conclude that Helms does not have a claim against Carmel. See Roberts, 829 N.E.2d at 953. The trial court did not err when it entered summary judgment in favor of Carmel.

In In the Matter of M.K. v. Kathy Keller, an 8-page opinion, Senior Judge Hoffman writes:
Petitioner-Appellant/Cross-Appellee Larry Keller (“Larry”) appeals from the portion of the trial court’s order denying him an award of attorney’s fees in a guardianship proceeding involving M.K. Respondent-Appellee/Cross-Appellant Kathy Keller (“Kathy”) appeals from the portion of the trial court’s order voiding a durable power of attorney in favor of Kathy, and the portion of the trial court’s order appointing Larry as guardian of the estate of M.K. * * *

In the case at bar, the trial judge was concerned about depleting M.K.’s estate by ordering payment of attorney’s fees from the estate given the apparent lack of cooperation among family members. While the decision to forego payment of any attorney’s fees was error, on remand the trial judge can adjust the attorney’s fees award to reflect a reasonable amount if necessary to prevent depletion of M.K.’s estate. But the trial judge is mandated by statute to order the payment of reasonable attorney’s fees. * * *

Kathy raises the issue of the propriety of the trial judge’s decision to void the power of attorney. She also challenges the trial judge’s decision to appoint Kathy guardian of the person and Larry guardian of the estate. Larry argues that the issues Kathy raises in her cross-appeal are moot. Kathy cites no authority for her contention that M.K.’s death had no effect on the cross-appeal issues she raises. * * *

In the present case, Kathy’s arguments are 1) that the trial court failed to give proper consideration or weight to the existing power of attorney, and that there was insufficient evidence in the record to support the trial judge’s decision to grant the petition, and 2) that the trial court erred by failing to give proper weight to M.K.’s wishes to have Kathy appointed guardian if necessary. Here, as in Powell, it would serve no purpose in light of M.K.’s death to pass on the sufficiency of the evidence presented below in the hearing on the petition to establish a guardianship. Kathy’s cross-appeal issues are moot.

Therefore, we remand this matter to the trial court for a determination of what constitutes a reasonable attorney’s fee. We do not decide Kathy’s cross-appeal issues because they present moot questions. Reversed and remanded.

Posted by Marcia Oddi on Wednesday, March 29, 2006
Posted to Ind. App.Ct. Decisions

Environment - "How Environmentalists Lost the Battle Over TCE"

"How Environmentalists Lost the Battle Over TCE" is the headline to a lengthy story today in the LA Times. The report begins:

After massive underground plumes of an industrial solvent were discovered in the nation's water supplies, the Environmental Protection Agency mounted a major effort in the 1990s to assess how dangerous the chemical was to human health.

Following four years of study, senior EPA scientists came to an alarming conclusion: The solvent, trichloroethylene, or TCE, was as much as 40 times more likely to cause cancer than the EPA had previously believed.

The preliminary report in 2001 laid the groundwork for tough new standards to limit public exposure to TCE. Instead of triggering any action, however, the assessment set off a high-stakes battle between the EPA and Defense Department, which had more than 1,000 military properties nationwide polluted with TCE.

By 2003, after a prolonged challenge orchestrated by the Pentagon, the EPA lost control of the issue and its TCE assessment was cast aside. As a result, any conclusion about whether millions of Americans were being contaminated by TCE was delayed indefinitely.

What happened with TCE is a stark illustration of a power shift that has badly damaged the EPA's ability to carry out one of its essential missions: assessing the health risks of toxic chemicals.

The agency's authority and its scientific stature have been eroded under a withering attack on its technical staff by the military and its contractors. Indeed, the Bush administration leadership at the EPA ultimately sided with the military.

After years on the defensive, the Pentagon — with help from NASA and the Energy Department — is taking a far tougher stand in challenging calls for environmental cleanups. It is using its formidable political leverage to demand greater proof that industrial substances cause cancer before ratcheting up costly cleanups at polluted bases.

The military says it is only striving to make smart decisions based on sound science and accuses the EPA of being unduly influenced by left-leaning scientists.

But critics say the defense establishment has manufactured unwarranted scientific doubt, used its powerful role in the executive branch to cause delays and forced a reduction in the margins of protection that traditionally guard public health.

If the EPA's 2001 draft risk assessment was correct, then possibly thousands of the nation's birth defects and cancers every year are due in part to TCE exposure, according to several academic experts.

"It is a World Trade Center in slow motion," said Boston University epidemiologist David Ozonoff, a TCE expert. "You would never notice it."

Posted by Marcia Oddi on Wednesday, March 29, 2006
Posted to Environment

Ind. Gov't. - Kentucky legislature too wrapped up in religion, Jewish leaders say

"Legislature too wrapped up in religion, Jewish leaders say" is the headline to a story today in the Louisville Courier Journal, of interest here because of the session-long turmoil over Judge Hamilton's ruling on legislative prayer. Today's story begins:

The leaders of Louisville's Jewish community have taken Kentucky legislators to task for what they see as an excessive amount of religious overtones to the legislative session and related events.

A letter signed by officers of the Community Relations Council, the public policy arm of the Jewish Community Federation of Louisville, cited as examples bills authorizing the posting of the Ten Commandments and the motto "In God We Trust" at the Capitol; a governor's prayer breakfast at which only Christians spoke; and a church group's survey asking legislators whether they had professed faith in Jesus.

"We believe that our elected officials should focus less energy on legislating religion itself, and should spend more effort on legislating good policies based on the fundamental moral values shared by all our citizens," the letter said in part.

H. Philip Grossman, the lead signee of the letter, said various events created "a whole feeling of perhaps marginalizing not just the Jewish community, but a lot of other communities, and not just Jews and other non-Christians but also certain Christian groups."

"We wanted to speak to that, because it seemed like it was just a freight train running through," Grossman said.

Posted by Marcia Oddi on Wednesday, March 29, 2006
Posted to Indiana Government

Ind. Decisions - Fenced deer hunting: "Court says lawsuit must run course"

Although the DNR has now given "final approval to a rule that bans deer hunting in high-fenced operations," as reported by the Fort Wayne Journal Gazette as quoted in this March 22nd ILB entry, a court case continued, as reported in this March 16th ILB entry. Today Grace Schneider of the Louisville Courier Journal reports:

Harrison Circuit Judge H. Lloyd Whitis issued a temporary injunction that prevents the Indiana Department of Natural Resources from ordering Whitetail Bluff, a Corydon-area deer-hunting enterprise, to close down while a lawsuit over the matter runs its course. * * *

Whitis observed that it's a "reasonable interpretation" that the animals [Rodney] Bruce buys for his property are not the property of the people of Indiana and therefore are not subject to regulation by the state.

Whitis ordered the DNR to stop enforcing an emergency temporary rule that would affect Bruce's ability to operate. He said the order wouldn't hurt the state financially, but if he didn't grant it, Bruce would suffer irreparable harm from lost bookings.

Whitis' ruling extends only to Bruce's business, not to other high-fence operations.

Bruce expects the case to continue for a year or longer. Meanwhile, he and other preserve operators expect to negotiate a settlement with the DNR.

Posted by Marcia Oddi on Wednesday, March 29, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Law - More on: Challenge to $1-per-page fee for printouts of county recorder's digital records

This Feb. 7th ILB entry discussed an issue that arose because county recorders were charging $1.00 per page for printouts of digital records. Apparently no office staff is involved in making these printouts, the customers look up the items on the county recorder's computers and then prints them out. A January 3, 2006 opinion of the Public Access Counselor, requested by a title company, concluded:

For the foregoing reasons, it is my opinion that the Clark County Recorder may charge a $1 per page fee for photocopying its records, but not for providing a printout of a digital record unless a statute authorizes a special copying fee for the latter copy.
Well, now there is such a law, according to this report today by Alex Davis in the Louisville Courier Journal. Some quotes:
The new law says that recorders in all 92 counties may charge a fee of $1 per page for copies, "whether or not the page is produced by a photographic process."

That wording cuts to the heart of a claim by Christopher Mason of Southern Indiana Abstract Co.

Mason filed a complaint Dec. 1 with the Indiana Public Access Counselor contending that state law authorizing copying fees didn't apply to printouts of digital records from computers.

The complaint focused on Clark County. But it was taken seriously by the Indiana Recorders Association, whose members annually collect hundreds of thousands of dollars in fees. It sought the clarification of state law.

Most copies today come from computers and companies such as Mason's are responsible for paying the bulk of the fees because of their extensive work with deeds and mortgage documents.

Clark County annually collects about $80,000 in fees. But Recorder Shirley Nolot stopped collecting most of the fees in early January, after the public access counselor issued an opinion that validated parts of Mason's complaint.

The ILB has tried to locate this amendment. Apparently it is buried in this 97-page bill, HEA 1102, at SECTION 50, beginning with the last line of p. 55 and continuing on. It amends IC 36-2-7-10(b)(5) to strike out the phrase "produced by a photographic process" from language that requires the county recorder to charge $1 per page for pages not larger than 8.5 by 14." According to this table, on p. 14, HEA 1102 SECTION 50 takes effect 7/1/2006. But the LCJ story continues:
It is unclear how much of its lost revenue Clark County will be able to recoup from the first three months of this year. But Nolot said she planned to try, even though the new law doesn't take effect until July.

She said she will send notices to major users of her office in early April, detailing how much money they owe.

Nolot said she has no hard feelings about the complaint, calling the language in the law an "oversight that someone picked up."

Interesting. One might assume that the county recorders could not begin charging $1 per page for printouts of digital records until July 1, 2006, and that it is the companies who have been paying the $1 per page in the past that might be looking to recoup.

Posted by Marcia Oddi on Wednesday, March 29, 2006
Posted to Indiana Government | Indiana Law

Tuesday, March 28, 2006

Law - More on: Those fighting over wine fees include Indiana law professor

Updating this March 22nd ILB entry, based on a story from the Sacramento Bee, is another story today from the Bee. Some quotes:

WASHINGTON - The state of Michigan has now settled with some but not all of the lawyers who helped overturn state bans on direct wine shipments.

The partial settlement means a $150,000 payday for former independent counsel Kenneth Starr's law firm, which helped secure last year's Supreme Court victory cheered by California wineries.

Starr's firm, Kirkland and Ellis, originally asked for $329,000 for its work on the wine-shipping cases. That request included $750 an hour for Starr's work. In the settlement filed Friday in federal court, the state agreed to $150,000. * * *

The fight over other fees, though, is exposing more behind-the-scenes legal maneuvering. In particular, new testimony is showing how Starr's controversial reputation both attracted and repelled those challenging the state bans on direct shipping, as well as how big names get tactically deployed in Supreme Court challenges. * * *

In their legal filing, Michigan officials credited Kirkland and Ellis with "establishing the legal theories and foundational structure of the Supreme Court merits brief, and providing legal advice and strategy" for the winning argument.

But while settling with Kirkland and Ellis, Michigan is now contesting a separate request for $1.2 million in legal fees filed by the attorneys who first brought the direct-shipping cases. Michigan contends Indiana University law professor James Tanford and his partners should be paid $371,000 instead of the $1.2 million originally asked.

In their latest legal filings, Michigan officials contend Tanford billed for "unnecessarily duplicative" work. Michigan officials also question some billing statements as incomplete and dispute Tanford's request for bonus fees based on the case's significance and complexity.

Fee disagreements like this are common. In the course of resolving the fee disagreements, though, new light is being shed on how lawyers operate. This includes Michigan's questioning of why former Stanford Law School dean Kathleen Sullivan was brought in to deliver oral arguments for the wineries.

"The hiring of Kathleen Sullivan to write the merits brief in the Supreme Court and to conduct oral argument was the result of political correctness, not legal necessity," Michigan officials claimed in a legal brief filed last week.

No one doubted Sullivan's supreme competence. The Harvard Law School graduate has a national reputation and had previously argued two cases before the Supreme Court.

Michigan officials, though, said Sullivan amounted to an unnecessary luxury. State officials contend the arguments could have been presented by Starr, except that some plaintiffs didn't want to be associated with the man whose five-year, $73 million investigation led to the impeachment of President Clinton.

Posted by Marcia Oddi on Tuesday, March 28, 2006
Posted to General Law Related

Ind. Courts - Video and audio system at Steuben County Courthouse

WLKI Angola reports today:

(ANGOLA) - Work continues at the Steuben County Courthouse on the installation of a video and audio system that will connect all three courtrooms with the Steuben County Jail. The system was installed last week in the Magistrate's Court. Work began last night in Superior Court and is expected to take place later this week in Circuit Court. The video and audio system is designed to keep prisoners in the jail for court hearings thus preventing the need to transport them to the courthouse. Part of the funding for the system came from a grant provided by The Steuben County Community Anti Violence Alliance.

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

Ind. Courts - Substitutes fill in for ailing judge

TheHuntington County Herald-Press reports today, in a story headlined "Substitutes fill in for ailing judge":

Local attorneys and judges have been taking their turns on the Huntington Circuit Court bench the last three weeks in the absence of Judge Mark McIntosh.

McIntosh has been hospitalized since March 3. He suffered an attack of pancreatitis, an inflammation of the pancreas, and is being treated at Lutheran Hospital, Fort Wayne.

Local attorney Tom Hakes, Superior Court Judge Jeffrey Heffelfinger, and Magistrate Jennifer Newton have all aided in handling McIntosh's case load. * * *

The 72-year-old McIntosh has served as judge in the Huntington Circuit Court for 18 years. He recently announced that he plans to retire at the end of this year.

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

Ind. Decisions - Three rulings today from the Court of Appeals

Elton Ross v. State of Indiana - appeal of conviction; affirmed

Richard V. Allen v. State of Indiana - sufficiency of evidence; affirmed

Kathy L. Whited v. Kenneth B. Whited - support issues; affirmed

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

Courts - Juror problems in federal trial of former Illinois Governor Ryan; thoughts on Indiana jurors

The Chicago Tribune reports today:

A federal judge on Monday excused two jurors from former Gov. George Ryan's corruption trial after the Tribune uncovered that both had apparently concealed arrest records during jury selection six months ago.

Following more than five hours of closed-door discussions with lawyers, U.S. District Judge Rebecca Pallmeyer said she hopes to replace the two jurors with alternates and restart the deliberations from scratch.

The judge said she had been conducting brief interviews of some of the jurors but still had to question additional jurors before she would make a final decision on how to proceed with the historic trial.

Pallmeyer made it clear she hopes to avoid a mistrial, referring to the "very significant investment, both public and private," that has gone into the marathon trial of Ryan and lobbyist Lawrence Warner.

In a related story, the Tribune reports how it discovered the juror problems:
After a 5 1/2-month trial and eight days of jury deliberations, the Chicago Tribune uncovered public records last week indicating that two jurors in the federal trial of former Gov. George Ryan gave false answers on their jury questionnaires.

Both jurors had checked boxes on pretrial questionnaires indicating that they had never been charged with a crime, but the Tribune found public records that appeared to contradict those answers.

Those jurors were dismissed from the trial Monday by U.S. District Judge Rebecca Pallmeyer.

While the information had the potential to disrupt the trial, Tribune editors recognized it could be even more damaging if it were revealed after the jury had reached its verdict. Nationally, other cases have been overturned on appeal when it was discovered after the verdict that jurors had been untruthful.

Because of this, the newspaper went to Chief Judge Charles Kocoras as soon as possible, both to continue the reporting on the story and to inform court officials of the records it had discovered. * * *

Reporters frequently interview jurors after a case ends and the jurors are dismissed from duty. In preparation for a verdict, Tribune reporter Ray Gibson was checking computer databases for information about the jurors. He was not looking for criminal histories but was interested in the jurors' political affiliations.

On the first screen of links to records for one juror, Gibson came across a 1995 felony conviction for aggravated DUI. The charge indicated the man had prior DUIs as well.

Police reporter David Heinzmann then located court and criminal records for the man, and Gibson and federal courts reporter Matt O'Connor matched information from those records with the answers given by the juror on his jury questionnaire. By Wednesday night, it was clear to the reporters and their editors that the records indicated that it was the same man. * * *

On Friday, Tribune reporters discovered a second juror, a woman, who could be linked through public records to an alias. Someone with that alias faced drug and other charges but was not convicted, records show. Again, the reporters went to the chief judge Friday afternoon as part of their reporting.

For more on the "how" see this Tribune Blog entry.

Also of interest is this story headlined "Spotlight can be uncomfortable for jurors." Some quotes:

The white-hot spotlight of the American judicial system can be uncomfortable, with lawyers, judges and sometimes the media prying into difficult and embarrassing moments. But defendants aren't alone in the glare. From the moment a jury summons arrives, potential jurors find their own histories under scrutiny.

"Has any member of your immediate family or a very close friend ever been the victim of a crime?" asks a typical juror questionnaire. "Have you ever been a party to any lawsuit?"

Experts say most jurors, facing threat of perjury, try to be honest. Others, they say, may be too embarrassed to answer fully, or think it doesn't matter. "I think some truly don't understand the gravity of the responses that they're giving. And others are being evasive, and we have no idea which it is," said Duke University Law School professor Neil Vidmar.

If they do have something in their past, "they may have said, `That's over and done with,'" he said. Officers of the court seldom know when a juror has stopped being truthful.

The slippery issue of juror honesty, one that has occupied legal scholars from university campuses to the U.S. Supreme Court, was cast into sharp relief Monday when U.S. District Judge Rebecca Pallmeyer dismissed two jurors amid deliberations over the fate of former Illinois Gov. George Ryan. A Tribune investigation found they may have lied on juror questionnaires.

Impact of Juror Secrecy. These Tribune stories caused me to look back at prior ILB entries on juror secrecy. The Tribune was checking out the jurors for a post-trial story when it uncovered the crimonal history information, using the juror list, and the questionaires they filled out. What if this information had not been available to the Tribune? As reported above:
While the information had the potential to disrupt the trial, Tribune editors recognized it could be even more damaging if it were revealed after the jury had reached its verdict. Nationally, other cases have been overturned on appeal when it was discovered after the verdict that jurors had been untruthful.
But juror questionaires and sometimes even the identity of jurors is not always available during a trial, and sometimes may be sealed even after the trial. In this entry from Dec. 31, 2004, the ILB quoted from a now no-longer-available Fort Wayne Journal Gazette editorial:
An Indiana Supreme Court rule that takes effect next week goes too far in protecting juror identity. The justices may have meant well when writing it, but the rule to forever seal juror identities places a shroud on a system that works best when all of the participants are open to inspection from the outside. * * *

The juror privacy provision does not restrict information obtained in open court. However, in Allen County and some other counties, jurors are referred to publicly by number, not name, thus further muddling public access. * * *

The new rules were designed to protect jurors from harassment. Juror safety is vital to the judicial system, but not to the subordination of the public?s greater interests.

Why should anyone care about this issue? The new jury privacy decree affects journalists, historians, advocates, researchers and anyone else who may want to ask jurors how a decision was reached. It is conceivable that jury tampering or a previously unknown connection between a juror and key player may not be revealed until an outside investigator lifts the veil. Undoing private deceit brings about reform and keeps down public cynicism and apathy.

The ruling illustrates an astonishing lack of prudence on the state Supreme Court?s behalf for shoving the court?s machinery into the shadows where only the chosen few get to question efficiency and equity. Jurors may be private citizens, but they dispense justice ? a public act with societal consequences.

No matter how good the intention, the jury privacy rule has an undesirable consequence: A cloak now covers a system that thrives best when transparent.

Hoosiers would be best served if the legislative and judicial branches work together on issues of public access to the courts.

Posted by Marcia Oddi on Tuesday, March 28, 2006
Posted to Courts in general

Environment - Editorial on proposed "Wells mega-farm"

The Fort Wayne Journal Gazette has a good, balenced editorial today on a proposed "Wells mega-farm."

To see the NPDES permit information for the New Holland Dairy, check here.

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

Environment - Kentucky partners fined $70,000 in wetlands banl case

The Louisville Courier Journal reports today, in a story by James Bruggers:

Two partners who failed to restore Nelson County farmland to a wetland have agreed to pay a $70,000 fine, federal authorities said yesterday.

The Army Corps of Engineers, which enforces wetlands protections under the Clean Water Act, and the U.S. Department of Justice, said in a January lawsuit that the two men had "failed in almost every aspect to actually establish an acceptable wetland as required."

At issue is something called a wetlands bank, where wetlands are restored and protected to offset wetlands losses from development elsewhere. Developers are sometimes allowed to buy credits in a wetlands bank instead of protecting or creating wetlands on their own.

In this case, the Wetland Bank of Kentucky, its parent Highview Engineering Inc., company president Darroll Hawkins, and the landowner of the Nelson County site, Jeffrey Henderman, had collected $100,000 from four commercial and industrial developments in southwestern Jefferson County, said Amy Babey, a corps manager.

The partners had agreed to restore bottomland hardwood forest on 11 acres along the Rolling Fork River near Boston to offset the loss of four acres in Jefferson County, she said.

Inspectors found the company didn't plant any oak, hickory or other trees, failed to finish soil grading, and did not submit data on ground and surface water levels as required, she said.

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

Ind. Decisions - Supreme Court refuses to reinstate Anderson man's murder conviction

The AP reports today, via the Louisville Courier Journal:

WASHINGTON -- The U.S. Supreme Court refused yesterday to consider reinstating the conviction and death sentence of a man who spent more than 20 years on Indiana's death row.

The 7th Circuit U.S. Court of Appeals in Chicago last year overturned the 1983 murder conviction of Mark Allen Wisehart of Anderson. It ruled that a trial judge should have taken steps to determine whether one juror's knowledge of a polygraph test had tainted the verdict.

The state attorney general's office had appealed to the U.S. Supreme Court, but the justices declined without comment to review the case. * * *

In an affidavit presented during a 1994 appeal hearing, one of the jurors said that she reported for jury duty and was told court would not be held that day because Wisehart was scheduled to take a polygraph test. * * *

The Indiana Supreme Court denied Wisehart's appeal, saying that he had not shown any evidence that a single juror's knowledge of the polygraph test had swayed the entire jury.

But the federal appeals court said that the trial judge should have questioned the juror to determine whether she or any other jurors had been influenced by the knowledge.

The appeals court overturned Wisehart's conviction and directed the state to release him, retry him or conduct a new court hearing to address the issue of jury bias. He is still being held at the Indiana State Prison in Michigan City.

Here is the 7th Circuit's March 23, 2005 opinion in the case of Wisehart v. Davis. Judge Posner's opinion concludes:
What happened in this case was not so egregious as telling the jury sub rosa that Wisehart had taken and flunked a polygraph test. But it was bad enough to require a hearing, however abbreviated, to determine what impact the news that he had taken the test had on the jury.

Back in 1994 it would have been relatively easy to call the juror as a witness and ask her to explain her reaction to learning about the polygraph test, though she might have forgotten because the trial had been conducted in 1983. It will be all the more difficult today to reconstruct an incident now more than twenty years in the past. But it was the state’s burden, given the juror’s affidavit, to present evidence that the jury’s deliberations had not been poisoned by the reference to Wisehart’s having been given a polygraph test.

The judgment must therefore be vacated with directions that the state release Wisehart, retry him, or conduct a further postconviction hearing addressed to the issue of jury bias.

Posted by Marcia Oddi on Tuesday, March 28, 2006
Posted to Ind. (7th Cir.) Decisions | Ind. Sup.Ct. Decisions

Ind. Law - Still more on: Marion County prosecutor candidate proposes ordinance to keep sex offenders out of public parks

Brendan O'Shaughnessy of the Indianapolis Star has a much expanded version today of the story he filed yesterday afternoon (scroll down two). The story examines the legal issues:

Legal challenges have been filed against a similar ordinance in Plainfield. To avoid lawsuits, the Indianapolis proposal breaks new ground by providing an exception: Sex offenders could visit parks and other gathering places in the company of another adult who is not an offender.

Even that raises constitutional questions, a representative of the American Civil Liberties Union of Indiana said, and a challenge is likely.

But relying on fines -- and allowing exceptions -- appears to be a unique approach, one expert said.

"I haven't seen that nationally, but I guarantee it will tend to take hold," said Charles Onley, a research associate for the Center for Sex Offender Management, a nonprofit funded by Justice Department grants. "There's been a trend to effectively remove sex offenders from the community." * * *

The city proposal, however, has flaws, said Ken Falk, the legal director of the ACLU of Indiana. Although narrower than the restriction in Plainfield, the ordinance is still not "qualitatively different."

One problem with both, he said, is the attempt to take away a person's right to use a public space without direct cause, such as drinking or lewd behavior. He said adding a civil punishment to a past crime is another problem.

Such restrictions can be counterproductive, Falk said, if offenders are given no options to reintegrate into society.

"Where does it end?" he said. "Ultimately, that's not helpful to the offender or society. We'll end up in urban areas with sex offender ghettos."

In Florida, for example, some communities try to foist sex offenders off on neighboring areas by enacting the toughest restrictions, said Onley, the national expert.

Another problem: After a law went into effect in Iowa in 2005 barring sex offenders from living within 2,000 feet of child-care centers and schools, the number of those who failed to register with authorities jumped dramatically.
"We don't want them offending again," Onley said, "but to totally ostracize them can drive them underground, and you end up with no accountability."

A side-bar accompanies the story, surveying how other states restrict sex offenders.

For background
, see this Dec. 14, 2005 ILB entry that looks at other Indiana ordinances and legal challenges.

Posted by Marcia Oddi on Tuesday, March 28, 2006
Posted to Indiana Law

Monday, March 27, 2006

Ind. Law - Outstanding report on Indiana wine shipping issues

Dan and Krista Stockman of the Fort Wayne Journal Gazette write a Saturday (either weekly or monthly) wine column for the paper, in addition to their regular reporter duties. Saturday's column, "Shipping law a ‘mixed bag’ for wineries" is an outstanding analysis of the new law and how it affects Hoosier wineries and consumers. I won't even try to summarize it. Access it here.

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

Ind. Law - More on: Marion County prosecutor candidate proposes ordinance to keep sex offenders out of public parks

Updating this Feb. 14, 2006 ILB entry ("Ind. Law - Marion County prosecutor candidate proposes ordinance to keep sex offenders out of public parks") is a brief story posted this afternoon on the Indianapolis Star site. Some quotes:

Sex offenders who have committed crimes against children would be banned from public parks and other gathering places under an ordinance that will be introduced in a City-County Council meeting tonight.

The ban would keep anyone required to register as a sexually violent predator on the Indiana State Sex Offender Registry to stay at least 1,000 feet from a public playground, recreation center, swimming pool, beach or sports facility when children are present. * * *

Mary Moriarty Adams, a council member, and Melina Kennedy, a candidate for county prosecutor, held a press conference this morning at a Near-Northside playground to announce the proposal. Adams said a constituent had complained about a problem with a registered sex offender living across the street from a Catholic school playground.

A Dec. 14, 2005 ILB entry surveys court challenges to similar bans.

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

Ind. Decisions - Office of Environmental Adjudication issues ruling on the UST Excess Liability Trust Fund

In an advisory today, Barnes & Thornburg writes about:

[A] recent administrative decision which could (positively) affect eligibility for reimbursement from the Excess Liability Trust Fund ("ELTF" or "Fund").

The General Assembly established the Fund to help owners and operators of USTs satisfy financial assurance obligations and pay for corrective action at eligible sites. The Administrator of the Fund denied our client's request for reimbursement because they were allegedly not in "substantial compliance" with the spill reporting rules. An Environmental Law Judge ("ELJ") recently issued an Order granting our client's motion for summary judgment and declaring that they are eligible for reimbursement from the Fund. The ELJ determined that certain regulatory eligibility requirements conflicted with the underlying statute and were invalid. The ELTF statute requires only substantial compliance with specific rules promulgated under the UST Statute. The ELJ determined that (i) our client substantially complied with the spill reporting rule and (ii) fully complied with every other applicable regulation.

This is an important victory for owners or operators of USTs because IDEM has denied requests for reimbursement at many other sites on the same basis. The exact number of those other sites is unknown. Given the potential multi-million dollar impact to the Fund, the Administrator has indicated that it will likely appeal the ELJ's Order.

Here is the March 15, 2006 ruling: In re Speedway Superamerica. Some quotes from page 5:
11. To the extent that IDEM contends that 328 IAC 1-3-3(a)(2) establishes a separate requirement of total compliance with the spill reporting rules under 329 IAC, the IDEM has overstepped the boundaries of its enabling legislation, IC 13-23-8-4. This statute requires only substantial compliance with the regulations adopted under IC 13-23 and the IDEM may not enlarge upon this grant of authority from the legislature by requiring complete compliance with the spill reporting rules.[1]

12. The Petitioner argues that the IDEM cannot require compliance of any degree with 327 IAC 2-6.1 as a prerequisite for ELTF eligibility. Under the plain meaning of IC 13-23-8-4(a)(1), substantial compliance with only those rules adopted under IC 13-7-20 (currently IC 13-23) is required for ELTF reimbursement. 327 IAC 2-6.1 (the “Spill Rule”) was adopted by the Water Pollution Control Board under the water pollution control laws (IC 13-18). As such, any rule under 328 IAC that attempts to require compliance with the Spill Rule as a condition for ELTF eligibility is invalid and the IDEM may not condition eligibility for ELTF reimbursement upon the owner or operator’s compliance with this rule. [2]
______________
1] It should be noted that amendments to this rule now requires only that the tank owner or operator demonstrate that it was “in substantial compliance with the spill reporting rule or law applicable at the time the release is discovered.”
2] Obviously, the IDEM may still, under its general enforcement authority, enforce the Spill Rule and require corrective action or the payment of a penalty if the owner or operator violates the rule.

Posted by Marcia Oddi on Monday, March 27, 2006
Posted to Ind. Adm. Bd. Decisions

Ind. Decisions - Court of Appeals issues four today

In Timothy Rood v. Mobile Lithotripter of IN., Ltd., Union Hospital and Mahmoud S. Saber, a 10-page opinion, Judge Barnes writes:

On October 29, 1999, Rood was injured as he was transported into a mobile lithotripsy facility to treat kidney stones. Rood was under general anesthesia at the time. On June 28, 2004, the medical review panel unanimously concluded that neither the anesthesiologist, Dr. Mahmoud Saber, nor Union failed to meet the applicable standard of care. Notwithstanding the opinion of the medical review panel, Rood filed a complaint alleging negligence against Dr. Saber and Union. * * *

Rood did not designate evidence specifically in opposition to Union’s motion for summary judgment and did not establish material issues of fact for trial. We affirm.

Eric Beaman v. Ramona Beaman - dissolution agreement

In State of Indiana v. Deborah Lefevers, a 12-page opinion, Judge Barnes writes:

Officer Swick’s conduct in this case violated neither the Fourth Amendment to the United States Constitution nor Article 1, Section 11 of the Indiana Constitution. The trial court’s ruling ordering suppression of evidence and dismissal of the State’s case was contrary to law. We reverse.
In Mahendra Singh v. Rashmi Singh, a 13-page opinion, Judge May writes:
Mahendra Singh (“Husband”) appeals the trial court’s denial of his motion for relief. He raises three issues, of which we find one dispositive: whether the trial court correctly interpreted an agreed entry that resolved spousal support issues following the dissolution of Husband’s marriage to Rashmi Singh (“Wife”). On cross-appeal, the State asserts the trial court did not have jurisdiction to address Husband’s motion for relief. We reverse and remand.

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

Courts - "Patent lawyers flock to East Texas court for its expertise and 'rocket docket' "

The Dallas Morning News had an interesting story Sunday headlined "Patent lawyers flock to East Texas court for its expertise and 'rocket docket'". Some quotes:

MARSHALL, Texas – In the quiet streets that surround the old Harrison County Courthouse, there's a bustle these days not easily noticed – even by the residents of this once powerful cotton and railroad town.

It's the bustle of briefcases.For the past five years, a steadily increasing stream of intellectual property lawyers from Boston, New York, San Francisco and all points Texas have filled the chain hotels along U.S. Highway 59, making the town of Marshall an unlikely hub in the lucrative universe of patent infringement litigation.

In private airplanes and rental cars, they converge during the workweek at the tiny federal courthouse wearing dark, expensive suits and carrying PowerPoint presentations to fight over millions in claims for and against big-name companies – Bausch & Lomb, Sony, Wells Fargo, DaimlerChrysler, to name a few – regarding soft contact lenses or telephone relays or data-compression files.

Patent litigation "is a big deal here, a really big deal," said Connie Ware, president of the Marshall Chamber of Commerce. "And we're glad to have it."

The town is so glad that it's refurbishing the 105-year-old Harrison County Courthouse to include a state-of-the-art courtroom for the federal court system to accommodate even more patent litigation; so glad that many of the local lawyers who once specialized in personal injury cases are turning their attention to intellectual property law.

In fact, patent litigation has become an integral part of the docket in other Eastern District courts, particularly Sherman, Tyler and Texarkana – and Marshall is hustling to maintain pace.

The numbers are impressive. From January 2000 through February 2006, there were 441 patent cases filed in the Eastern District. Of those, 60 percent were filed in Marshall.

But that surge of specialized litigation has also caused raised eyebrows in some legal circles. They wonder how an East Texas town of 25,000 – even if it was named after Supreme Court Justice John Marshall – came to harbor an oversized share of intellectual property disputes.

"When someone mentions Marshall, Texas, in a meeting, our litigators just shake their heads," said Carter G. Phillips, a frequent Supreme Court litigator in Washington, D.C. "Nobody understands how all those patent cases show up in such a small town."

My first thought went to Madison County, Illinois, which long held a reputation as a "plaintiff's paradise" -- see this ILB entry from August 24, 2003 and this one from April 17, 2004. But the reason is:
For more than 40 years, the Eastern District of Texas has had the reputation of maintaining a "rocket docket" – strict limits on legal wrangling and depositions, backed up by a firm trial date.

As a result, a case that might take three to five years to resolve in a slow-moving district like Dallas takes 12 to 15 months in Marshall.

Posted by Marcia Oddi on Monday, March 27, 2006
Posted to Courts in general

Courts - "If you think judges should be above petty politics, try not to watch them campaign this year."

"If you think judges should be above petty politics, try not to watch them campaign this year" is the subheading to a story in Governing this month. The main title is "Robe Warriors." Some quotes from this lengthy and significant article:

In a staggeringly short time, state judicial elections across the country have become vastly more competitive. The influx of special-interest money and influence, coupled with court decisions and legislation that gives judicial candidates more latitude to campaign, has drastically changed the ground rules. Judicial candidates, once perceived to be above the fray of partisan campaign issues, are no longer insulated from them. There’s no question that this grants them greater freedom of speech and allows for a judicial bench that reflects the opinions of a state’s citizens. But there are also signs that it is threatening the independence and impartiality of the state judiciary in America.

This election year will be a watershed for state courts. Nearly 80 Supreme Court seats will be on the ballot in 30 states, with hundreds of other judicial contests further down the ballot. The perennial battlefields of Ohio, Michigan and Alabama will attract a lot of attention. So may Tennessee and South Dakota, in which every sitting Supreme Court justice is facing a vote. But an even better state to watch may be Kentucky, where a recent constitutional change has dictated that all but two of the state’s 274 judges — circuit, district, appellate and supreme — must face a vote this year. As one court watcher puts it, “Kentucky is going to be as close to a free-for-all as you can imagine.” * * *

[V]oters will be able to find out more about the views of judicial candidates than they ever have before. That’s an important — and positive — evolution, says James Bopp Jr., a First Amendment lawyer who successfully argued against restrictive canons in the 2002 Supreme Court case. “Citizens will be more informed about their judicial philosophy, and the judges will be held accountable by the people.” Bopp, who also has argued successfully against the canons in other states, says the changes will help the candidates themselves. “They will now be able to fully participate in their elections,” he argues. “Before, they had to stand there and be silent and hear special-interest groups talk about them. Candidates can be criticized fairly, and they can be criticized unfairly. They should be able to respond.”

But critics say that lifting restrictions on judicial campaigning only leads to more special-interest money and more polarized judicial politics. Once candidates are allowed to voice their opinions, interest groups will do everything in their power to make sure they do. “Candidates are now being pressured by interest groups to take sides and engage in the kind of politicking you’d expect of a political race,” says Jesse Rutledge of Justice at Stake. “There’s this systemic pressure that just keeps growing and growing. It becomes a race to the bottom.”

That’s the fear some have in Kentucky. This past October, the state Supreme Court there relaxed its judicial campaign canons, in response to a lawsuit brought by the Family Foundation of Kentucky, represented by James Bopp. The result, says Justice Johnstone, is that the elections this year will be more caustic and more expensive. “Before,” he says, “there wasn’t very much special-interest participation because you couldn’t get your money’s worth. Judges couldn’t say whether they supported your position or not. Now, we’re going to see a great influx of special-interest participation.”

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

Posted by Marcia Oddi on Monday, March 27, 2006
Posted to Courts in general

Law - Another records case heads to Ohio's top court; what about Indiana?

Following up on the ILB March 21st entry titled "Two Ohio Supreme Court decisions regarding public records" is a report that another records case is heading to the Ohio Supreme Court. Per the Canton Ohio Repository (subscription required), this story:

COLUMBUS - The Ohio Supreme Court is being asked to decide how much public funding and public function is significant enough to make a private agency subject to the state’s public-records law.

On Wednesday, the court will hear arguments in a case pitting The Repository, one of three Copley Ohio Newspapers, against Nova Behavioral Health.

Before it collapsed last summer amidst allegations of cover-ups and financial mismanagement, Nova was Stark County’s largest mental-health care provider.

The newspaper sued in May 2005 after Nova refused to release the personnel record of Dennis Bliss, Nova’s highest billing counselor. It also refused requests for financial documents. * * *

“Nova is a public office (by law) and the personnel file is a record,” said Richard D. Panza, the Avon-based attorney for the newspaper. “(Nova) was organized for the purpose of serving the public. It performed what we perceive as a historical government function ... the treatment of the mentally ill, particularly those who are un- or under-insured.

“The fact that Nova is not in existence ... shows that when (the board) denied them their (public) money, they had to fold their tent.”

John B. Lindamood, a North Canton attorney who will represent Nova, said the former private, nonprofit agency got public money only “for contract services provided. We had no public connection. It was a totally independent board. We maintained our own facilities. We owned our own building.” * * *

“Their publisher has already determined it’s not about the personnel record,” Lindamood said. “They want the court to make new law in Ohio. I think their position is that they are entitled to anything, anywhere, anytime.”

But Panza said the case is about making clear a “very, very ambiguous issue” regarding the amount of public funding needed to make a private agency subject to the records law. “Here we have 87 percent of public funding,” Panza said.

He said a 1998 decision by the state high court “clearly held a private not-for-profit can perform public functions, which require them to produce certain public records.”

What about Indiana? The ILB has not checked the Ohio public records law to see whether it parallels the Indiana law. A similar question arose with the Gary Urban Enterprise Board last year. A 6/12/05 Munster (NW Indiana) Times story by Brendan O'Shaughnessy began:
INDIANAPOLIS | The new Gary Urban Enterprise Association board and its lawyer have slipped through a crack in open-door laws and are refusing to provide state-requested reports on the embattled nonprofit agency.

The new GUEA board has also not followed the requirements for reapproval laid out by the former oversight agency, the Indiana State Enterprise Zone Board, and has kept the nonprofit's actions and documents shrouded in secrecy.

Despite a 90-day time limit to complete and submit a financial audit, GUEA has not sent a final copy to the Indiana Economic Development Corp., the new oversight agency. The report was due March 10.

Here is an advisory opinion from the Indiana Public Access Counselor dated May 4, 2005 on the issue of when is an entity subject to the public records law.

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

Sunday, March 26, 2006

Law - Lawyers faint, become speechless, in stories today

"Lawyer Faints as Jury Acquits His Clients" is the headline to a brief story today in the LA Times. A quote:

Former Erie Mayor Rick Filippi and two of his business associates were acquitted on charges that they used inside information to benefit from real estate deals.

The verdict so overwhelmed defense attorney Leonard Ambrose that he fainted as the Washington County jury was announcing its decision on the first count against Filippi.

How Appealing points to this AP story today in the North Dakota Grand Forks Herald about an assistant attorney general who became speechless while presenting an argument before a panel of the 8th Circuit. Some quotes:
[North Dakota Assistant AG Charles] McGuigan handled most of the judges' questions after [North Dakota Assistant AG Dean] Haas became speechless early in his own presentation. After making a few remarks, Haas was able to speak only a few words at a time, standing silent at the lectern for about 20 seconds at a time before sitting down. He appeared to be stricken by stage fright.

"I've had quite a case of insomnia," Haas said. "I really apologize."
Haas retreated to a private room afterward, and a reporter was prevented from speaking to him. Bright said the lapse would not affect the case.

"You really had a good brief," [Appeals Judge Myron] Bright told Haas, referring to his court filing in the case. "You shouldn't be concerned."

The case itself is interesting:
The dispute is about North Dakota restrictions on out-of-state hunters that mainly affect duck and goose hunters, but also extend to pheasants and other types of game.

North Dakota gives resident waterfowl hunters a week's head start on the duck season, during which duck hunting by visitors is banned. The state charges visitors more for duck licenses and requires out-of-state hunters who own North Dakota land to buy a state license to hunt that land. Resident North Dakota landowners may hunt their property without buying a license.

Minnesota Attorney General Mike Hatch, U.S. Rep. Collin Peterson, D-Minn., and two Minnesota residents who own property in North Dakota challenged the laws in a federal lawsuit filed in Bismarck. U.S. District Judge Dan Hovland dismissed the case last June, and Minnesota appealed.

[Minnesota assistant AG Ann] Bildtsen argued Friday that the restrictions clash with the U.S. Constitution's protection for doing business among states, which is called the commerce clause, and its assurance that privileges extended to a person in one state also apply in another.

She said a property owner has a "fundamental right" to hunt his or her land. North Dakota's arguments rely on what Haas believes is each state's right to regulate hunting and fishing and to favor its own residents while doing so. Last year, Congress also approved a law saying it did not intend the commerce clause to apply to hunting and fishing regulation.

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

Saturday, March 25, 2006

Law - The Federal Register and the Indiana Register

The Federal Register turned 70 this month. NPR this evening had a great story on how the Federal Register came to be:

All Things Considered, March 25, 2006 · When the federal government lost a lawsuit because it couldn't find a law on the books, Supreme Court Justice Louis Brandeis took action. The Federal Register was born, 70 years ago this month. Register director Ray Mosley chats with Debbie Elliott.
Here is a paraphase of the beginning of the NPR report:
The story of how the Federal Register was born begins with the Hot Oil cases, where the government confused the oil companies as to what the rules were. Then it turned out the rules the companies were prosecuted under were not in effect. When the case got to the Supreme Court, the Court threw it out, and that became the impetus for the Federal Register.

At the time it was very hard to know what the various agencies and the President (who issues executive orders) were doing, because there was no central body compiling the rules and keeping track of them.

Don't miss listening. Here is the 1935 Supreme Court case that led to the development of the Federal Register, Panama Refining Co. v. Ryan. A quote from the ruling:
First. The controversy with respect to the provision of section 4 of article III of the Petroleum Code was initiated and proceeded in the courts below upon a false assumption. That assumption was that this section still contained the paragraph (eliminated by the Executive Order of September 13, 1933) by which production in excess of assigned quotas was made an unfair practice and a violation of the code. Whatever the cause of the failure to give appropriate public notice of the change in the section, with the result that the persons affected, the prosecuting authorities, and the courts, were alike ignorant of the alteration, the fact is that the attack in this respect was upon a provision which did not exist.
The NPR story also mentions a law jurnal article that was arranged to be published the same day as the oral arguments in Panama Refining. The title: "Government in Ignorance of the Law - A Plea for Better Publication of Executive Legislation." Written by Erwin N. Griswold, the article appears at 48 Harv.L.Rev. 198-213 (1934-1935). It begins:
ADMINISTRATIVE regulations "equivalent to law" have become important elements in the ordering of pur lives today. Many cases have reiterated the rule that executive regulations properly made have "the force and effect of law." The volume of these rulings has so increased that full, accurate, and prompt information of administrative activity is now quite as important to the citizen and to his legal advisor as is knowledge of the product of the Congressional mill. There should consequently be no need to demonstrate the importance and necessity of providing a reasonable means of distributing and preserving the texts of this executive-made law.
Earlier this month the Washington Post columnist Cindy Skrzycki, who regularly writes on regulatory matters, had an article headed "The Federal Register Turns 70." Some quotes:
Legal experts and historians who have studied the genesis of the register, modeled after England's Rules Publication Act of 1893, credit Supreme Court Justice Louis Brandeis for pulling the proper political levers to make it a reality.

He was reacting to two things: the federal government's dismal central recordkeeping system (there wasn't any) and a stunning increase in regulation generated by New Deal programs. Brandeis worried about the "bigness" of government and the need to tell the public what government was doing.

He expressed the sentiment eloquently in 1914: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."

Brandeis applied this philosophy when a case involving two oil companies came before the Supreme Court in 1934.

Embarrassingly for the Justice Department, the government was prosecuting the companies for failing to comply with a regulation that technically did not exist when they were charged. And no one could find the original. The government lost the case on a constitutional issue, but what was memorable were the blistering questions from the bench about how to find a copy of the rule.

So he pushed for publication of an article in the Harvard Law Review called "Government Ignorance of the Law -- a Plea for Better Publication of Executive Legislation." Then, Rep. Emanuel Celler of New York introduced a bill that became the Federal Register Act on July 26, 1935.

The register and the Code of Federal Regulations, the permanent, indexed collection of those rules, became the record and road map for completed rulemakings. With passage of the Administrative Procedure Act in 1946, the register also became the vehicle for opening executive-branch proposals for public comment.

[More] Want more on the Federal Register (yes, I am a FR junkie)? See this article, titled "Public notice, opportunity for public comment ensures openness in governance," in Washington File, a publication of the U.S. State Department.

The Indiana Register is now in Volume 29, meaning it is nearing its 30th year. But my understanding is that because of actions of the General Assembly and the Legislative Services Agency over the past two sessions, the Indiana Register will never complete its 29th Volume. The ILB will have more on this next week.

Posted by Marcia Oddi on Saturday, March 25, 2006
Posted to Administrative Law | General Law Related | Indiana Government | Indiana Law

Friday, March 24, 2006

Ind. Law - More on: U.S. Supreme Court's decision not to hear Hosty v. Carter impacts Indiana colleges

This March 2nd ILB entry quoted from a Fort Wayne Journal Gazette editorial that began:

The [U.S. Supreme Court] last week rejected a request from students at Governors State University to hear an appeal of Hosty v. Carter, a decision that limits First Amendment protections at public universities. The decision directly applies to only schools in Indiana, Illinois and Wisconsin, which fall under the jurisdiction of the 7th Circuit U.S. Court of Appeals, where it has the effect of subjecting university students to the same publication restraints as high school journalists.
Today the Chicago Tribune reports:
The Student Press Law Center in Arlington, Va., which defends the 1st Amendment rights of student journalists, has seen an upsurge in complaints about administrators trying to control student newspapers' content in the aftermath of the Governors State decision, Hosty vs. Carter.

The case began in 2000 when Patricia Harris, a dean at the university, ordered a now-defunct student newspaper, The Innovator, not to publish until officials could review each issue. The students, led by managing editor Margaret Hosty, sued, citing free-speech rights.

In its ruling, the 7th U.S. Court of Appeals suggested that colleges could declare their student publications non-public forums and, as at high schools, censor them.

In a brief filed with the Supreme Court, a coalition of free-speech groups called the decision "a grave threat to academic free speech" that "endangers the very existence of independent college media." In February, the court declined the case.

Legally, the precedent applies only to public colleges in Illinois, Indiana and Wisconsin--the three states covered by the appellate court. But nationwide, college editors and administrators are tinkering with their papers' policies to prepare for battles over content.

Press freedom is well-established in American law, but student newspapers operate in a relatively murky area. Campus publications often appear to be freewheeling, but some are largely supported by their schools, which might give the schools some control. Some student publications are funded independently and have free rein, and private universities that fund their papers are allowed to control content.

The battlefield is on the campuses of public universities that fund student newspapers. Do 1st Amendment principles mean administrators must keep hands off, or can a school argue that if it's paying, it gets some say over content?

In 1988, the Supreme Court ruled that high schools have significant censorship authority, but the court hasn't extended that authority to colleges.

In Illinois, Indiana and Wisconsin, at least, the answer might depend on whether a paper can convince its school to declare it a public forum. That would grant it editorial freedom and give the school some legal protection if someone sues.

"Much of the action in student press cases, in the 7th Circuit at least, will now focus on whether the publication is a public forum or a non-public forum," said Gary Feinerman, the solicitor general of Illinois.

The Fort Wayne Journal Gazette editorial surveyed the status of various of the Indiana colleges and universities papers.

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

Ind. Law - More on: Golf cart ordinance is an issue in Lebanon, and also other communities

Updating this ILB entry from March 2nd is a r4lease from the Indiana Dept. of Natural Resources:

Comment period for DNR golf cart rule enters final three weeks

Persons wishing to comment about a rule that is now being considered by the Natural Resources Commission concerning the operation of motorized carts on DNR properties, have about three weeks to do so. The comment period will close on Saturday, April 15.

The proposed rule would allow persons 65 years or older or persons with a Social Security Administration recognized disability to operate a motorized cart, within the campground area of DNR state parks and recreation areas. Persons wishing to use the carts in the campground after sunset would have to have appropriate lighting on the front and back of the cart. The carts would not be allowed elsewhere on the properties.

Further, a public hearing will be convened by the Natural Resources Commission Monday in Indianapolis beginning at 9:30 a.m. for persons wishing to make comment to the commission in person The hearing will be in Room 4, Indiana Government Center-South, 402 W. Washington St., in Indianapolis.

Anyone wishing to comment in writing or by phone may contact the Natural Resources Commission before April 15 in one of the following ways:

E-mail: slucas@nrc.in.gov
Mail: Natural Resources Commission, 402 W. Washington St., Room W272, Indianapolis, IN 46202, or
Phone: 317-233-3322

A copy of the proposed rule may be obtained here.

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

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending March 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 March 24, 2006.

There are 34 Court of Appeals cases listed this week.

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

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

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

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, March 24, 2006
Posted to Indiana Transfer Lists

Law - Essay on blogging lawyers

I just read this Wall Street Journal article in today's paper, and am happy to find it online in the Journal's free access area. The title: "After (Billable) Hours - Lawyers hoping to escape drudgery trade one form of verbiage for another." Some quotes:

Are all lawyers secret bloggers, frustrated writers or both? More important, should they keep their day jobs?

Lawyers and blogging go together like witches and stoning.* According to a survey conducted by blogads.com, lawyers ranked fourth among both readers and posters to blogs. Many of the best-known blogs, such as instaPundit.com, are run by lawyers. It's easy to understand why blogging attracts the J.D. set: Few professions combine as much creative talent with so much mind-numbing work.

Each year thousands of otherwise perfectly normal college graduates with perfectly worthless degrees in the humanities venture into law school in the hope of landing a paying job that requires no science and little math. Many have been encouraged by college counselors who have told them that law school will "keep their options open"--code for delaying the inevitable for another three years--and it pays better than academia.

Law schools feed this myth because they need paying customers, even as the members of their own faculty are refugees from the very firms to which they are sending their students. Upon graduation, however, many students find that the entry-level jobs they get are little more than glorified secretarial positions. Sure, they pay well, but how many paper clips can you remove from a stack of documents before you start questioning your entire existence?

In the dark hours, writing seems like a natural escape. It's what most lawyers do (when they're not reviewing documents), and though blogging is very different from drafting a prospectus, it's close enough to fool many lawyers into trading one form of verbiage for another.

* Of course this line on lawyers and blogging, and witches and stoning, was my favorite.

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

Ind. Gov't. - Move IDEM lawyers to AG's office?

Indiana Legislative Insight's hot-off-the-press new issue (subscription only, quoted with permission) reports that the AG has entered into a three-month contract:

with former State Securities Commissioner James Joven – a Republican candidate for Small Claims Court judge in Lawrence Township – to provide legal services regarding Environmental Law. According to the contract, the Governor’s Office, the OAG, and the Indiana Department of Environmental Management “are exploring ways to improve the legal services the State of Indiana renders in implementing and enforcing the State’s environmental laws,” and the Governor’s Office is assessing the “operation and structure of IDEM’s Office of Legal Counsel and OAG’s Environmental Section to assist in reorganization and consolidation of environmental legal services within the Office of the Attorney General.” Funding for the $30,000 contract comes from IDEM funds under a Memorandum of Understanding with the AG’s Office.

When IDEM was carved out of the former Indiana State Board of Health in 1985, a rudimentary legal department was created by statute. Until then, its attorneys were part of the OAG. IDEM attorneys handled cases through the administrative process, and then the AG’s Office assumed responsibility when they went to court . . . and that is still how the process works. As IDEM organization was beginning to shake out in its early years, a Democrat was elected governor, but the AG was still a Republican, which helped cement the separation.

One big problem, those who practice in the area tell us, is that both legal and policy issues (not to mention the occasional political consideration) are interweaved in almost every IDEM function and action: rulemaking, compliance assistance, enforcement, legislative issues, etc. That is why some favor retaining the existing demarcation, as long as the AG is a separately elected official, and regardless of his or her party. Others suggest that the current system makes it difficult for those who take cases to trial to develop comprehensive understanding of and expertise in environmental law, and that the familiarity attorneys in the AG’s Office would gain in working exclusively on environmental cases would benefit the system. * * *

Under the contract, Joven will review the relevant OLC and OAG organization, functions, work, budget, caseloads, operations, statutory provisions, missions, values, protocols, and the like, and issue recommendations for improving the areas and future funding and compensation.

Posted by Marcia Oddi on Friday, March 24, 2006
Posted to Environment | Indiana Government

Ind. Decisions - Court of Appeals issues four today

In Kevin G. Kocher v. Alva Lynn Getz, a 17-page opinion (including a dissent by Judge Riley beginning on p. 14), Judge Baker writes:

Appellant-defendant Kevin G. Kocher appeals the trial court’s judgment allowing appellee-plaintiff Alva Lynne Getz to execute the appeal bond to satisfy the unpaid balance of the judgment for personal injury damages previously entered. In particular, Kocher argues that the trial court erred in releasing the full amount of the appeal bond to Getz where Getz had agreed not to execute or enforce the judgment against Kocher but instead to attempt to recover the amount in a bad faith action against Kocher’s insurance company.

Finding, among other things, that Getz is bound by the agreement and is, therefore, not entitled to collect the full amount of the appeal bond, we reverse the judgment of the trial court. * * *

RILEY, Judge, dissenting
I respectfully dissent from the majority’s opinion, reversing the trial court’s decision. Instead of the lengthy analysis the majority engages in to reverse the trial court’s judgment, I only find one issue to be dispositive in the case before us: whether Kocher has standing to bring this appeal. The standing analysis focuses on whether the complaining party is the proper person to invoke the court’s power. Scott v. Randle, 736 N.E.2d 308, 315 (Ind. Ct. App.2000), trans. denied. The requirement assures that litigation will be actively and vigorously contested, as plaintiffs must demonstrate a personal stake in the litigation’s outcome and must show they have sustained, or are in immediate danger of sustaining, a direct injury as a result of the defendant’s conduct.

Richard Foster, M.D. and The New Castle Clinic, Inc. v. Forrest Owens - medical malpractice, affirmed

Samuel Reed v. State of Indiana - credit time denial, affirmed.

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

Ind. Law - Still more on: Home sellers lose with this new law

Two recent ILB entries, from March 19 and March 22nd, discuss HEA 1339, the new Indiana law that seems to eliminate any right of Hoosier citizens to use discount real estate brokers. In the March 22nd entry, I promised in a future entry to take a look at some of the documents on the FTC site.

The FTC and the DOJ on Oct. 25, 2005 jointly hosted a public workshop on "Competition Policy and the Real Estate Industry." Topics covered (here is the agenda) included:

Here, for the motivated reader, is the 268-page transcript of the workshop.

Here is an FTC press release from May 24, 2005 where the FTC and DOJ urge the Governor of Missouri to veto a bill (similar to the one that Gov. Daniels has signed in Indiana) "because it would change current law to restrict the ability of Missouri real estate professionals to offer customized real estate services." Here is the letter itself, and here are some more quotes from the release:

“The Commission urges Governor Blunt to veto House Bill 174, which would restrict the ability of fee for service real estate brokers to respond to the demands of Missouri consumers,” said FTC Chairman Deborah Platt Majoras. “The bill would decrease options for Missouri’s consumers and likely increase real estate service prices.”

In Missouri, home sellers have the option to purchase the service of listing their property on the local multiple listing service separately without also having to purchase the broker’s negotiation service. If House Bill 174 is enacted, however, real estate professionals entering into exclusive brokerage agreements with their clients would have to provide a state-mandated minimum service package that includes many duties associated with negotiating a property sales contract. Because most multiple listing services in Missouri require a broker to have an exclusive brokerage agreement before real estate professionals may list properties, Missouri consumers in those areas will be adversely affected by this proposed change in the law.

The joint FTC/DOJ letter said that the bill would likely harm competition in two ways. First, consumers who live in areas where real estate professionals are required to enter into exclusive brokerage agreements before they can post listings on the MLS will have to purchase these additional services and can expect to pay more. Second, without competition from fee-for-service brokers, the prices for traditional, full-service packages will likely increase.

“We have seen that consumers in Missouri and throughout the nation can save thousands of dollars on a single home sale by having fee-for-service options,” said R. Hewitt Pate, Assistant Attorney General in charge of the DOJ’s Antitrust Division. “If this bill becomes law, Missouri consumers will be denied the benefits of robust competition without obtaining any countervailing benefits.”

Interestingly, the ILB has seen no press coverage of this new Indiana law, other than the letter to the editor the Indianapolis Star published on March 19th.

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

Law - Wine shipping bill in Ohio gets FTC attention

A Federal Trade Commission press release yesterday related:

Staff of the Federal Trade Commission’s three bureaus – Competition, Consumer Protection, and Economics – together with the FTC’s Office of Policy Planning yesterday filed a comment with Ohio State Senator Eric Fingerhut, stating its support for Senate Bill (SB) 179, which would allow the direct shipment of wine to Ohio consumers from manufacturers either inside or outside the state, provided certain requirements are met. According to the comment, Ohio’s consumers would benefit from the increased competition the bill would provide, through access both to a greater variety of wines and many wines at lower prices.
The FTC letter itself is 11 pages long and well worth reviewing. See, for instance, section C on page 8, headed: "States That Permit Interstate Direct Shipping of Wine Generally Report Few or No Problems with Direct Shipments to Minors."

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

Ind. Courts - Five judges from Indiana named to top 500 list

A brief item in today's Indianapolis Star reports that:

An online legal site has named five Indiana judges -- including a Marion Superior Court jurist -- among the country's top 500.

The Lawdragon.com site, which provides legal referrals and legal news, determines the final list based upon peer review and its own independent research.

Marion Superior Court Judge Jane Magnus-Stinson was the only state trial court judge in Indiana who made the list.

Four other Indiana judges were honored, including Indiana Chief Justice Randall T. Shepard and Justice Frank Sullivan Jr. and U.S. District Judges Sarah Evans Barker and David F. Hamilton.

Here is the link to the four-color 60-page report from January 2006, complete with advertising. The 500 judges are in alphabetic order: Judge Barker - p. 8; Hamilton - p. 27; Magnus-Stinson - p. 36; Chief Justice Shepard - p. 50; and Justice Sullivan - p. 53. From the introductory article:
In compiling this guide, our staff of reporters contacted thousands of people throughout the United States: litigators, in-house counsel, prosecutors, law school professors, pro bono practitioners, bar association heads and users and providers of alternative dispute resolution services.

Our guide to the 500 best public and private judges in the United States includes federal and state court judges at every level, and specialized courts including federal immigration, tax, bankruptcy and international trade. In a testament to the high quality of the federal bench, approximately one-third of the Lawdragon 500 is federal, although they represent a small fraction — less than 1 percent — of the more than 30,000 members of the judiciary nationwide.

California and New York figure heavily at both the state and federal level, both because of their size and the national influence these jurisdictions wield. Our guide, however, includes judges throughout the country and at every level, such as U.S. District Court Judge Lloyd George, who is a legend in Nevada; Shirley Abrahamson, a pioneering female judge on the Wisconsin Supreme Court; Victoria Marks, a much admired state court judge in Honolulu; and Isaac Borenstein, a criminal court judge in Boston.

A unique feature of the Lawdragon 500 is that it encompasses the vast realm of alternative dispute resolution presided over by retired judges, arbitrators and mediators, of which there are more than an estimated 20,000 nationwide. Unlike their counterparts in public service, the best private judges are well paid and highly sought after for high-stakes, complex cases. Often working in specialized niches, they command respect because of their intimate knowledge of the law. They also have an unparalleled ability to break logjams and find solutions. Singing the praises of one well-known arbitrator, a repeat client says, “He’s not afraid to get down and dirty to get the job done.”

Several interesting facts leap from our research. The jurist with far and away the most votes was 7th U.S. Circuit Court of Appeals Judge Richard Posner, the law and economics guru from the University of Chicago, who also is known as the most prolific of writers. Difficult to categorize as either liberal or conservative, Posner nonetheless is cited for the brilliance of his opinions and his transcendent work in shaping antitrust law. Not far behind Posner are his colleagues on the 7th Circuit, Frank Easterbrook and Diane Wood, both of whom served on the Chicago faculty.

See also the About page.

An October 2005, 50-page publication listing "The Lawdragon 500 Leading Lawyers in America" has only one attorney from Indiana. The entry, on p. 3: "Robert Armitage Eli Lilly and Co. (Indianapolis, Indiana) Patent reform is near and dear to this drug company lawyer and leading intellectual property thinker."

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

Thursday, March 23, 2006

Ind. Courts - Court of Appeals to hear argument at Ivy Tech in Lafayette

The Carroll County Comet reports:

In an effort to bring the workings of the judicial system closer to the people it serves, the Indiana Court of Appeals will hear oral arguments in one of its cases at 10 a.m. on April 6 in the Ivy Hall NCHS Auditorium at Ivy Tech Community College in Lafayette. The case is In Re: The Matter of Transfer of Structured Settlement Payment of Roger Dunn. The public is invited to attend.

A three-judge panel will hear an appeal of the trial court's denial of a request to approve the transfer of settlement payment rights. Roger Dunn received a settlement in a workers' compensation case, and subsequently sought to transfer a portion of his structured settlement payment rights from Travelers Indemnity Co. to Rapid Settlements Ltd. pursuant to the Indiana Structured Settlement Protection Act. Travelers Indemnity objected to the transfer on the basis that the act applies only to tort claims. Rapid Settlements appealed the trial court's decision.

The case will be argued by the appellant's attorney, Stanly Callesano, and the appellees' attorneys, Craig Ulman and Frederick Roetter.

Posted by Marcia Oddi on Thursday, March 23, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Jackson judges will issue mandate [Updated]

This Seymour Daily Tribune story by Aubrey Woods is headlined "Judges will issue mandate." Some quotes:

BROWNSTOWN - Jackson County officials will face a mandate to fund operations of the county�s two courts.

Jackson Circuit Court Judge Bill Vance confirmed this morning that he would issue a mandate, but the timing of when that mandate would be issued is not certain.

"The problem is I'm running a court," Vance said.

The decision to issue the mandate, which would require county officials to find funding to maintain health insurance as it is for court staffs, follows a meeting between county commissioners and council members and the judges Wednesday night.

Changes to the health insurance were made by the county council a couple of weeks ago after the state Department of Local Government Finance ordered it to cut $2.2 million from the general fund budget. As part of the $1.3 million in cuts the council eventually made to meet those cuts, commissioners put together the change in insurance plans for the 177 county employees now insured. That plan gives employees two options - keep their premiums as they are and face larger deductibles and co-pays, or keep their policies intact and have their premiums doubled.

The county could save anywhere from $259,000 to $287,000, depending upon which option employees elect. Those employees have to make their choice today.

During Wednesday's meeting, the judges' attorney, Karl Mulvaney of Indianapolis, presented their case for maintaining the status quo for court employees as well as those employees with the probation department and drug and alcohol and community corrections programs.

"The Chief Justice (Indiana) and the Supreme Court (Indiana) have asked judges to do more with less," Mulvaney said. "That's the problem; these two judges have done that."

Mulvaney said the two judges have been facing increasing workloads that coupled with staff shortages make it hard for them to do their jobs properly. He said the judges could lose valuable staff if the problem is not corrected, and that they are obligated to ensure the court system works properly. * * *

Mulvaney also outlined the mandate process. Once a mandate is filed, the state supreme court will assign a special judge to hear evidence from both sides. The supreme court would then review those findings, and no action would be taken until that review is complete.

He added that it could be as much as a year before any decision is made. If judges win, the county would have to make up any back pay as well as paying attorney fees for both sides, Mulvaney said.

[Updated 3/27/06] The Fort Wayne News Sentinel writes today, in "Editorial Briefs":
When you’re locked in a delicate negotation, it certainly helps if you’re able to issue an edict supporting your side of the argument. A jurist in Jackson County – Circuit Judge Bill Vance – said he plans to issue a mandate ordering county officials to continue to fund court employees’ health-insurance at current levels. The county, ordered by the Indiana Department of Local Government Finance to cut its budget, came up with a plan to trim the benefits of employees – they could continue to pay the same premiums and accept higher deductibles and co-pays or keep the same benefits but accept higher premiums.

“We can’t do that,” the county’s judges say – it would cause employees to leave and disrupt their operations. But that’s also true for other county departments, say county officials, and we can’t treat one set of employees differently from others. Now it looks like the Indiana Supreme Court will assign a special judge to sort the whole thing out.

You suppose unions wish they had so much clout?

Posted by Marcia Oddi on Thursday, March 23, 2006
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues one today

In Larry D. Mitchell v. State of Indiana, a 6-page, 5-0 opinion, Chief Justice Shepard writes:

Larry Mitchell challenges his sentence for the robbery and felony murder of three people. Mitchell argues that the aggravators used to enhance his sentence were not properly found under the standards set forth in Blakely v. Washington, 542 U.S. 296 (2004). Mitchell did not need to make a specific Blakely challenge at trial to preserve the issue, and he is entitled to review of that question. We conclude the trial court’s sentence should be affirmed.

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

Ind. Law - Winemakers raise glasses to new law; future law challenges

"Winemakers raise glasses to new law" is the headline to a story by Jonathan Hiskes in the Brown County Democrat. Some quotes:

Brown County wine dealers are relieved, if not overjoyed, after a compromise between alcohol distributors and Indiana winemakers passed through the state legislature last week, ending a dispute that threatened to cripple the state’s budding wine industry.

In the words of Brown County Winery owner David Schrodt, Indiana’s 32 wineries “came out alive, but we sure got beat up.”

“It’s a huge relief,” he said of the deal forged by lobbyists for the distributing and winemaking industries. “It’s a convoluted, bureaucratic solution, but that’s the alcoholic beverage business. We’re supposed to put on a happy face about all of this—and it’s really not too bad—but the whole process was so discouraging.”

Mr. Schrodt said his winery in Gnaw Bone earns about 5 percent of its profits through shipping wine, so he had less at stake than others, like Plainfield’s Chateau Thomas Winery, which has a tasting room in Nashville.

“We were fighting for our lives,” said owner Charles Thomas, who testified along with other winemakers at the statehouse. “This was all brought on by the wholesalers. We were content with the way things were, making and selling our wine.”

Dr. Thomas said about 30 percent of his sales are from shipped wine, which was banned by the state Alcohol and Tobacco Commission for much of last year. Indiana wineries sued the commission last November over the sudden ban, but dropped the lawsuit as part of last week’s compromise.

Indiana Legislative Insight this week had this insight on future challenges:
Indiana’s wineries and wholesalers agreed upon a compromise measure for in-state shipping that Senate President Pro Tem Bob Garton (R) approved for consideration after securing a commitment from the nine Indiana wineries who filed suit over enforcement issues in Marion County Superior Court last November to drop the litigation.

More was brewing below the surface here, including the continued viability of the state’s three-tier distribution system. Further fermenting the debate was a March 8 speech by Indiana University law professor Alex Tanford to a National Alcohol Beverage Control Association legal forum. Tanford, a key player in the U.S. Supreme Court case attacking state restrictions on direct shipping of wine, told officials from states around the country that “We will keep suing you until the citizens of your state can go on the Internet and order wine from out of state” without any legal barrier. He also suggested that simply barring all direct shipments may not allow states to meet the standards imposed by the Supreme Court in Granholm v. Heald . . . and cautions that “What’s true for wine is likely to be true for beer,” and “What’s true for wineries is probably true for retailers.”

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

Ind. Courts - More on: Randolph commissioners rescind plan to demolish courthouse

Updating this ILB entry from Tuesday, titled "Randolph commissioners rescind plan to demolish courthouse," the Indianapolis Star today has a story by Richard D. Walton titled "Naked ambition pays off: Seniors save courthouse." A quOTE:

A vote earlier this week by Randolph County Commissioners to rescind their decision to raze the county courthouse is being credited in part to a calendar featuring apparently nude senior citizens. The seven women -- ages 76 to 94 -- posed to raise money to fight the demolition plans. "We all feel sure that thing would have been long gone if we hadn't done the calendar," said Eileen Herron, an 87-year-old Farmland resident known to calendar buyers as "Miss October."
Upon rereading Tuesday's Star-Press story, I think the Star's report may be a bit too optimistic -- it may not yet be time to breath easy.

Posted by Marcia Oddi on Thursday, March 23, 2006
Posted to Indiana Courts

Ind. Courts - More on: Deputy prosecutor faces contempt citation in dispute with Porter County judge

Updating yesterday's ILB entry on a dispute in Porter County Superior Court over pretrial diversion providers, Bob Kasarda of the Munster (NW Indiana) Times reports today:

VALPARAISO | It looks as though the county prosecutor's office and Porter Superior Judge David Chidester have found a way to settle a power struggle without the possibility of one of the deputy prosecutors going to jail on a contempt charge.

The two sides plan to waive the issue to the state appellate court, according to Chidester.

At issue is Chidester's decision to place a restriction on pretrial diversion agreements, which allow defendants to escape conviction on nonviolent misdemeanor offenses by paying fees and complying with treatment or other conditions. * * *

The judge now has his sights set on having the appellate court settle the core issue of whether he has any control over pretrial diversion agreements.

The move would involve prosecutors presenting a new criminal case that raises the same argument, Chidester said. The original criminal case that triggered the argument would await the ruling by the appellate court.

Porter County Chief Deputy Prosecutor Brian Gensel had the same understanding of the agreement and said the approach is not uncommon.

While he has defended the Valparaiso University alcohol awareness program, Gensel said his office will refrain from making any further referrals until the dispute is settled. "We're trying to get the whole thing resolved," he said.

Posted by Marcia Oddi on Thursday, March 23, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues three today

Susan Matteson v. Citizens Insurance Co., a 12-page opinion by Judge Sharpnack, concerns "the applicability of Matteson’s uninsured motorist coverage with Citizens to an accident that claimed the life of her husband, Bradley Matteson." The Court affirms the trial court’s grant of summary judgment to Citizens Insurance Company of America.

In Marshaun Buggs v. State of Indiana, a 20-page opinion, Judge Vaidik writes:

Following acquittals on felony murder and conspiracy to commit robbery and deadlocks on murder and attempted robbery, Marshaun Buggs1 was retried and convicted of murder and attempted robbery. Buggs appeals arguing that double jeopardy principles barred his retrial, that his sentence is inappropriate and disproportionate when compared to his co-defendant’s sentence, and that the trial court erred in denying his motion for change of judge. Although principles of double jeopardy did not bar Buggs’ retrial, we find that the evidence does not support his conviction for attempted robbery; therefore, we reverse that conviction. In all other respects, we affirm the trial court.
In Michelle A. McDonald v. James D. Lattire, a 16-page opinion, Judge Crone concludes:
To summarize, Lattire met his burden of demonstrating via his designated evidence that the undisputed material facts negate at least one of the elements (breach) essential to a negligence claim. Upon receiving Lattire’s motion for summary judgment and accompanying affidavit, McDonald was free to depose Lattire in the hopes of uncovering contradictory testimony. Instead, McDonald elicited no testimony that Lattire actually saw Elgar, knew he would not stop, had time to take evasive maneuvers, yet did nothing. Indeed, there was a total absence of evidence, expert or otherwise, that Lattire failed to maintain a proper lookout.3 Therefore, we conclude that summary judgment was appropriately granted. To conclude otherwise would be to erroneously imply that the issue of whether someone maintained a proper lookout under any set of circumstances would always create a question of fact. That cannot be. Instead, this particular case falls within the small percentage of negligence cases appropriately decided on summary judgment.

Posted by Marcia Oddi on Thursday, March 23, 2006
Posted to Ind. App.Ct. Decisions

Wednesday, March 22, 2006

Ind. Law - More on: Home sellers lose with this new law

Here are several items updating this ILB entry from March 19th on HEA 1339, the new law that seems to eliminate any right of Hoosier citizens to use discount real estate brokers.

First, I've taken a look at the introduced bill to see whether the anti-consumer language may have been slipped in at the last minute. Not so -- it was there from the beginning.

Second, the Action List shows that the bill passed the House 56-38 and the Senate 49-0. So there was some opposition in the House -- I haven't watch the tapes from Jan 23rd and 26th to see if they provide a clue to why the bill got 38 "no" votes in the House.

Third, I've wondered why Governor Daniels signed this bill so quickly. My take on the Governor had been that he was for business competition, not against it.

Fourth, Gary Welsh of the blog Advance Indiana has this afternoon posted a lengthy entry on this new law and how it affects Indianapolis discount brokers -- I recommend it to you.

Fifth, take a look at these two ILB entries from Sept. 8th and Sept. 9th, 2005, including this quote from the Washington Post:

In the lawsuit, filed in the U.S. District Court in Chicago, where the Realtors have their headquarters, the government alleged that the association -- particularly its traditional broker members -- has sought to maintain a "policy that restrains competition from brokers who use the Internet to more efficiently and cost effectively serve home sellers and buyers."

Finally (for now), if you have read this far, spend some time on the Federal Trade Commission website. See particularly this information about a Public Workshop held Oct 25, 2005, by the FTC and the Dept. of Justice. The public workshop was entitled “Competition Policy and the Real Estate Industry.”

The workshop will focus on issues related to the competitiveness of the residential real estate industry, and will cover topics such as multiple listing services, online “virtual office Web sites,” discount and limited-service brokers, and minimum-service requirements. The event is open to the public and there is no fee for attendance. [my emphasis]
MORE COMING after I review some of these documents -- many of them deal with the topic of the new Indiana law. For instance, this release from the FTC and Justice references a letter sent to a Michigan Senate Committee last fall. The release begins:
The Federal Trade Commission and U.S. Department of Justice (DOJ) issued a joint letter today urging the Michigan Senate Committee on Economic Development, Small Business, and Regulatory Reform to reject House Bill 4849 as currently drafted, as the legislation would reduce consumer choice and cause Michigan consumers to pay more for real estate brokerage services. According to the letter, the bill would change current law to restrict the ability of licensed real estate brokers to offer consumers the option to pick the specific brokerage services they want.

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

Law - Those fighting over wine fees include Indiana law professor

Thanks to How Appealing, here is a link to a story in the Sacromento Bee headlined "Money fight follows wine victory: Winning lawyers in Supreme Court case battle over their fees." Some quotes:

WASHINGTON - A legal triumph for California wineries has soured into a nasty wrangle among lawyers, as one-time allies turn their courtroom claws on one another.

Last year, the lawyers persuaded the Supreme Court to remove barriers blocking interstate wine shipments. This year, teammates no more, these same lawyers have battled with increasing vitriol over hundreds of thousands of dollars in attorneys fees.

"Nothing like money to make people fight, I guess," James Tanford, a professor at Indiana University School of Law, said Tuesday.

Tanford and his partners are seeking nearly $1.2 million, after prevailing in the wine direct-shipment case that took more than six years to resolve. Separately, the law firm Kirkland and Ellis asked for $329,000.

Today, the state of Michigan could announce an agreement over at least some of the disputed fees. "We are still negotiating with the firms," Nate Bailey, spokesman for the attorney general's office, said Tuesday.

But the fight unfolding in federal court in Michigan is about more than money. Personal reputations are also at stake. Already, the dispute has shed light on some of the legal profession's dark corners: the magic of billable hours, the maneuverings of well-known lawyers and the high price of victory at the Supreme Court. * * *

Until now, though, the arguments have just kept getting sharper. Tanford's former allies at Kirkland and Ellis, for instance, now characterize Tanford as embittered because former Stanford Law School Dean Kathleen Sullivan was chosen instead of him to make the high-profile oral argument before the Supreme Court in December 2004.

"Never able to accept his diminished status in the Supreme Court proceedings, Mr. Tanford now seeks to elevate his role well beyond what his performance merited," Kirkland and Ellis declared in a Dec. 28, 2005, brief. "Unfortunately, Mr. Tanford's desire for unwarranted recognition comes at the expense of K&E, the law firm primarily responsible for the Supreme Court victory."

"I would have liked to have made the arguments," acknowledged Tanford, who ended up assisting Sullivan during the hourlong sessions, "but it was a decision made by our clients. There was a lot at stake, and it made the clients feel a little more comfortable."

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

Ind. Decisions - Judge Barker rejects fired teacher's claim

An AP story today in the Indianapolis Star reports:

BLOOMINGTON, Ind. -- A teacher who claimed she was fired for talking in her classroom about peace activism plans to appeal a federal judge's ruling that the school district did not violate her constitutional rights.

Deb Mayer sued Monroe County Community Schools in 2004 after she was fired from her job at Clear Creek Elementary School. Mayer said Monday she thinks she needs to fight the ruling on behalf of other teachers. "I think the judge really got the law wrong. Actually, she just ignored the law," Mayer said. "I believe, and my attorney agrees, that the law says a teacher doesn't have to check her rights at the schoolhouse gate."

A school district administrator said officials were pleased with the ruling by U.S. District Judge Sarah Evans Barker in Indianapolis. "We were also gratified that the court agreed that Ms. Mayer's classroom speech had nothing to do with her termination and that schools have the right to oversee the type of instruction taking place in their classrooms," said Pam Sklar, the district's human resources director.

The district had maintained that Mayer's contract was not renewed because of complaints about her teaching skills, discipline style and interaction with students and parents.

Here is a copy of Judge Barker's 39-page opinion in Mayer v. Monroe County Community School Corp., 3/10/06.

Posted by Marcia Oddi on Wednesday, March 22, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Deputy prosecutor faces contenpt citation in dispute with Porter County judge

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

VALPARAISO | One of the county's deputy prosecutors faces the potential of going to jail in a power struggle between her office and Porter Superior Judge David Chidester.

The dispute centers around the judge's decision to place a restriction on pretrial diversion agreements, which allow defendants to escape conviction on nonviolent misdemeanor offenses by paying fees and complying with treatment or other conditions.

Chidester ordered Jan. 17 that the prosecutor's office shall no longer refer offenders from his court to an alcohol education program operated by Valparaiso University.

Prosecutors shall limit their referrals to the one-day programs offered by either Porter County PACT's Porter County Alcohol and Drug Offender Service or the privately operated Fresh Start Counseling Service, according to the order. Chidester voiced concerns about the quality of the university's alcohol program.

Porter County Deputy Prosecutor Michelle Jatkiewicz submitted a pretrial agreement Tuesday that called for the defendant, Jennifer Hagerman, to take part in the Valparaiso University alcohol program as part of the response for being charged with public intoxication and false informing.

Chidester said when he rejected the agreement, Jatkiewicz challenged his authority by filing a motion seeking his approval of the document. She argued that prosecutors have sole discretion over the pretrial diversion program and quoted an appellate court ruling that she believes upholds that view.

Jatkiewicz also pointed out that the court had ordered another defendant to take part in the university's alcohol program on March 7. Chidester later said he did so because it would have been difficult for the defendant to travel to the other programs.

Chidester responded by holding a hearing Tuesday afternoon requiring prosecutors to show why Jatkiewicz should not be held in contempt of court for violating the court's order.

During the short hearing, Porter County Deputy Prosecutor Matthew Frost, who represented Jatkiewicz, asked the judge to replace himself because of his role in bringing the complaint.

Chidester said he agreed considering Jatkiewicz faces jail time if found guilty of contempt. He is expected to either appoint a special judge or name three candidates from which the parties will choose.

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

Ind. Courts - Federal Lawsuit against Judge Julie Cantrell dismissed

The Munster (NW Indiana) Times reports today, in a story by Bill Dolan. It begins:

CROWN POINT | Lake Superior Court Judge Julie Cantrell won her battle with a former bailiff who wanted to drag her into court over the loss of his job.

U.S. District Magistrate Andrew Rodovich dismissed a 2004 lawsuit by Dennis Chinn, who claimed Cantrell defamed and wrongly terminated him over allegations Chinn demanded a criminal defendant pay him attorney fees.

Rodovich states in his 10-page opinion that the suit was defective because Judge Cantrell is protected from this suit by judicial immunity and Chinn waited too long to file suit.

The lawsuit arose from allegations Chinn solicited money from a person charged in Cantrell's court with a minor crime.

Posted by Marcia Oddi on Wednesday, March 22, 2006
Posted to Ind Fed D.Ct. Decisions

Ind. Law - High-fenced hunting ban gets OK

Updating yesterday's ILB entry based on the Fort Wayne Journal Gazette story titled "High-fenced hunting ban could get OK," the report today from the same paper is that it did get the ok. "DNR signs off on ban of high-fence deer hunts" is the headline to the story by Niki Kelly. Some quotes:

The Natural Resources Commission on Tuesday gave final approval to a rule that bans deer hunting in high-fenced operations.

The proposal is intended to clarify ambiguities in current regulations and establish new ones regarding what some refer to as canned hunting – or paying to shoot deer behind fences.

It could take an additional 60 days for the rule to take effect as it has to be approved by Gov. Mitch Daniels and sit for 30 days in the secretary of state’s office, according to Kim Brant, spokeswoman for the Department of Natural Resources.

For the text of the proposed rule document, see the Indana Natural Resources Commission page. The document is in MS Word and is part of a Hearing Officer's Report that is around 80-pages long.

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

Ind. Law - Daniels signs gun bills

The Evansville Courier& Press reports today, in a story by Jennifer Whitson:

Indiana Gov. Mitch Daniels signed two bills pushed by gun-rights advocates in a brief Statehouse ceremony Tuesday.

One change, effective July 1, will allow gun owners to get a lifetime carrying permit. Under current law, if gun owners want to carry their guns, they must apply for a carrying permit, pay a $25 fee and renew the permit every four years. * * *

Gun rights advocates backed the bill and said Indiana would be the first state in the nation with a lifetime carrying permit. Several proponents, including roughly 35 people from 2nd Amendment Patriots in Southwestern Indiana, came to the Statehouse for a Tuesday signing ceremony with the governor. * * *

The second bill adds a provision on using force for self defense, stating that a person does not have a duty to retreat before using reasonable force to protect himself or another person who is in danger.

The amended law also now states that a person does not have a duty to first try to flee before using deadly force to defend against someone breaking into his home or car.

Representatives from national gun rights groups also attended the ceremony. Daniels said that with the deadline for signing bills into laws, he can only spare enough time to do ceremonies for the most noteworthy.

"For those of us who believe the 2nd Amendment means exactly what is says ... this is exactly the kind of step we need to take," Daniels said.

The Indianapolis Star today has a front-page story by Bill Ruthhart, headlined "Lethal force in self-defense is legal, Indiana law says: State makes clear: Retreat unnecessary in face of threat." Some quotes:
Indiana has become the third state to join an emerging national debate on self-defense, making clear that people have the right to use deadly force when threatened without first trying to back away.

Gov. Mitch Daniels on Tuesday signed House Enrolled Act 1028, which says Hoosiers do not have to retreat before using deadly force to prevent serious bodily injury to themselves or someone else. More than a dozen other states are considering similar legislation.

The change may be largely symbolic. Unlike in some states, Indiana did not previously require residents to retreat before using a gun or other deadly weapon.

The new law, however, clarifies state law and prevents courts from determining that Hoosiers should run before using a gun.

"This bill would eliminate any duty to retreat that a court might decide is necessary," said Rep. Eric Koch, R-Bedford, the bill's author. "We're only one of three states to have put it in statute to make sure that doesn't change."
The legislation puts Indiana in the middle of a burgeoning national debate. Critics say the laws can encourage gun violence.

The Brady Campaign to Prevent Gun Violence has labeled such legislation "shoot-first" bills. Peter Hamm, a campaign spokesman, said Indiana's bill is "horrible" and "a big mistake." * * *

The National Rifle Association has lobbied across the country for the legislation. The group calls them "Stand Your Ground" bills. Florida and South Dakota have passed the measure, while 15 other states are considering similar legislation, according to the NRA.

For background, see this ILB entry from March 18th.

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

Ind. Decisions - Court of Appeals issues two today

In Tammy Staten v. State of Indiana, a 4-page opinion, Judge Najam writes:

Tammy Staten appeals her conviction for Carrying a Handgun Without a License, as a Class C felony, following a bench trial. She presents a single issue for review, namely, whether the evidence is sufficient to support her conviction. * * *

Here, the disassembled Derringer found in Staten’s purse also meets the definition of “firearm” under Indiana Code Section 35-57-1-5. Specifically, although it was disassembled, the pieces, upon reassembly, could “readily [have been] converted to expel a projectile by means of an explosion.” See Ind. Code § 35-57-1-5. Video evidence at trial showed two police officers readily assembled the handgun and fired it in a matter of seconds. And, like the handgun in Manley, it had been designed to expel a projectile by means of an explosion, and the fact that the handgun was not immediately capable of firing was irrelevant under the statute.

In the Matter of the Supervised Estate of David A. Bender, deceased; Paul E. Bender v. Brian D. Bender & Monroe Bank, is a 24-page opinion by Chief Judge Kirsch on a number of probate issues, which is affirmed in part, reversed in part, and remanded for further proceedings.

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

Tuesday, March 21, 2006

Ind. Decisions - Indiana case argued before U.S. Supreme Court yesterday

Updating this ILB entry from March 13th titled "Indiana hearsay/confrontation clause case to be heard by U.S. Supreme Court," are stories today on yesterday's oral arguments.

The AP reports:

WASHINGTON -- The Supreme Court considered Monday whether statements made by victims to 911 operators and police officers at crime scenes should be barred as evidence because they were not made under oath or subjected to cross-examination by a defendant.

In cases from Washington and Indiana, the justices focused on whether the rights of Adrian Davis and Hershel Hammon were violated because their accusers did not testify at their trials.

The issue is significant because the high court's ruling could affect the ability of prosecutors to bring criminal charges - particularly in domestic violence cases - when victims or key witnesses are not willing or not available to testify.

Justice Ruth Bader Ginsburg pointed out that "many women in these situations are scared to death" and don't want to testify.

Ginsburg also recalled that "it wasn't so long ago" that police wouldn't bother trying to gather evidence to prosecute cases of domestic abuse.

She worried aloud that if the justices issue a ruling that police consider more trouble than their efforts are worth, officers might wonder why they should bother pursuing domestic violence cases.

Lawyers on all sides of the cases - as well as the Bush administration - want the justices to clarify a 2004 decision that barred prosecutors' use of statements from victims or witnesses if a defendant did not have a chance to question them in court.

Justice Antonin Scalia, the author of the 2004 majority ruling, grilled lawyers for Washington and Indiana about a defendant's right to confront his or her accuser.

Scalia worried about what would happen to defendants who were charged with crimes based on "false" statements from witnesses who never testified. And he wondered whether 911 operators, by asking so many questions of victims, aren't being used by police as "a prosecutorial device." * * *

In the other case out of Peru, Ind., Amy Hammon also did not testify. But a judge allowed a police officer to testify that she had told him that her husband, Hershel, had thrown her into the glass panel of a gas heater.

Chief Justice John Roberts appeared to give prosecutors and police the benefit of the doubt in both cases.

Roberts was skeptical when Davis' lawyer suggested that prosecutors, armed with powerful 911 tapes, might keep "bad" witnesses off the stand to win their cases.

And the chief justice said police officers have mixed motives in trying to protect victims and build criminal cases.

David Savage of the LA Times has a different take:
WASHINGTON -- Eight of the nine Supreme Court justices — all but Ruth Bader Ginsburg — sounded today as though they would vote to bar prosecutors from using in court the words of crime victims who spoke to authorities but refused to testify.

Such a ruling would greatly strengthen the constitutional rights of defendants to "be confronted with the witnesses against" them. It would be a major setback for prosecutions in domestic violence and sexual assault cases because frightened victims often refuse to testify against their abusers. * * *

Justice Antonin Scalia countered that the use of such statements in place of a witness' testimony in court violated the principle set forth in the 6th Amendment.

"I think the founders believed in a system where the accused had a right to confront his accusers in court," Scalia said. "I can't see why it makes any sense" to allow a taped 911 call to replace a witness' testimony, he said, because defendants then lose the right to contest the statements of their accusers.

In their questions and comments, most of the justices sounded as though they leaned toward Scalia's view. Several said they did not see how they could make a special exception for emergency calls where domestic violence was at issue. * * *

In the second, Hershel Hammon was convicted of domestic battery of his wife Amy based on her initial statement to a police officer who came to their house. She did not testify.

Their lawyers argued that "accusatory statements" to authorities should be barred from trial unless the witness testified. Prosecutors said "emergency" statements to authorities should be allowed, even if the witness did not testify.

Here is Linda Greenhouse's excellent coverage in the NY Times. It begins:
A crime victim's emergency call to 911, when introduced in court, can provide powerful evidence of the attacker's identity and the circumstances of the crime.

Perhaps too powerful — or so most Supreme Court justices seemed to conclude during an argument Monday on whether the prosecution could use such evidence without violating defendants' constitutional rights to face their accusers in the courtroom.

The constitutional problem arises when the victim fails to appear in court and is therefore not available for cross-examination.

In domestic violence cases, the scenario is common; in one study cited to the Supreme Court, as many as 90 percent of victims of domestic violence fail to cooperate with the prosecution because of fear of or misplaced loyalty to their abusive partners.

Rather than abandon such cases, a growing number of states have begun to relax their evidentiary rules and permit juries to hear 911 tapes or read transcripts of police interviews with victims.

Two years ago, however, the Supreme Court issued an unmistakable warning that these efforts were likely to collide with the Sixth Amendment's Confrontation Clause, which guarantees to a criminal defendant the right "to be confronted with the witnesses against him."

In Crawford v. Washington, the court laid down a new rule: a "testimonial" statement made out of court cannot be used at trial unless the person who made the statement is available for cross-examination.

Now the question is whether the justices meant what they said, even in situations with strong policy arguments for bending the rules. Based on their responses in the courtroom on Monday, they did.

Here is Charles Lane's coverage in the Washington Post. Some quotes:
On one side are McCottry's boyfriend, Adrian Davis of Washington state, and Hammon's husband, Hershel Hammon of Indiana, who say that the Sixth Amendment requires the state to bring its witnesses to court, put them under oath and allow them to be cross-examined. They are supported by briefs from the American Civil Liberties Union, the National Association of Criminal Defense Lawyers and the D.C. Public Defender Service.

On the other side are the states of Indiana and Washington, supported by the Bush administration, 27 other states including Maryland, the National Network to End Domestic Violence and the National District Attorneys Association. Though their arguments vary in emphasis, these parties agree that statements made in the moments surrounding a criminal attack are not testimony and therefore are not covered by the Sixth Amendment. * * *

The 2004 ruling enjoyed the support of the entire court except Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor, who are no longer sitting.

Still, during the course of an intense two-hour discussion of the two cases, Davis v. Washington , No. 05-5224, and Hammon v. Indiana , No. 05-5705, at least some of the justices seemed concerned about how far to extend the new rule.

Posted by Marcia Oddi on Tuesday, March 21, 2006
Posted to Ind. Sup.Ct. Decisions

Law - Two Ohio Supreme Court decisions regarding public records

"Supreme Court rules against City of Akron records' destruction" is the headline to this AP story yesterday. Some quotes:

COLUMBUS, Ohio - The city of Akron could be forced to pay $860,000 for destroying records that documented how much time off two secretaries earned, the Ohio Supreme Court ruled Monday.

The court's 4-3 decision said that the 860 time sheets were each an individual document under the state's open records law and not part of a bigger record, meaning the city must pay $1,000 for the destruction of each document.

The $860,000 fine levied by a federal jury in 2001 was the largest ever awarded under state law dealing with destruction of records, according to attorneys on both sides.

Open records advocates said Monday's ruling sent a "monumental" message about the importance of public records. Representatives of local governments had a different take on the meaning of the decision.

"It allows people who have had small infractions with a lot of paper involved to make a lot of money easily," said attorney John Gotherman, representing the Ohio Municipal League.

The court clarified state law regarding the destruction of public records at the request of the 6th U.S. Circuit Court of Appeals in Cincinnati, which is hearing Akron's appeal of the jury's decision.

The secretaries used the time sheets to record how much time off they were owed as part of an informal system for awarding the time in lieu of overtime pay. The worked in the city's permits and plans division where another employee destroyed the records after the city ended the practice.

Elizabeth Kish and Victoria Elder sued Akron for their unpaid time off and alleged the records were destroyed to thwart their efforts.

Each of the employees' time sheets had an independent role in documenting how a public office functioned, as defined under Ohio's public records laws, said Justice Maureen O'Connor, writing for the majority. * * *

The lawyer representing Kish and Elder said the ruling makes it clear that open records must be preserved.

"Ohio has a very strong public records access law which truly would be meaningless if you didn't have any teeth behind the law that says you must preserve the records," attorney Jennifer Corso said.

The federal appeals court will rely heavily on the decision, predicted David Marburger, an attorney representing the Ohio Newspaper Association.

"It's monumental," he said. "It sounds like a powerful message that you better not destroy records if you don't have authority to do that."

Here is the decision in Kish et al v. City of Akron.

Last Friday the Ohio Supreme Court decided another public records case, as reported in this AP story. Some quotes:

Ohio's public records law trumps federal medical privacy rules, the Ohio Supreme Court ruled today in ordering the Cincinnati Health Department to give a newspaper records on lead paint hazards.

Attorneys for both sides had called this one of the first tests in the nation of how the federal privacy law interacts with state public records laws that conflict with it.

"This could have nationwide impact," said John Greiner, attorney for The Cincinnati Enquirer, which sought citation letters for properties where a child's blood was found to have high levels of lead.

Justice Terrence O'Donnell, writing for the court, said the justices faced a quandary: Federal law says the health records are protected unless state law requires releasing them — while Ohio law says public records must be released unless federal law protects them.

The ruling said Ohio's law takes precedence because the U.S. Department of Health and Human Services clearly stated its intent that the medical privacy rule would not override state law.

After the ruling, the department also offered to also release any records produced since the lawsuit started.

The story continues:
The [Cincinnati] Enquirer asked two years ago for copies of the letters, which the city sent to owners of properties where tests had identified children who had high levels of lead in the blood. Even very low levels of the toxic metal can impair learning and damage health. The newspaper wants to report on how much progress has been made removing lead hazards from homes.

Under court-ordered mediation, the city earlier had released records for 170 schools, day cares and buildings housing multiple families but withheld 173 letters that gave the addresses of single-family homes.

The letters did not name the children or identify the amounts of lead contamination. The Health Department had argued the newspaper could identify the children by the addresses. The newspaper argued families could have moved or many children could live at one address.

The ruling sided with the newspaper, saying the records didn't meet the federal definition to require protection — but even if they did, they must be released under Ohio law.

The case is State ex rel. Cincinnati Enquirer v. Daniels, Case no. 2005-006, available here.

For background, see this ILB entry from Oct. 11, 2005, titled "Impact of HIPPA on public records law." It includes a link to the oral argument.

Posted by Marcia Oddi on Tuesday, March 21, 2006
Posted to General Law Related

Ind. Decisions - Court of Appeals issues four today

In Hoosier Outdoor Advertising Corp. & Monroe Co., In., Monroe Co. Bd. of Zoning Appeals v. RBL Management, Inc., a 22-page opinion, Judge Barnes writes:

Hoosier Outdoor Advertising Corporation (“Hoosier”) appeals the trial court’s judgment reversing decisions of the Monroe County Board of Zoning Appeals (“BZA”), which had granted Hoosier permission to erect and display certain billboards while denying similar permission to RBL Management, Inc. (“RBL”). We reverse. * * *

The BZA’s decisions to allow Hoosier to relocate its sign structures and deny RBL permission to erect new ones are reasonable and further the clear intent of the MCZO, while the trial court’s decision does not. Additionally, we cannot conclude that the BZA’s decisions are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; without observance of procedure required by law; or unsupported by substantial evidence. Thus, we reverse the judgment of the trial court.

Conclusion. We conclude that RBL has failed to meet its burden of demonstrating that the BZA’s decisions were incorrect. The trial court erred in ordering reversal of those decisions. We reverse the trial court and direct that the BZA’s original decisions be reinstated.

J.S. v. State of Indiana - juvenile law

Darnell Masterson v. State of Indiana - warrentless search of vehicle

Joshua H. Field v. State of Indiana - sentencing

Posted by Marcia Oddi on Tuesday, March 21, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - Randolph commissioners rescind plan to demolish courthouse

"Randolph commissioners rescind plan to demolish courthouse" is the headline to this story by Joy Leiker in the Muncie StarPress. Some quotes:

WINCHESTER -- The Randolph County Courthouse is safe from the wrecking ball once more.

In a most unexpected twist Monday, Randolph County commissioners voted unanimously to rescind their controversial June 6 vote to demolish the 129-year-old building that sits in the middle of Winchester's downtown square.

But the even bigger surprise is who made the motion -- Commissioner Drew Wright, the same man who a little more than nine months ago made the motion to tear down the courthouse.

From reading the rest of the story, this does not look to be the final resolution of the demolition question, but just a pause in the action.

Posted by Marcia Oddi on Tuesday, March 21, 2006
Posted to Indiana Courts

Ind. Gov't. - Confusion reigns when it comes to open records

"Confusion reigns when it comes to open records" is the headline to a column today by Frank Gray in the Fort Wayne Journal Gazette, details the lack of clarity regarding access to "police reports" from the Fort Wayne police department. Here is a quote, but don't miss reading the entire column:

It all raises a curious question. Are police reports available to the public or not?

Indiana’s public access laws don’t say specifically that “police reports” are open to the public. The law doesn’t spell out any specific documents. Instead, it says if a person is arrested, the name, age and address shall be public record, along with information concerning any charges on which the arrest is based, information relating to the circumstances of the arrest, and the time and location of the arrest.

The law also says the substance of all complaints shall be available to the public, and if an incident involves a crime, the factual circumstances surrounding the incident shall be made available.

Exceptions include the names of victims if the crime is sex- related, and what is called investigative record, which applies to cases still under investigtion.

We asked the state’s public access counselor, Karen Davis, if this made sense. Yes, she said, some investigative records and witness statements aren’t necessarily public record. But police can’t flatly deny someone access to a police report. If a person is denied, police must cite the specific law under which they denied access to a report, and, if the request was made in writing, the denial must be in writing and include the name and title of the person responsible for the decision and how to contact that person.

Police also must be consistent. For example, police reports are routinely made available to the media – to radio, television and newspaper reporters. Police can’t release reports to the media, which are going to blab the information all over, Davis said, and then claim that the same documents aren’t available to the average Joe. That would be capricious and arbitrary behavior.

“You can’t give it out to some and not others,” Davis said.

Utilizing a new search feature on the PAC website, here is a list of all the Indiana Public Access Counselor opinions containing the phrase "police report."

Posted by Marcia Oddi on Tuesday, March 21, 2006
Posted to Indiana Government

Ind. Decisions - Cardiologists post appeal bond to resume practice during appeal

"Cardiologists post appeal bond to resume practice during appeal" is the headline to a story by Bryan Crobin in today's Evansville Courier& Press. Some quotes:

Two local cardiologists are posting a combined $900,000 as an appeal bond so they can resume practicing cardiology and compete directly against their former employer.

Dr. Ralph D. Millsaps has to post approximately $700,000 and Dr. Julio A. Morera approximately $200,000 while they appeal the verdict in their lawsuit to the Indiana Court of Appeals.

Millsaps and Morera sued their former physicians' group, Ohio Valley HeartCare, to get out from under a restrictive noncompete deal they signed in their employment contracts in 1998. The arrangement precluded either physician from working for Ohio Valley's competition and prohibited them from practicing any form of medicine in the 31-county Tri-State area for two years after they resigned from Ohio Valley. * * *

Deciding the cardiologists' lawsuit last month, Vanderburgh Superior Court Judge Wayne Trockman ruled in Ohio Valley's favor, concluding it could enforce noncompete clauses. But finding the restrictions were overbroad, Trockman rolled them back significantly. He allowed Millsaps and Morera to resume practicing other medical disciplines for which they are certified and allowed them to practice cardiology anywhere except Vanderburgh County and four surrounding counties. The restrictions last for two years.

But Millsaps and Morera, who wanted to practice cardiology in Evansville unfettered by geographic restrictions, were unhappy with the judge's ruling and are appealing it. On Friday, Trockman denied their request to halt enforcement of his ruling while it is on appeal. But he did allow them to resume practicing cardiology in Evansville and compete against their ex-employer - if they post appeal bonds while waiting for the appellate court to rule, which could take six to nine months.

The amounts they must post are equivalent to "liquidated damages" the doctors would have had to pay Ohio Valley under buyout provisions of their contracts, to compensate Ohio Valley for its anticipated loss of revenue after they left. Obtained through a letter of credit from a local bank, the funds will be in escrow until appeals are exhausted, plaintiffs' attorney Patrick Shoulders said.

If the doctors win their appeal, the funds might be returned; but if Ohio Valley wins the appeal, it might keep the funds. Ultimately, the judge will decide the fate of the appeal bonds, the ruling Friday said.

For background on this case, start with this Feb. 28th ILB entry.

Posted by Marcia Oddi on Tuesday, March 21, 2006
Posted to Ind. Trial Ct. Decisions

Monday, March 20, 2006

Ind. Decisions - State justices reject Hilbert's appeal of $80 million ruling [Updated]

J.K. Wall of the Indianapolis Star is reporting this afternoon:

The Indiana Supreme Court has declined to hear Stephen C. Hilbert's appeal of an $80 million judgment that Conseco Inc. won against its former chief executive, attorneys for both sides said today.

Hilbert's lawyer, Phillip Fowler, said Hilbert plans to appeal to the U.S. Supreme Court, based on one of his defenses that hinges on federal law.
“We are certainly disappointed because we believe that the previous rulings are inconsistent with Mr. Hilbert's contract rights and with established Indiana law,” Fowler wrote in an e-mail.
The 3/17/06 transfer list including the Hilbert transfer petition denial (top of p. 3) is available here.

[Updated 3/21/06] The Indianapolis Star today has an expanded story on the Hilbert appeal effort, headlined "Hilbert's appeal of $80M ruling is over in state: Former Conseco exec looks to U.S. Supreme Court." It also has a good timeline of "Events in the Hilbert-Conseco legal battle."

The Louisville Courier Journal has an AP story by Charles Wilson.

Posted by Marcia Oddi on Monday, March 20, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Model family court project expands

A release from the Supreme Court today announces:

New model family court pilot projects will begin in six additional counties, joining the growing family court movement in Indiana, Chief Justice Randall T. Shepard announced today.

The Indiana legislature and the Indiana Supreme Court have partnered since 2000 to fund model family court projects across Indiana.

The newest family court projects will be in Allen County and St. Joseph County, along with a multiple-county project that will be created in Martin, Pike, Crawford, and Orange counties in southern Indiana.

These pilot projects will join seventeen other counties that are already part of the Indiana Supreme Court Family Court Project.

The new project counties will receive a total of $125,000 in family court grants in 2006, and an additional $125,000 will be distributed to help the existing family court counties transition to permanent funding through local resources. By the end of 2007, a total of $1,634,038 will have been distributed to 23 counties through the Family Court Project since 2000.

The new family court projects in Allen and St. Joseph Counties will develop procedures to identify, coordinate, and share information about families who have more than one case pending in the court system. As with most Family Court projects, the counties will seek to avoid conflicting court orders and to coordinate services for families who have safety risks related to substance abuse, domestic violence, mental illness, or severe parental conflict. These two counties will also develop local family court rules and promote concepts of cooperative divorce and a less adversarial approach in family law litigation.

The Family Court Project for Crawford, Martin, Orange, and Pike counties is a collaboration of four rural counties using the same personnel to provide subsidized mediation for families with low-income and without legal counsel. This project will also provide administrative services to help low income families link to needed social services and coordinate services for families who have more than one case in the court system.

Posted by Marcia Oddi on Monday, March 20, 2006
Posted to Indiana Courts

Law - Are gay adoptions shaping up as nation's next culture clash?

The headline to this story in the Chicago Tribune today is: "Are gay adoptions shaping up as nation's next culture clash? Move to place children only with heterosexual couples gains some ground, but many doubt it will succeed." Some quotes:

In recent weeks a flurry of activity has focused new attention on same-sex adoption, which is being touted as the next battleground in the nation's culture wars.

Some states, including Ohio, are considering legislation to bar gays from adopting. When local church officials ordered Catholic Charities of Boston to stop placing children in same-sex households, the agency decided earlier this month to get out of the adoption business entirely.

Critics of gay adoption say children are damaged by growing up in such households. But many child-welfare advocates disagree, saying that if gay couples are ruled out as adoptive parents, it means children who desperately need homes will have that much longer to wait. * * *

Nationwide, laws on the issue are a hodgepodge. Florida has long banned gay adoption, though such couples can be foster parents. In Utah, only heterosexual, married couples can adopt, excluding not just gays but single people--who are allowed to adopt in virtually every other state. Mississippi nixes gay couples but not gay singles. Last month in Ohio, a bill was introduced that would bar homosexuals from adopting or being foster parents.

About 520,000 children are in foster care, according to the North American Council on Adoptable Children. Of those, 120,000 are available for adoption, but only 50,000 find permanent homes each year. In Illinois, some 2,220 children are waiting to be adopted. Experts say gay people take in some of the most hard-to-place children--those who are older or have mental, emotional or physical disabilities.

See also several earlier ILB entries, including: 3/4/06 ("Same-sex parenting is a done deal"); 2/21/06 ("Drives to ban gay adoption heat up"); 2/10/06 ("More on: Morgan County lesbian couple fight to keep child").

Posted by Marcia Oddi on Monday, March 20, 2006
Posted to General Law Related

Ind. Decisions - 7th Circuit issues no Indiana decisions, but an interesting gun law case from Illinois

In Article II Gun Shop v. Gonzales, a 14-page 2-1 opinion, with Judge Manion's dissent starting on p. 11, Chief Judge Flaum writes:

Article II Gun Shop, Inc., doing business as Gun World (“Gun World”) had its federal license to sell firearms revoked by the Bureau of Alcohol, Tobacco, and Firearms (“ATF”), based on allegations that Gun World willfully violated several reporting requirements of the Gun Control Act of 1968, 18 U.S.C. § 921 et seq. (“Act”). Gun World challenged ATF’s revocation decision in federal district court, pursuant to 18 U.S.C. § 923(f)(3). The government filed a motion for summary judgment, which the district court granted. Gun World appeals. For the following reasons, we affirm the opinion of the district court. * * *

MANION, Circuit Judge, dissenting. Because I conclude that the government is not entitled to summary judgment, I respectfully dissent. The central question here is whether Gun World’s recordkeeping violations were willful under 18 U.S.C. § 923(e). I agree with the court that this question is governed by Stein’s, Inc., v. Blumenthal, 649 F.2d 463, 467 (7th Cir. 1980). Thus, to show willfulness and succeed in revoking Gun World’s dealer license, the government must “prove that [Gun World] knew of [its] legal obligation and purposefully disregarded or was plainly indifferent to the recordkeeping requirements.” Id. (internal quotation omitted). Gun World has taken the first half of the willfulness test, i.e., knowledge, off the table; it conceded that it knew of its duty to fully complete the government’s firearm transaction forms. It is also important to note that the government and this court regard the 1981 and 1998 reports simply as evidence of Gun World’s knowledge of the Act’s requirements. This dispute therefore turns on whether Gun World acted with purposeful disregard or plain indifference when it left a small number of boxes blank on 12 of the 880 forms it filled out between January 1999 and February 2000.

Posted by Marcia Oddi on Monday, March 20, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals decides three today

In Randall Hass, et al. v. Indiana Department of Transportation, an 11-page opinion, Judge Vaidik writes:

Randall Hass, Richard Hass, and Lewis Hass III (“Appellants”) appeal the trial court’s judgment arising from an eminent domain case in which they had their land appropriated by the Indiana Department of Transportation (“INDOT”). Specifically, Appellants allege that the trial court erred by overruling their objections to INDOT’s complaint for appropriation, that the compensation award did not include all statutorily-required damages, and that the trial court judge should have recused himself. * * *

Conclusion. Appellants waived their argument that the trial court erred in overruling their objections to INDOT’s Complaint. Waiver notwithstanding, the trial court properly overruled Appellants’ objections. Furthermore, Appellants failed to file exceptions to the appraisers’ report, thereby waiving review of any issue regarding damages. Finally, Appellants have failed to show cause why Judge Bradford should have recused himself. Affirmed.

In Deborah M. Walton v. First American Title Insurance Company, an 11-page opinion, Judge Riley writes:
Walton raises one issue on appeal, which we restate as follows: whether the trial court erred as a matter of law in denying Walton’s motion for summary judgment which alleged that First American breached its duty to defend under a title insurance policy. * * *

Accordingly, based on its independent investigation of the known and ascertainable facts regarding Walton’s property, First American correctly concluded that Lot 107 was subject to the rights and obligations enacted in the Claybridge DCR, thereby bringing it squarely within the coverage exceptions of the title insurance policy. Consequently, we find that First American properly refused to defend Walton’s suit against the Claybridge HOA.

In James A. Palmer v. David J. Gorecki, M.D., a 12-page opinion, Judge Riley writes:
The Palmers raise four issues on appeal, which we consolidate and restate as the following three issues: (1) Whether the trial court erred as a matter of law by concluding that the Palmers’ Complaint is barred by the statute of limitations; (2) Whether the trial court erred as a matter of law by concluding that the statute of limitations is not tolled by the doctrine of fraudulent concealment or the doctrine of continuing wrong; and (3) Whether the trial court erred as a matter of law by concluding that the Palmers cannot bring a derivative consortium claim. * * *

Based on the foregoing, we conclude that the trial court properly granted Dr. Gorecki’s motion for summary judgment as a matter of law. Affirmed.

Posted by Marcia Oddi on Monday, March 20, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - High-fenced hunting ban could get OK

"High-fenced hunting ban could get OK" is the headline to this story today by Phil Bloom in the Fort Wayne Journal Gazette. Some quotes from the informative story:

Seven months after announcing intentions to ban deer hunting in high-fenced operations, Indiana Department of Natural Resources Director Kyle Hupfer could get clearance Tuesday to do just that.

The Natural Resources Commission, which oversees DNR activities, is scheduled to consider a final proposal intended to clarify ambiguities in current regulations and establish new ones regarding the practice that is sometimes referred to as “canned hunting.” The NRC meeting is at 1 p.m. at the Garrison at Fort Harrison State Park in Indianapolis.

“I think it’s important at a minimum to get this package passed,” Hupfer said. “We need to make it very clear at a minimum that we’re putting a clear message out that this is illegal in Indiana so that we don’t get any new facilities started. That’s got to be our top priority.”

The DNR issued 201 game breeder permits last year to people who possess white-tailed deer. No state agency requires information on high-fenced hunting operations, but reports range from 12 to 15 such operations in Indiana.

Hupfer determined last August that while the permit allows for the possession, breeding and sale of white-tailed deer, it does not authorize the hunting or purposeful killing of deer maintained under that license. He said because of past inconsistencies in application of the law, the DNR would delay enforcement until after the 2006 legislative session. * * *

Hupfer said he anticipates more litigation if the Natural Resources Commission adopts his proposal, but he believes he’s on solid legal footing, especially against high-fence operators’ claims that the hunting ban constitutes an illegal “taking” of private property.

“This issue has been litigated in a couple states, and it’s not been found to be a taking anywhere else,” Hupfer said. “For a taking, you almost have to take it all. This is not like eminent domain where you go in and say, ‘We’re taking your farm. You have to move out.’ ”

He cited a change in state law made last year that allows people who legally possess deer or exotic cervids (elk, fallow deer, etc.) to sell the meat and other products.

“There’s just one piece of a bundle of things you could do with those deer that’s being taken away – that is having someone pay to hunt them,” Hupfer said. “You can still sell the semen, which is being done a lot.

“You can still sell the deer on the hoof. You can still sell the venison. You can still sell the hides. You can sell the antlers. You could humanely slaughter the deer (at a slaughterhouse), mount the deer and sell the mount. “There are numerous things you could do with these animals that I think would prevent it from being determined to be a taking.”

Hupfer said he has no timetable for enforcing the high-fence hunting ban if the commission approves the rules package – which also creates an exotic mammal possession permit and bans the killing of exotic mammals in fenced enclosures.

“I currently have an open mind, and I think the governor has an open mind that if there is a way to soften the landing through some sort of negotiated settlement, it’s something the DNR will be open to discuss and entertain,” he said. “I wouldn’t rule anything out at this point.

“I think there could be a compensation component. There could be an ability to figure out a way to let them operate for some period of time. I think there are lots of different options that are on the table.”

See also this ILB entry from March 16th titled "Fenced deer hunt case back in court."

Posted by Marcia Oddi on Monday, March 20, 2006
Posted to Indiana Government | Indiana Law

Sunday, March 19, 2006

Law - Why Do So Few Women Reach the Top of Big Law Firms?

"Why Do So Few Women Reach the Top of Big Law Firms?" is the headline to a story occupying the more than a full-page of the NY Times Business section today. A few quotes from a long article that should be read in full:

Although the nation's law schools for years have been graduating classes that are almost evenly split between men and women, and although firms are absorbing new associates in numbers that largely reflect that balance, something unusual happens to most women after they begin to climb into the upper tiers of law firms. They disappear.

According to the National Association for Law Placement, a trade group that provides career counseling to lawyers and law students, only about 17 percent of the partners at major law firms nationwide were women in 2005, a figure that has risen only slightly since 1995, when about 13 percent of partners were women. * * *

"Firms want women to stay. Men at the firms want women to stay, and women want to stay. So why aren't they?" asks Karen M. Lockwood, a partner at Howrey in Washington. "Law firms are way beyond discrimination — this is about advancement and retention. Problems with advancement and retention are grounded in biases, not discrimination."

With law firms courting major corporations that demand diversity within the ranks of those advising them, and with women increasingly dominating the top tiers of law school graduates, veteran lawyers say that promoting women's legal careers is not just a matter of goodwill or high-mindedness. It's also a winning business strategy.

"Forget about skin color or gender or whatever, if you want to run a great business, you need great, talented people. And I don't care if I'm hiring Martians if it makes good business sense," says Michael M. Boone, a founding partner of Haynes and Boone in Dallas. "Even the largest firms are at risk if they don't do this." * * *

Lauren Stiller Rikleen, a 52-year-old partner in the Framingham, Mass., office of the Worcester, Mass., firm of Bowditch & Dewey, details the hurdles facing female lawyers in her recently published book "Ending the Gauntlet: Removing Barriers to Women's Success in the Law" (Thomson Legalworks, $25). In her book she writes that law firms need to reorganize if they want to encourage and retain women as partners, and that roadblocks — whether they be errant mentoring, opaque networking opportunities, low-grade case assignments or arbitrary male control of key management committees — should all be reviewed.

"Law firms like to talk about running the firm like a business and looking at the numbers, but they're running on an institutional model that's about 200 years old," she says. "Most law firms do a horrible job of managing their personnel, in terms of training them and communicating with them."

Posted by Marcia Oddi on Sunday, March 19, 2006
Posted to General Law Related

Law - “Knowing the access laws in your community—and country”

Here is a release received from the Indiana Coalition for Open Government:

“Knowing the access laws in your community—and country”

In Indiana and across the country, sunshine laws keep government at all levels open to public scrutiny and accountable to taxpayers.

This April, join hundreds of people who will share critical information trends occurring across the country—from local communities to the halls of the White House. First Amendment lawyers, journalists, state coalitions, and citizen advocates will come together for an unprecedented 2006 Freedom of Information Summit at the downtown Indianapolis Radisson.

The National Freedom of Information Coalition and the Indiana Coalition for Open Government invite you to hear first-hand from scores of experts during a two-day conference scheduled Friday, April 21-Saturday, April 22, 2006. The summit’s award-winning speakers have detailed this nation’s natural disasters, exposed national and international wrongdoing, researched legislative trends on privatization and helped organized nonprofit advocacy groups.

A discounted registration rate of $100 per person is available only through Tuesday, March 28, and offered exclusively with online registration. Individual event tickets are also being sold, ranging from $35 to $60.

For more information, visit the Indiana Coalition for Open Government.

Posted by Marcia Oddi on Sunday, March 19, 2006
Posted to General Law Related

Ind. Gov't. - How one citizen uses the public access law

The Richmond Paladium-Item has this story today by Pam Tharp about the State's public access law. Some quotes:

LIBERTY, Ind. --Mae Hubbard hates waste and she especially dislikes wasteful government spending.

But without public access laws, Hubbard said she'd have a difficult time knowing how the Union County-College Corner Joint School District spends its money. * * *

A certified public accountant in Liberty, Hubbard has made nearly monthly public records requests of the school since August, after school officials refused to give budget worksheets to the public.

"Before that, the requests I made were informal. When they refused to give the budget worksheets, I had to involve the public access counselor. I'm involved to try to get business leaders to make better business decisions. We expect excellence from students and the state holds principals accountable for student achievement. W hy shouldn't we expect good business management for our dollars?" Hubbard asked.

Hubbard filed information requests for the school's property and liability insurance quotes and its federal form 941, which has payroll totals. She wanted to determine if workman's compensation quotes were based on accurate numbers. She also asked for board members' conflict of interest statements.

After those requests, the district adopted a new policy that involves the school attorney in many open record requests to see if the information can be released.

Superintendent Mark Ransford said public record requests aren't as "cut and dried" as they might seem.

"On the conflict of interest it took four and a half hours to determine if that could be released, consulting with our attorney, calling the public access counselor. A lot of issues haven't been defined by the law. At times it's been a burden to redirect our efforts to handle the requests," Ransford said. * * *

Hubbard said she's become more patient with the time needed to gather records, but finds the effort is worthwhile. There was a $2 million difference in the payroll figures used by two insurance agencies on which the workman's compensation coverage bids were based, Hubbard said. A decision on copiers last fall also was flawed when the numbers were scrutinized, Hubbard said.

The school has since backed away from its November insurance decision because of the workman's comp discrepancy and the fact that the East Central Special Services District payroll was included in Union County's totals since 2003, which was also an error. That payroll is a shared cost among four school districts and shouldn't have been Union County's total responsibility.

The district has canceled its insurance coverage as of May 15 and is drafting a common set of values for rebidding.

Hubbard said board members have tried to demonize her for questioning decisions. Board members don't ask enough questions or hold administrators accountable for their recommendations and decisions, she said.

Posted by Marcia Oddi on Sunday, March 19, 2006
Posted to Indiana Government

Ind. Law - Home sellers lose with this new law

"Home sellers lose with this new law" is the title to a featured letter-to-the-editor in today's Indianapolis Star. The letter is from Patrick Woodall, senior researcher for the Consumer Federation of America in Washington, D.C. Some quotes:

At the urging of traditional real estate brokers, the Indiana legislature quickly and quietly passed a bill that would make homeownership even more expensive. House Bill 1339 requires all real estate brokers to provide "minimum services." This seemingly innocuous change is an attempt to protect brokers' 6 percent commission from market competition. Unfortunately, Gov. Mitch Daniels signed this anti-consumer bill.

The change will require real estate agents to provide a full set of services -- marketing the home, receiving offers from potential buyers, sales negotiation and handling closing procedures -- even if the homeowner doesn't want or need these advisory services. It is an attempt to prevent consumers from accessing a range of new, lower-cost real estate models. * * *

In other services, new business models using the Internet and technology brought improvements years ago -- such as in securities brokerage and travel -- but the changes are only beginning to affect the real estate industry. Rather than embracing market competition, industry leaders are attempting to use government to preserve the old model and prevent consumers from using less expensive real estate services. Similar efforts to limit competition from Internet real estate brokers drew a Justice Department antitrust lawsuit against the National Association of Realtors. And the same effort is behind the Indiana legislation.

The Antitrust Division of the Justice Department, along with consumer groups and many new real estate brokers, opposes the law. Gov. Mitch Daniels did not act in the best interests of consumers and homeowners when he signed this legislation.

The new law at issue, HEA 1339, has language beginning at the bottom of page 3 listing in detail the minimum duties the real estate licensee is to perform.

If the letter writer's analysis is correct, this means that real estate agents have now become a "protected species" in Indiana, rather than the "endangered species" predicted in this March 6th ILB entry that began:

NPR's Morning Edition had a story last Friday, March 3rd, about how "the Internet is putting pressure on the fees that [real estate] agents have become accustomed to." It speculated whether real estate agents would soon go the way of travel agents. And stock brokers.
In other words, no discount real estate brokers in Indiana.

[Note: One other thing that puzzles me about the new law is the new Sec. 25-34.1-8-7.7 added on p. 3, which provides that the attorney general and the real estate commission shall annually "enter into a memorandum of understanding to administer and enforce this article."]

Posted by Marcia Oddi on Sunday, March 19, 2006
Posted to General Law Related

Saturday, March 18, 2006

Law - Why Wall St. Hates Auctions

"Why Wall St. Hates Auctions" is the title to a NY Times column today by business writer Joe Nocera. His topic is the IPO and the auction method, used in the Google IPO, and in several since. Excellent, but apparently only available online to Times Select subscribers.

Posted by Marcia Oddi on Saturday, March 18, 2006
Posted to General Law Related

Ind. Law - Indiana gun laws feed Chicago crime; more [Updated]

The Indianapolis Star today has a major front-page story by Bill Ruthjart titled "Our gun laws feed Chicago crime: Relaxed rules make Indiana a weapons-buying destination for out-of-state criminals." Some quotes:

Indiana lawmakers have been reluctant to tighten the state's gun laws; but during this past legislative session, they passed a bill aimed at gang members that makes possession of phony identification a crime. They also doubled sentences for gang members who commit felonies.

At the same time, they approved legislation making Indiana the first state in the country to offer a lifetime license to carry a handgun.

Indiana gun laws rank as some of the most relaxed in the country. According to Americans for Gun Safety, gun shops like Don's and Bradis are among the nation's top gun dealers selling weapons that later turn up in crimes.

About 50 percent of crime guns used in Illinois come from out of state, many of them from Indiana, said Kessler, who has studied ATF gun-tracing documents. By contrast, he said, 10 percent of crime guns used in Indiana come from out of state. * * *

In Indiana, no license or permit is required to purchase any gun; the state doesn't require the registration of guns; and there are no limitations on assault weapons. The state had a seven-day waiting period before a gun purchase, but that was dissolved in 1998.

Gun buyers have to undergo a federal background check, but state checks -- which experts say are better at catching criminals -- are required for handguns but not for rifles, shotguns or most assault weapons.

Furthermore, background checks are not required at gun shows in Indiana, and no licenses are required for private resales. While the requirements are few to purchase a gun, the state does require a handgun license to carry a weapon.
"If you're talking about prohibiting the trafficking of illegal guns," Malte said, "Indiana gets an 'F.' "

In Chicago, you can't even buy a gun -- it's illegal. Illinois allows cities to adopt tougher gun regulations than the state's. Illinois requires a permit to buy the weapons and background checks for private sales and gun shows. Illinois also requires a waiting period on gun sales. * * *

Indiana lawmakers, meanwhile, made it easier to carry guns by creating the nation's first lifetime handgun license. Previously, gun owners were required to renew licenses every four years.

Proponents of the legislation [SEA 54], which had bipartisan support, said new fees for the licenses would generate more money for State Police to track gun carriers.
"Less than 1 percent of gun crimes involve people who have a permit," said Rep. Troy A. Woodruff, R-Vincennes, the legislation's author.

But opponents like Rep. Vernon G. Smith, D-Gary, said the state is sending the wrong message. "I find it quite odd that we've taken away lifetime licenses for teachers, principals and superintendents," Smith said, "but you can have a lifetime license to carry a gun."

For background, see this ILB entry from March 2nd, and this one from Feb. 26th.

[Updated 3/19/06] Today's Louisville Courier Journal has a story by Deborah Yetter headlined "Ky., Ind. ready to expand right to kill intruders: NRA presses issue in several states." (That would be HB 1028, the "no retreat" bill, awaiting Governor Daniels' signature.) Some quotes from the LCJ story:

FRANKFORT, Ky. -- Kentucky is poised to join Indiana and several other states that have expanded people's right to shoot anyone they believe is threatening them.

Backed by the National Rifle Association, the measure became law in Florida last year and in South Dakota last month. Last week, it was approved by lawmakers in Mississippi and Indiana. * * *

But versions of the bill have failed in states including Wyoming, Iowa and Virginia, among the 15 where the NRA has made its passage a priority.

Dubbed the "castle doctrine" by the NRA, the measure specifies that people have no "duty to retreat" -- or attempt to flee -- if they believe they are being threatened on their property or in their vehicle.

"Your home is your castle, and you should be able to protect it with any means necessary," NRA spokeswoman Ashley Varner said. * * *

Backers of the law in Kentucky and Indiana acknowledge that courts in both states have supported the right of people to defend themselves with deadly force.

But they also said a law would make it more difficult to reverse that right.

"When judges make law, they can change law," said Indiana Rep. Eric Koch, R-Bedford, sponsor of the Indiana's House Bill 1028.

"I think the citizens have a fundamental right to defend themselves, their families and their property, and this bill guarantees this right," he said. * * *

A spokeswoman for Gov. Mitch Daniels said he plans to sign it.

Posted by Marcia Oddi on Saturday, March 18, 2006
Posted to Indiana Law

Ind. Courts - Eight new judicial positions in Marion County

The Indianapolis Star reports today:

Gov. Mitch Daniels signed legislation Friday creating eight new judicial positions in Marion County and taking some of the politics out of local judicial races.

The number of Superior Court judges will increase to 35 from 32 in January, and an additional judge and four magistrates will join the bench in 2009. The changes will cost an additional $3.1 million through the 2009-10 budget year, according to the nonpartisan Legislative Services Agency.

The legislation would largely eliminate partisan battles in fall judicial elections. The new law expands the court's executive committee to four members, with two from each party. Control would alternate between the parties every two years.

The new law is HEA 1156.

Posted by Marcia Oddi on Saturday, March 18, 2006
Posted to Indiana Courts

Ind. Courts - State suspends Clark attorney

"State suspends Clark attorney" is the headline to a story by Alex Davis in today's Louisville Courier Journal. Some quotes:

Jeffersonville attorney Dwight A. Cosby will be suspended from practicing law in Indiana for at least nine months after an investigation by a state disciplinary commission.

The suspension, imposed by the state Supreme Court, takes effect April 15. Cosby can petition the court to be reinstated after the nine-month period is over. * * *

In a 25-page report from a hearing officer in the investigation, Cosby was described as having "little regard" for his "professional obligations."

He faced eight counts before the disciplinary commission, covering a period from late 1998 to June 2004.

One case -- which the report said was "especially troublesome" -- involved an inmate at the Wabash Valley Correctional Facility in Sullivan County who had been sentenced to 40 years in prison on a variety of charges, including theft.

According to the report, Cosby initially charged the inmate a $2,500 fee after being hired to try to have the sentence reduced. Cosby then demanded another $6,000 after learning that the man had more money to spend, the report said.

He later submitted a one-sentence court petition that the report describes as "worthless." The petition offered no explanation for why the sentence should be reduced and also didn't follow the proper procedures, the report said.

Here is the Supreme Court's 3/10/06 order In re Cosby. The complete list of disciplinary orders is available here.

Posted by Marcia Oddi on Saturday, March 18, 2006
Posted to Indiana Courts

Ind. Courts - Judge threatens taping defendant's mouth with duct tape

"Judge may invoke literal 'gag rule'" is the headline to a story today in the Evansville Courier& Press by Mark Wilson. Some quotes:

A defendant's tirade in a Warrick County courtroom Friday prompted the judge to warn that his mouth may be taped closed during his next court appearance.

Sheriff's deputies led Aaron J. Vaughn out of the courtroom after the inmate launched into an obscenity-strewn rant directed at Superior Court Judge Robert Aylsworth during an otherwise routine court appearance at which a public defender was appointed to represent Vaughn. * * *

Afterwards, Aylsworth asked that the record reflect that Vaughn's mouth would be taped closed for his April 7 court appearance.

"His mouth may be taped if that is what it takes to keep him quiet. He will be quiet one way or another," he said. "I think Mr. Vaughn has other issues besides criminal." * * *

Police in Evansville and Warrick County suspect Vaughn, 31, is the thief they nicknamed the "Backdoor Burglar" who entered homes through unlocked back doors at night and took valuables left in sight. * * *

Vaughn was arrested Sept. 23 after a team of officers planted dyed money and purses in several homes of the Colonial Hills subdivision in Newburgh, where they had tracked Vaughn using a global positioning satellite (GPS) tracking device and then waited for him to take the bait.

However, in a court ruling last week Warrick Circuit Court Judge David Kelley threw out evidence gathered as a result of using the GPS.

The GPS device allowed Evansville police to track Vaughn's location with satellite technology. After Vaughn was arrested, Evansville police applied to Vanderburgh Superior Court Judge Robert Pigman for warrants to search Vaughn's car and motel room but according to Kelley's decision they didn't notify Pigman that they had been tracking Vaughn by GPS.

Posted by Marcia Oddi on Saturday, March 18, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - More on: State lacked coal mine inspections during 2005

From an editorial today in the Fort Wayne Journal Gazette:

Two days after 12 coal miners perished in a West Virginia mine, Indiana’s Commissioner of Labor ordered inspections at the seven commercial mines in southern Indiana. A pro-active approach to safety, right?

Not exactly. Commissioner Miguel Rivera was just getting around to following a state law he had earlier thumbed his nose at.
T
he commissioner suspended inspections in 2005, noting that Indiana hasn’t had a mining death since 2004 and that the federal Mine Safety and Health Administration already does inspections anyway.

“I made that call,” Rivera told an Indianapolis TV station. “Our focus is on training miners and mine rescue.”

That’s fine, but state law requires quarterly inspection of mines, which employ about 1,500 workers in the southwestern part of the state. It also requires the state’s Bureau of Mines to have a director and a chief inspector. For most of 2005, however, the bureau had only one employee – Deputy Commissioner John Alaria.

After Rivera ordered inspections to resume in January, Alaria responded with a scathing letter.

“For nine months now you have been telling that we were not going to inspect mines,” he wrote. “That we were going to let the federal do the inspections, as not to double up on inspecting the coal companies. Now all of a sudden, you want me to inspect all of the underground mines in Indiana, each quarter. I believe that one inspector cannot do a complete inspection of seven mines in one quarter.

“I told you awhile back that this would happen as soon as disaster occurred. Questions would be asked and fingers pointed. Now since there is no way that I can complete seven underground mine inspections in there (sic) entirety, it will seem that I’m not doing my job.”

Alaria, a formal federal inspector with 37 years of experience, later proceeded to inspect the mines, but he resigned last week to accept a job with a mining company. * * *

The inspection revelation is troubling. If the administration is ignoring Indiana laws regarding the Bureau of Mines, what else is being ignored on the grounds that it eliminates duplication? How intense is the pressure to cut costs and balance the budget?

In the current anti-government climate, state laws are too often mischaracterized and mocked. They are misrepresented as layers of bureaucracy piled on businesses and individuals for no other reason than to hamstring and tax commerce.

But every law created by the legislative branch originated for a reason, and given the deaths in U.S. mines, the requirement of coal mine inspections is one that would seem to need no justification. If the administration doesn’t see it that way, lawmakers should demand a review to ensure that the legislation they approved is not being ignored.

For background, see this ILB entry from March 14th.

Posted by Marcia Oddi on Saturday, March 18, 2006
Posted to Indiana Government

Ind. Courts - Delaware County Judge criticizes plea agreements

"Judge criticizes plea agreements" is the headline to a story by Nick Werne in the Muncie Star-Press. Some quotes:

A Delaware County judge questioned whether preliminary plea agreements are too lenient in the cases of a husband and wife who fired gunshots while police were responding to a 2004 emergency call at their rural Cowan home.

At question is whether the gunshots fired from inside the home were the accidental result of a physical confrontation between Mark and Teresa Hittson or whether the couple was firing on officers outside.

"By the grace of God, some of these officers didn't get shot," Circuit Court 5 Judge Wayne Lennington said. "They were bent on doing someone in."

Mark and Teresa Hittson reached identical agreements with the Delaware County prosecutor's office that would allow them to plead guilty to criminal recklessness, a class D felony carrying a maximum three-year sentence.

Lennington, who must approve the agreements, criticized them during a hearing this week.

The judge said the gunshots appeared to have been fired intentionally at officers and did not, therefore, meet the definition for criminal recklessness under Indiana law.

The Hittsons, perhaps, were deserving of convictions for the more serious crime of attempted aggravated battery, a class C felony with a penalty between 2 and 8 years, Lennington said.

The couple's attorney, John Brooke, debated with Lennington and said no evidence existed that proved his clients intentionally fired upon anyone.

Lennington has taken the agreements under advisement and given Brooke and Deputy Prosecutor Judi Calhoun until Tuesday to file written briefs with the court.

Posted by Marcia Oddi on Saturday, March 18, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Law - Porter County sues jail architects

Last reported on in the ILB here, on Dec. 18, 2005, in an ILB entry titled "More on: County to jail architect: Pay up or get sued", the Munster (NW Indiana) Times reports today:

The Porter County Commissioners filed a lawsuit Friday in Porter Superior Court claiming the county jail's architects built flawed cells that allowed two inmates to escape in September 2005.

Tom Herr, the lawyer for Fort Wayne-based Schenkel Shultz Architecture, responded that it is unreasonable for the county to approve the design, occupy the jail for three years and then expect the firm to pay for changes.

The lawsuit says Schenkel Shultz breached its contract and its professional duty by designing flawed ceilings in the cells and is asking for damages of about $343,000, the cost of tearing out and replacing the ceilings, and legal fees.

The lawsuit stems from an attempted and, later, a successful jailbreak.

Posted by Marcia Oddi on Saturday, March 18, 2006
Posted to Indiana Law

Ind. Courts - Lafayette Courthouse birds mostly scared off

"Courthouse birds mostly scared off" is a story from the Lafayette Journal & Courier of more than passing interest to anyone who walks the downtown Indianapolis sidewalks. Their secret:

The county has been successful in scaring away the birds using a device that imitates the sound of a red-tail hawk. Hansen said the birds left the courthouse to roost at the parking garage at Fifth and South Streets before moving on to another location.
There is also a link to a Purdue page on preventing and controlling blackbird damage.

Posted by Marcia Oddi on Saturday, March 18, 2006
Posted to Indiana Courts

Friday, March 17, 2006

Environment - DC Circuit issues important Clean Air ruling today [Updated]

State of New York et al v. EPA (DC Cir., 3/17/06)

Here is the AP report. Some quotes:

ALBANY, N.Y. (AP) -- A federal appeals court Friday blocked the Environmental Protection Agency from easing clean air rules on aging power plants, refineries and factories, one of the regulatory changes that had been among the top environmental priorities of the White House.

The new rules, strongly supported by industry representatives, would have allowed older plants to modernize without having to install the most advanced pollution controls.

The U.S. Court of Appeals in Washington declared that the EPA rules violate the Clean Air Act and that only Congress can authorize such changes.

Fourteen states and a number of cities, including New York, San Francisco and Washington, had sued to block the change in 2003, saying it would allow more air pollution. * * *

"This is an enormous victory for clean air and for the enforcement of the law and an overwhelming rejection of the Bush administration's efforts to gut the law," said New York Attorney General Eliot Spitzer, who led the lawsuit for the states. "It is a rejection of a flawed policy."

Peter Lehner, Spitzer's top environmental lawyer, said the decision applies to about 800 power plants and up to 17,000 factories nationwide.

Under the Clean Air Act, operators who do anything more than routine maintenance are required to add more pollution-cutting devices. Under the proposed change, industrial facilities could have avoided paying for expensive emissions-cutting devices if they spent less than 20 percent of the plant's value, Lehner said. * * *

The three-judge panel said that the EPA's reading of the Clean Air Act was "a Humpty Dumpty world" interpretation and that Congress had made clear it wanted older facilities to add pollution controls whenever they make modifications. * * *

The lawsuit was filed by New York, California, Connecticut, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico, Pennsylvania, Rhode Island, Vermont and Wisconsin.

For background, see this ILB entry from Sept. 12, 2005.

[Updated 3/18/06] The Washington Post reports today:

A federal appeals court blocked the Bush administration's four-year effort to loosen emission rules for aging coal-fired power plants, unanimously ruling yesterday that the changes violated the Clean Air Act and that only Congress could authorize such revisions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit sided with officials from 14 states, including New York, California and Maryland, who contended that the rule changes -- allowing older power plants, refineries and factories to upgrade their facilities without having to install the most advanced pollution controls -- were illegal and could increase the amount of health-threatening pollution in the atmosphere. * * *

The central question in the case focused on what constitutes an industrial facility "modification," because that is what triggers the federal requirement to cut down on the smog or soot emitted by utilities, oil refineries, incinerators, chemical plants and manufacturing operations. Previous administrations, including Bill Clinton's, had interpreted that phrase to encompass any physical activity that increases pollution from a given facility, with the exception of routine maintenance.

EPA officials in the Bush administration sought to broaden this exemption by asserting that "routine maintenance" is any activity that amounts to less than 20 percent of a plant's value. But the ruling, written by Judge Judith W. Rogers, rejected that reasoning as illogical.

"EPA's approach would ostensibly require that the definition of 'modification' include a phrase such as 'regardless of size, cost, frequency, effect,' or other distinguishing characteristic," Rogers wrote. "Only in a Humpty Dumpty world would Congress be required to use superfluous words while an agency could ignore an expansive word that Congress did use. We decline to adopt such a world-view."

The other two judges on the panel were David S. Tatel and Janice Rogers Brown.

The EPA's statement did not indicate whether the administration intends to appeal the ruling. Both [John Walke, director of the clean-air program at the Natural Resources Defense Council] and Scott Segal, a lobbyist for the utilities industry, said it would be difficult for the administration to forge ahead in light of the appeals court's strong ruling. Walke said the decision is tantamount to the court "burying the rule six feet under, where before it was just in a casket."

The NY Times reports:
The ruling by a three-judge panel was the court's second decision in less than a year in a pair of closely related cases involving the administration's interpretations of a complex section of the Clean Air Act. Unlike its ruling last summer, when the court largely upheld the E.P.A.'s approach against challenges from industry, state governments and environmental groups, the new ruling was a defeat for the agency and for industry, and a victory for the states and their environmentalist allies.

In the earlier case, a panel including two of the three judges who ruled on Friday decided that the agency had acted reasonably in 2002, when it issued a rule changing how pollution would be measured, effectively loosening the strictures on companies making changes to their equipment and operations.

But on Friday, the court said the agency went too far in 2003 when it issued a separate new rule that opponents said would exempt most equipment changes from environmental reviews — even changes that would result in higher emissions.

The "earlier case" referenced above is State of New York v. EPA (DC Cir., 6/24/05), available here. The ILB did not "blog" it at the time because it was decided during the period last summer when the ILB was on hiatus.

Posted by Marcia Oddi on Friday, March 17, 2006
Posted to Environment

Ind. Decisions - Transfer list for week ending March 17, 2006

Here is the Indiana Supreme Court's transfer list for the week ending March 17, 2006.

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, March 17, 2006
Posted to Indiana Transfer Lists

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending March 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 March 17, 2006.

There are 56 Court of Appeals cases listed this week. In addition, one Tax Court case is listed.

Posted by Marcia Oddi on Friday, March 17, 2006
Posted to NFP Lists

Ind. Decisions - 7th Circuit decides one from Indiana today

In Cherry v. Auburn Gear (ND Ind., Theresa Springmann, Judge), a 17-page opinion, Chief Judge Flaum writes:

The defendant-appellee, Auburn Gear, terminated benefits to retired employees of Auburn Gear and its predecessor Borg-Warner. The retired employees filed suit, claiming that their collectively bargained insurance agreements provided “lifetime benefits” that could not be terminated. The district court found that the language of the collectively bargained insurance agreements limited benefits to the term of the agreements and contained no patent or latent ambiguities. As a result, when the terms of the collectively bargained insurance agreements expired, so did Auburn Gear’s obligation to provide benefits. On this basis, the district court granted summary judgment for Auburn Gear.

For the following reasons, we now affirm the judgment of the district court.

Posted by Marcia Oddi on Friday, March 17, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Star criticizes Senator Garton

The Indianapolis Star's editorial cartoon today is a Gary Varvel drawing of Senator Garton walking away from the Statehouse with a large turkey tucked under his arm. The turkey is dropping golden eggs labeled "Health Care Perk" and "401k".

The Star's editorial today is headed "Unfinsihed Business" and includes this:

Senate leader fails to cut perk

Early in the session, House Speaker Brian Bosma eliminated a benefit that provided heavily subsidized health, dental and vision insurance for retired state representatives and their families for life. However, his counterpart in the Senate, President Pro Tempore Robert Garton, failed to follow Bosma's lead.

Senate leaders were shamed into modifying the perk, reducing the subsidy taxpayers shell out and requiring senators to serve for six years and past the age of 50 to qualify. But the deal is still amazingly sweet, especially when tied to the part-time job of serving in the legislature.

Senators defend the perk by noting that their base pay, at $11,600 a year, is quite low. Which is true. Yet, legislators also have given themselves a 401(k) plan that would make corporate executives envious. Taxpayers kick in $4 toward lawmakers' pensions for every $1 they contribute. A more straightforward way for legislators to compensate themselves would be to reduce or eliminate the perks and raise the base salary to a respectable level.

By the way, Garton has the authority by himself to wipe out the perk. He, along with the House Speaker at the time, John Gregg, implemented the benefit in 2002 over the objections of then-Gov. Frank O'Bannon.

Garton so far has stubbornly refused to act. Voters should keep that in mind as they head to the polls in May and November.

Posted by Marcia Oddi on Friday, March 17, 2006
Posted to Indiana Government | Indiana Law | Legislative Benefits

Ind. Decisions - Court of Appeals decides four today

In Ben Cochran v. State of Indiana, an 11-page opinion (including a 3-page dissent by Judge Riley), Judge Barnes writes:

The evidence most favorable to the judgment reveals that on November 13, 2003, Versailles Town Marshal David Adams was informed by dispatch that a citizen had called to complain about a person standing at the intersection of U.S. 50 and State Road 421 and displaying a poster apparently depicting an aborted fetus. The caller alleged that the poster was obscene. Marshal Adams went to the intersection to investigate the complaint. He approached the person holding the poster, Cochran, advised that he was investigating a complaint, and asked Cochran for identification. Initially, Cochran was reluctant to comply, stating that there was no law requiring that he have identification. However, after Marshal Adams explained that he wanted to know Cochran’s identity for his own safety and to know to whom he was talking, Cochran gave his name and date of birth. Marshal Adams called the information into dispatch, which relayed to him that there were no outstanding warrants for Cochran and that there was no information at all on Cochran, including that he apparently had no driver’s license.

Marshal Adams then returned to Cochran and said that there was no reason he could not continue protesting and displaying his poster. Later that day, however, Marshal Adams observed Cochran driving a vehicle. Because of his knowledge that Cochran had no driver’s license, Marshal Adams pulled him over and issued a citation for driving without a license.

After determining that Cochran had never received a driver’s license, the State charged him with operating a vehicle without ever having received a license, a Class C misdemeanor. Cochran moved to suppress all evidence derived from Marshal Adams’s request for identification, claiming that the information gained thereby was the fruit of an illegal stop or seizure. The trial court denied the motion. At Cochran’s bench trial, he objected to the same evidence, which the trial court overruled. The trial court found Cochran guilty and imposed a fine of $1 and costs of $136. Cochran now appeals. * * *

Conclusion The trial court properly admitted all of the evidence in this case; Marshal Adams’s interaction with Cochran and request for identification violated neither the United States nor Indiana Constitutions. We affirm. 1 It appears, viewing the evidence most favorable to the trial court’s ruling, that when Cochran’s name and date of birth were run through the available records, there were no records for him at all, not even for a driver’s license, and this information was relayed to Marshal Adams. * * *

RILEY, Judge dissenting.

I respectfully dissent from the majority’s conclusion that the encounter between Marshal Adams and Cochran was consensual. Rather, I find that Cochran was seized for Fourth Amendment purposes without an objectively reasonable basis; consequently, I conclude that the information Marshal Adams gathered from Cochran during the seizure should have been suppressed. * * *

Moreover, once Marshal Adams observed Cochran conducting a lawful protest, there was no supplementary reason to suspect Cochran of illegal activity. Thus, I fail to find that any reasonable suspicion existed to even briefly detain Cochran. As a result, I conclude that the information Marshal Adams’ seized during his investigatory stop of Cochran, specifically that Cochran did not have a driver’s license, was unlawfully obtained and in violation of Cochran’s Fourth Amendment rights.

In Alfred K. Weidenhammer v. Jacqueline L. Sorenson (Adoption: JBS), an 8-page opinion, Judge Kirsch writes:
Alfred K. Weidenhammer appeals the trial court’s order that set aside the adoption of his step-granddaughter, J.B.S. On appeal, he raises numerous issues, of which we find one dispositive: whether J.B.S.’s maternal aunt, Jacqueline Sorensen, possessed standing to file a Verified Motion to Set Aside Adoption Order. We reverse and remand.
In Allen Francis Foley v. Sharon L. (Foley) Mannor, a 14-page opinion (including a 1-page concurrance by Judge Najam), Judge Baker writes:
Appellant-respondent Allen Francis Foley (Allen) appeals the trial court’s judgment representing a $12,000 child support arrearage in favor of his former wife, appellee-petitioner Sharon Lee Foley Mannor (Sharon). Specifically, Foley challenges the trial court’s exercise of jurisdiction over this case, as well as the order directing him to pay attorney’s fees in the amount of $400 to Sharon’s counsel. Allen also argues that the trial court erroneously ordered a body attachment against him, as well as the amount of the bond that the trial court had set.

We conclude that the trial court had jurisdiction over this matter, and that the award of $400 in attorneys’ fees to Sharon was proper. However, we note that the issuance of a body attachment was improper in these circumstances. Thus, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

In Kankakee Valley Rural Electric Membership Corp. v. United Telephone Co., a 12-page opinion, Judge Baker writes:
Appellant-respondent Kankakee Valley Rural Electric Membership Corporation (Kankakee), appeals from the Indiana Utility Regulatory Commission’s (IURC) assertion of jurisdiction over a matter regarding certain utility pole attachments that were used by appellee-petitioner United Telephone Company of Indiana, Inc., d/b/a Sprint (Sprint), and appellee-intervenor Indiana Bell Telephone Company, Inc. (SBC). In essence, Kankakee argues that the IURC could not hear the dispute because Kankakee had opted out of the IURC’s jurisdiction. Concluding that the IURC properly exercised jurisdiction over this matter, we affirm its order and remand this cause to the IURC with instructions that it proceed to address the merits of this action.

Posted by Marcia Oddi on Friday, March 17, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Allen County Council examines attorney fees

"Allen council raises questions about cost of lawyers" is the headline to a story by Benjamin Lanka in today's Fort Wayne Journal Gazette. Some quotes:

The Allen County Council on Thursday proposed a series of changes in how the county hires attorneys in an attempt to save on the more than $900,000 spent on lawyers last year.

The council sent a letter with several scenarios and questions – including why the county pays health insurance to eight part-time attorneys – to the Allen County commissioners that was meant to serve as an invitation to discuss ways to save money on legal fees.

Councilman Cal Miller, R-4th, said the letter was not meant to slight any of the county attorneys but as a way for the county to save money.

He said with the $920,000 the county spends on attorneys, it could get 5,442 hours of legal work at $150 an hour, the rate the county pays.

The idea he was most excited about was to hire a fairly inexperienced attorney to handle the county’s tax collection program. Bill Fishering, county attorney, made about $121,000 from doing the work last year, although the money didn’t come from taxes, but fees associated with tax collection.

Miller said if the county would hire someone for $75,000 and collect $120,000 a year, the county would already be coming out ahead. The county would also have the attorney for other work throughout the year.

For background, see this ILB entry from Feb. 17, 2006.

Posted by Marcia Oddi on Friday, March 17, 2006
Posted to General Law Related

Law - Law firm 'gives' Legal Aid an attorney for two years

"Law firm 'gives' Legal Aid an attorney for two years" is the headline to a story today in the Louisville Courier Journal. Some quotes:

With its state funding repeatedly slashed, the nonprofit Legal Aid has struggled in recent years to provide civil legal services to the rising number of poor Kentuckians it represents.

But even as the agency has cut back on staff and limited the cases it takes, one local firm is stepping up to help.

Earlier this week, Shawna Scheidel, a recent DePaul University College of Law graduate, joined the Louisville Legal Aid office as part of a grant funded through the Wyatt Tarrant & Combs law firm.

"Legal Aid does a great job with the resources they have, but frankly, they are not able to serve everybody who is in need because of a lack of funding," said Bill Hollander, a partner at the law firm. "This was a way to help them serve a few more people."

While many local firms and attorneys contribute money and time to Legal Aid, Wyatt is the first to pay for an attorney for Legal Aid, which represents people in areas such as consumer problems, domestic cases, predatory lending and government benefits. The law firm is paying $60,000 a year in salary and benefits for Scheidel, who is from La Porte, Ind. * * *

Scheidel, whose primary focus will be on family law, said she has always been interested in family law issues and had hoped to help those who can't afford typical attorney fees.

"I've always wanted to help empower people who are underprivileged," she said. "I believe in serving the underserved. So this worked out really well."

After her two-year fellowship is over, Scheidel, 26, said she hopes to work in a public defender's office or even stay on with Legal Aid. "I hope this works out and I'll want to stay here and be a lifer."

Posted by Marcia Oddi on Friday, March 17, 2006
Posted to General Law Related

Law - Suit filed against LJC in Kentucky court for publication of a photo of the wrong man

The Louisville Courier Journal reports today:

A Lexington man sued The Courier-Journal yesterday, claiming he was humiliated after being identified last year in a picture as Charles Boney, the man recently convicted of conspiring with David Camm to kill Camm's family.

Daryl French's lawsuit alleges that a March 20, 2005, article on Boney being a suspect in the September 2000 murders of Kimberly Camm and the Camms' two children included a picture inside the newspaper of French, with a caption saying he was Boney.

On March 22, 2005, The Courier-Journal ran a correction noting that the photo used, a yearbook photo of a New Albany High School wrestler from the mid-1980s, was of French, one of Boney's teammates.

The yearbook showed two photos but included information with only one of the photos, according to the correction.

French claimed that the use of the photo was defamatory and an invasion of his privacy, and that it still can be seen on the newspaper's Web site.

However, the newspaper removed the photo from its Web site on March 21, 2005, immediately after learning it was incorrect, said Ric Manning, the newspaper's online manager.

Posted by Marcia Oddi on Friday, March 17, 2006
Posted to General Law Related

Thursday, March 16, 2006

Courts - Hugo Black criticized in 1940 Law Review article

By chance I was trying out a new feature in the ISBA's Casemaker and turned to an article in an issue of The University of Chicago Law Review from 1940-41, titled "Mr. Justice Black and the Supreme Court," at 8 U.Chi.L.Rev 20. A quote:

Unfavorable publicity attending President Roosevelt's choice of Senator Black for the Supreme Court, together with a number of dissenting opinions rendered by the new Justice during his first term on the bench, inspired various attacks questioning the wisdom of the appointment. To the extent that these attacks were upon Black's intellectual capacity to serve as a judge, they require no detailed condieration here. It has been said that Black's admittedly able constitutional opinions must have been written by some good lawyer.[2]
_________________
[2] Referring to Black's dissenting opinion in McCart v. Indianapolis Water Co., 302 US 419 (1939), Newsweek reported: "Lawyers agreed that the dissent was ably written .... To many who questioned Black's legal knowledge, this opinion had the ear-marks of ghost-writing. A rumor got around and even into print that it was the work of Tom Corcoran, ace New Deal lawyer, expert on utilities, and close friend of the new justice."
[More] Here is McCart v. Indianapolis. Justice Black's dissent starts near the beginning of the opinion, at p. 423.

Posted by Marcia Oddi on Thursday, March 16, 2006
Posted to Courts in general

Ind. Courts - Greene County Courthouse project report

The Linton Daily Citizen is reporting that work continues on the new addition to the Greene County Courthouse.

Reinforcing work is done on the Greene County courthouse addition, according to project manager Jim Corey.

“Structurally, we're back where we oughta be,” he said. “It's just standard construction stuff now.”

He said bricklayers for Whaley Construction are putting up brick and limestone now. He hopes they'll have that done by the first part of April. * * *

Once the brick is laid, Corey said, the workmen will come back down the face of the building acid-washing the brick.

“When that's done, we'll put in the windows,” Corey said. “It'll really start to shine then.”

He said General Interiors is currently working inside the new addition. He said electricians and plumbers are still roughing out wiring and plumbing.

“I hope to keep progressing at a faster clip as spring progresses,” Corey said. “The future looks bright. I'd like to get the courts moved in by late summer, but that's speculating that far out.

The ILB had an earlier report on the Greene County Courthouse on May 15, 2004. It was headlined "Environment - Poisonous atmosphere in Greene County Courthouse."

Posted by Marcia Oddi on Thursday, March 16, 2006
Posted to Indiana Courts

Ind. Courts - Miami County misses out on public defender grant

The Peru Tribune reports, in a story by Sherry Loshnowsky headlined "County misses out on thousands of dollars":

Miami County has missed out on about $32,000 in state reimbursement monies because its public defender program didn't comply with state guidelines.

The situation has been remedied and the county now qualifies for those reimbursements. * * *

[Commissioner Chairman Gary Hawley] said the amount of reimbursement is based on the classification of the cases and the total for the third quarter was between $32,000 and $35,000. That money would go back into the public defender fund.

For background, start with this ILB entry from March 9th, titled "Still more on: Failure to submit paperwork to Indiana Public Defender Commission costly to many counties, including Marion."

Posted by Marcia Oddi on Thursday, March 16, 2006
Posted to Indiana Courts

Ind. Decisions - Steuben County Circuit Court Judge Allen Wheat recuses himself

WLKI Angola is reporting this afternoon:

Steuben County Circuit Court Judge Allen Wheat has recused himself from further court proceedings concerning the proposed formation of a Hamilton Lake Millpond Conservancy District. The judge filed the motion last Wednesday because his wife and brother-in-law own property on Hamilton Lake. Lawyers for the two sides now must agree on a special judge to replace Wheat. A hearing to determine if there are enough signatures on petitions to meet criteria needed to stop the formation of the conservancy district is still scheduled to take place on April 28th.

Posted by Marcia Oddi on Thursday, March 16, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - 7th Circuit decides two Indiana cases today

In Dougherty, Sylvia v. Indiana Bell (SD Ind., Sarah Evans Barker, Judge), a 19-page opinion, Judge Manion concludes:

Given the discretionary terms of the plan, the correct standard to review the plan’s benefit decisions is the arbitrary-and-capricious standard. There is, moreover, no evidence of bias that would necessitate a less deferential review. Furthermore, the plan’s termination of accident benefits on Dougherty’s 1988 claim has rational support in the record; thus, under the arbitrary-and-capricious standard, we will not disturb that decision. Finally, Dougherty’s failure to exhaust administrative remedies bars consideration of her contention that the plan misclassified her 2000 and 2001 claims as sickness claims. The judgment of the district court is AFFIRMED.
Dechert, Edward v. The Cadle Co. (SD Ind., Sarah Evans Barker, Judge), a 3-page opinion, Judge Posner writes:
The main appeal challenges an award of attorneys’ fees in a protracted suit under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. An earlier stage of the litigation occupied us in Dechert v. Cadle Co., 333 F.3d 801 (7th Cir. 2003). For present purposes, the only things worth noting are that the plaintiff sought, by way of relief for the alleged violation of the Act, only statutory damages of $1,000; that after obtaining $1,000 in compensation for the defendant’s failure to comply with a discovery order he abandoned his claim for statutory damages; but that the district court nevertheless awarded the plaintiff almost $60,000 in attorneys’ fees and court costs.

The plaintiff was entitled to an award of fees and costs only if his suit could be characterized as a “successful action to enforce the foregoing liability,” 15 U.S.C. § 1692k(a)(3), meaning liability for either actual or statutory damages. * * * 2002). The plaintiff obtained neither. The $1,000 he received because of the defendant’s violation of a discovery order did not enforce any liability under the Fair Debt Collection Practices Act. * * * The defendant has not argued directly that the plaintiff was not a prevailing party in this litigation. But it argues that the plaintiff should receive a zero award of attorneys’ fees and costs because the suit accomplished nothing, and that is close enough to preserve the issue, which is anyway a pure, undebatable issue of law. We occasionally consider such issues even when they were not presented to the district judge. [citations omitted]

The defendant’s cross-appeal asks us to impose sanctions on the plaintiff for bringing this suit in bad faith. The denial of attorneys’ fees and costs is sanction enough.

Posted by Marcia Oddi on Thursday, March 16, 2006
Posted to Ind. (7th Cir.) Decisions

Law - "Crossing a Fine Line on Witness Coaching"

"Crossing a Fine Line on Witness Coaching" is the title of an interesting Adam Liptak column today in the NY Times. A quote:

Trial lawyers and law professors said yesterday that Ms. Martin's conduct [in the terrorism trial of Zacarias Moussaoui] was a flagrant violation of the order and of the federal rule of evidence on which it was based. But they added that Ms. Martin could have achieved much of what she had set out to accomplish through more subtle, quite common and perfectly lawful techniques.

"What Martin did in this case is completely out of bounds," said James A. Cohen, a trial lawyer and a law professor at Fordham University. "You don't coach with a capital C the way she did."

But the line between what is permissible and what is not, Professor Cohen continued, can be "like the difference between dusk and twilight."

Posted by Marcia Oddi on Thursday, March 16, 2006
Posted to General Law Related

Ind. Decisions - Court of Appeals issues five today

In Walter Townsend v. State of Indiana, a 5-page opinion, Judge May writes:

Walter Townsend appeals his convictions of unlawful possession of a firearm by a serious violent felon1 and intimidation,2 and the finding that he is an habitual offender.3 The trial court granted Townsend’s belated notice of appeal. Townsend raises two issues in his appeal. However, we find the trial court erred in granting Townsend’s petition for permission to file a belated notice for appeal as he failed to show he was without fault or was diligent in pursuing the belated appeal. Because we lack jurisdiction to review Townsend’s appeal, we dismiss. * * *

Accordingly, the trial court erred when it granted Townsend’s petition for permission to file a belated notice of appeal, and we dismiss his appeal for lack of jurisdiction.

In Jeffrey D. Puckett v. State of Indiana, an 11-page opinion, Judge Riley concludes:
Here, our review of the record shows that Puckett resisted the advice given by his counsel at his plea hearing, and that his counsel subsequently withdrew prior to sentencing. In addition, the sentencing hearing transcript indicates that Puckett appeared pro se during sentencing. However, the record is void of any evidence that Puckett knowingly and voluntarily waived his right to be represented by counsel at his sentencing hearing. In particular, the record fails to show that Puckett was advised of the consequences of representing himself before sentencing began. If Puckett did request to represent himself, the trial court should have made record of its determination that Puckett was competent to proceed without counsel and that he knowingly waived his right to counsel. Our state’s supreme court has previously stated that it is much easier to evaluate these claims on appeal if trial courts would err on the side of being cautious and hold a hearing to determine whether a defendant is waiving the right to counsel, even if such a hearing may not strictly be required.

Therefore, because the record does not show that Puckett effectively waived his right to counsel prior to sentencing, we conclude that the trial court violated his Sixth Amendment right to counsel. Thus, we remand for a new sentencing hearing and instruct the trial court to follow the statutory parameters for sentencing discussed in Section I above.

Scott E. Bova v. Theaodis Gary, Jr., a 12-page opinion by Judge Baker, begins:
This case presents us with an S corporation in which one person is the president, sole shareholder, and primary decision maker of the company. Indeed, for all intents and purposes, the company at issue is akin to a sole proprietorship because its only shareholder is so actively engaged in daily operations that he is essentially the company’s alter ego.

Appellant-defendant Scott E. Bova appeals from the denials of his motion in limine and motion to dismiss for failure to state a claim. In essence, he argues that it was improper for the jury to be permitted to consider evidence of the lost profits of the S corporation of appellee-plaintiff Theaodis Gary, Jr., following an automobile accident between Bova and Gary.

In these limited circumstances, we will entrust to the discretion of the trial court whether it is proper to introduce evidence of an S corporation’s lost profits following an injury to its sole shareholder and virtual alter ego. Finding that the trial court did not abuse its discretion when it allowed the introduction of such evidence, we affirm the judgment of the trial court.

Bradley W. Duncan v. Rhonda S. Duncan concerns parenting time. Affirmed.

Joint Noble-LaGrange County Drainage Board v. Acres, Inc., et al. is a 15-page opinion by Judge Baker that begins:
Appellant-respondent The Joint Noble-LaGrange County Drainage Board (Joint Board) appeals from the trial court’s order vacating the Joint Board’s Final Order establishing certain portions of the Elkhart River and its tributary branches as a regulated drain. Specifically, the Joint Board raises the following arguments: (1) the trial court erred in finding that the Joint Board failed to comply with the Indiana Nature Preserves Act1 because the act of establishing a drain is not a “taking” of nature preserves that triggers required statutory procedures; (2) the trial court erred in interpreting Indiana Code section 36-9-27-54(b)(2), which authorizes a county executive to petition for the creation of a new regulated drain to provide for the drainage of “a public highway”; and (3) appellees-petitioners City of Ligonier and Rome City Conservancy District have waived all issues on appeal because they failed to file objections to the Surveyor’s final report and schedules with the Joint Board.

Finding that the Joint Board failed to comply with the Indiana Nature Preserves Act, that the petition to establish the regulated drain was insufficient as a matter of law, and that the City of Ligonier and the Rome City Conservancy District should be dismissed because they have waived all issues on appeal, we affirm the judgment of the trial court.

Posted by Marcia Oddi on Thursday, March 16, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Fenced deer hunt case back in court "

"Fenced deer hunt case back in court: Corydon man says operation is legal" is the headline to a story by Grace Schneider in today's Louisville Courier Journal. Some quotes:

Indiana legislators wrestled unsuccessfully this session over whether to legalize or impose new restrictions on high-fence hunting operations.

While the General Assembly retreated, the arguments continued yesterday in Harrison Circuit Court with a Corydon man's challenge of state action that could close his hunting preserve.

The suit has been closely watched by lawmakers, hunting enthusiasts and the owners of about a dozen high-fence hunting operations in Indiana.

Judge H. Lloyd "Tad" Whitis ended the afternoon hearing by asking lawyers for the Indiana attorney general and William Moyer, the lawyer for hunting-preserve owner Rodney Bruce, to submit final briefs within 10 days.

The arguments centered on Bruce's request for a restraining order to stop the Indiana Department of Natural Resources from banning the hunting preserves while the agency crafts a permanent rule that agency officials said will clarify the legal issues.

In Indiana, no state law specifically authorizes fenced hunting, but the Department of Natural Resources had told Bruce and other preserve owners that they could operate if they had a game breeder's license.

But late last year, new agency director Kyle Hupfer, appointed 13 months ago by Gov. Mitch Daniels, decided state law doesn't permit fenced hunting.

Hupfer testified yesterday that while the breeder's license allows the owners to possess white-tail deer, nothing in the law permits hunting the animals. Elk are considered "exotic" animals under the state's rules and cannot be hunted at such operations, he said.

Hupfer expects the department to adopt permanent rules before the next deer-hunting season that will make clear that fenced hunting operations are illegal.

In a brief interview after the hearing, he said he thinks the legislature "has no appetite" for adopting rules to allow the hunting preserves.

See Hupfer's press release from Aug. 11, 2005 here. See also this entry from Aug. 26, 2005, titled "DNR sued over ban on deer farms."

Posted by Marcia Oddi on Thursday, March 16, 2006
Posted to Ind. Trial Ct. Decisions

Ind. Law - Check out the Fort Wayne Journal Gazette's "Legislative Scorecard"

Check out the Fort Wayne Journal Gazette's "Legislative Scorecard"

Posted by Marcia Oddi on Thursday, March 16, 2006
Posted to Indiana Law

Ind. Decisions - University of Southern Indiana wins $500,000 suit

"USI Foundation wins $500,000 suit: Donor's brother contested bequest" is the headline to a story today in the Evansville Courier& Press by Bryan Corbin, about the Indiana Supreme Court's ruling Tuesday in the case of University of Southern Indiana Foundation v. Richard A. Baker and Integra Bank N.A. Trust and Investment Management Group (see ILB entry here). Some quotes from the story:

The University of Southern Indiana stands to receive approximately $500,000 bequeathed to it in a donor's will, now that the Indiana Supreme Court has ruled in USI's favor and against the benefactor's brother. USI intends to add the bequest to the Presidential Scholars endowment.

Marian Boelson of Evansville, a widow with no children, was 73 when she died in 2003. She had named the USI Foundation as one of her beneficiaries.

In a trust she established, Boelson decreed her next-of-kin, her brother Richard A. Baker, would receive her two individual retirement accounts, her automobile and "personal property" from her condominium. Another friend was to receive $10,000. Her other property was bequeathed to the USI Foundation, the Supreme Court ruling said.

A dispute arose over what was meant by the term "personal property" in Boelson's trust, that she amended in 2001.

Baker contended in Vanderburgh County Probate Court that Boelson intended for him to receive "personal property" - to include the hundreds of thousands of dollars in financial assets. The USI Foundation was to receive only the real estate, valued at about $118,000, his attorneys contended in court documents.

The university foundation disagreed, noting that "personal property" is a technical term in Indiana law and contending Baker was entitled to Boelson's personal effects - such as furniture, jewelry and heirlooms - but not her financial assets.

Posted by Marcia Oddi on Thursday, March 16, 2006
Posted to Ind. Sup.Ct. Decisions

Law- Outstanding wine article in NY Times

The NY Times yesterday had an outstanding article titled "At Long Last, Wine in the Mail." It covers the implementation of New York's new law, and looks at changes throughout the country, although Indiana isn't mentioned. Some quotes:

Almost a year after last May's Supreme Court ruling, consumers in New York now have the opportunity to do by mail what comes naturally to wine lovers everywhere else: spending more money than they might like to accumulate more bottles than they have room to store.

Around the country, new laws have been passed permitting similar direct shipments of wine. Before the court ruling, interstate wine shipping was considered a felony in Florida; now it is legal. Texas has made it legal, too, as have Michigan and Ohio. In all, the number of states permitting direct shipments is now 33, as against 27 a year ago.

"That's a pretty dramatic change in the percentage of the market open to direct shipping," said Jeremy Benson, executive director of Free the Grapes, an advocacy group for wineries and consumers. "It's up to 78 percent of the market, from 50 percent."

Not every state has joined in. New Jersey does not permit direct shipments from out-of-state wineries. Connecticut does, but charges $1,000 for a license, which some small producers have decided is too steep (New York charges $125). And consumers have experienced frustration at the slow pace of change.

Unlike Indiana's new law, New York's doesn't require that you first visit a winery in person (whether in state or out-of-stae) before you can order from it, and that out-of-staters wishing to purchase from small winery in Indiana do the same. Instead, New York law requires UPS or Fed Ex to obtain a delivery signature from an adult.
Most states require an adult to sign for delivery, which is another cost for the winery. FedEx and U.P.S. charge wineries an additional $3 for each delivery that needs a signature. "It eats up a little bit here, a little bit there, and at the end of the day you say, what am I doing this for?" said Charles Massoud, who owns Paumanok Vineyards in Aquebogue, N.Y., with his wife, Ursula. "They call it collateral damage, that's what this is all about."
More from the story:
While consumers may be pleased with their new access, the benefits are a little less clear for wineries. Sure, they can expand their market, and, in dealing directly with consumers they are cutting out the middle men, the distributors and retail shops that occupy the two other rungs of the three-tier system that has long stood between consumers and their desired bottles. But smaller producers in particular say they are being overwhelmed by paperwork and that new licensing fees may cut off previously open markets.

"Every state has different laws," said Dave Harr, the shipping manager at Navarro. "One wants us to collect excise tax, or sales tax, or no tax, leaving it to consumers. Florida wants the tax form shipped to the consumer. New Hampshire has a specific form we have to fill out. Every state has different quantity laws, reporting procedures and fees."

Navigating through the New York system, for example, requires three different reports, Mr. Gross said: semi-annual, quarterly and monthly, showing tax payments, volume shipped, where it was shipped, and so on. For some winery owners, simply thinking about it causes a headache.

Rocking Horse Winery in Napa, Calif., makes some fine zinfandels, but when I inquired about ordering directly, Jeff Doran, the owner with his wife, Nancy, said he hoped to get around to it, but not until it was less difficult.

"It's created a quagmire for the small producer," he said. "So at the moment, we're focused on the three-tier market because that's the path of least resistance."

Posted by Marcia Oddi on Thursday, March 16, 2006
Posted to General Law Related

Wednesday, March 15, 2006

Ind. Decisions - Court of Appeals issues three today

In Dustin A. Gonser v. State of Indiana, a 12-page opinion, Judge Sharpnack writes:

Dustin Gonser brings this interlocutory appeal from the trial court’s denial of his motion to suppress. Gonser raises one issue, which we revise and restate as whether the trial court erred by denying Gonser’s motion to suppress. We reverse and remand. * * *

In summary, the State has failed to prove that an exception to the warrant requirement existed at the time of the search. Accordingly, the methamphetamine and switchblade knife should have been suppressed. Because we conclude that the search violated his rights under the Fourth Amendment, we need not address Gonser’s argument that his rights secured by Article I, Section 11 of the Indiana Constitution were violated. For the foregoing reasons, we reverse and remand the trial court’s denial of Gonser’s motion to suppress.

In Re: K.D. & K.P. (NFP) - Affirmed. [Note - this opinion is gone now, it must have been posted by mistake. Too bad, I was hoping the Court of Appeals had decided to start posting NFPs, as it has done in the past.]

In Precision Homes of Indiana, Inc., et al v. John & Tama Pickford, an 11-page opinion, Judge Baker writes:

Appellants-defendants Precision Homes of Indiana, Inc., David Van Dyke, individually and as president of Precision, Loucks Concrete Specialists, and Smith Ready Mix, Inc. (collectively, “Precision”), appeal the trial court’s denial of their motion to dismiss this suit arising out of the construction of a home for appellees-plaintiffs John and Tama Pickford. Specifically, Precision argues that the trial court erred in failing to enforce the arbitration clause contained in the Contract to Build Residence (Contract). Finding that the arbitration agreement is valid and that the Pickfords’ claims are within the scope of the agreement, we reverse and remand to the trial court with instructions to enter an order compelling arbitration. * * *

The alleged physical altercation and restraint arose from a dispute regarding the property—specifically, the condition of the foundation and Precision’s refusal to tear it out and lay a new foundation. This reasonably fits within the language of this arbitration agreement because “all claims, disputes and controversies by and between the Contractor and Purchasers arising from or related to the Property . . . shall be submitted to arbitration.” Appellant’s App. p. 90. Because any doubts about the scope of the arbitration agreement must be resolved in favor of arbitration, we find that the arbitration clause in the Contract is sufficiently broad to cover the issues of assault, battery, and false imprisonment given the context in which these claims arose. As such, the Pickfords’ claims must be submitted to arbitration in accordance with the arbitration agreement.

Posted by Marcia Oddi on Wednesday, March 15, 2006
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Evansville Courier & Press opines on Sunshine Week

The Evansville Courier& Press (whose website has become increasingly frustrating to use) has an editorial today titled "Sunshine Week." Some quotes:

On balance, Indiana has done itself proud in striving to keep government open and accessible in the aftermath of the terrorists attacks of Sept. 11, 2001. While nationwide there has been a trend toward limiting access to government information - apparently intended to protect us - Indiana has gone in the other direction

Our own view is that efforts to limit public access are more likely for the protection of public officials from the electorate, while at the same time gradually closing the door to democracy. * * *

As we said, Indiana is doing better than many other states "on balance." That's because we find it both ironic and terribly disappointing that during this week, as the Indiana Legislature completes its 2006 session, it does so without putting a stop to "serial meetings."

For the second year in a row, a bill that would have banned government boards in Indiana from holding small, closed meetings, each with less than a quorum, has died. Those who hold these meetings have found that it is a way of avoiding public scrutiny at meetings in which the public's business is discussed.

It runs afoul of everything positive that Indiana has accomplished in this important area of public policy, and it must be stopped.

See also this ILB entry from Feb. 22nd.

[More] See also this Munster (NW Indiana) Times story titled "Citizens can monitor public officials' actions by viewing online meeting minutes."

Posted by Marcia Oddi on Wednesday, March 15, 2006
Posted to Indiana Government

Ind. Law - Among the bills that passed

See the AP story here, the Fort Wayne Journal Gazette here, and an Indianapolis Star story here and here.

Here is the General Assembly's list of Enrolled Acts. Via this list, you can track when an Enrolled Act is received by the Governor, his action on the proposal, etc. Note that the list is not up-to-date. For instance, HEA 1016 (wine shipping) is not yet listed. Check the information in the lower left corner of the list to see when it was last updated. Curently it is Monday, March 13th.

Posted by Marcia Oddi on Wednesday, March 15, 2006
Posted to Indiana Law

Ind. Gov't. - Two different approaches to courts v. legislature

In a column titled "Legislative Briefs" today, Louisville Courier Journal reporter Lesley Stedman Weidenbener quotes Sen. Richard Bray, R-Martinsville on the wine shipping bill:

Wineries have been shipping to customers for years, but the Indiana Alcohol and Tobacco Commission decided last year to end that practice, saying nothing in state law allowed it. Nine Hoosier wineries sued, and a Marion County judge issued a temporary injunction, permitting the shipments to continue while lawmakers debated the issue.

"If we had not handled this bill, the Indiana wine code probably would have been rewritten by some judge somewhere," said Sen. Richard Bray, R-Martinsville. "That's not the way it should be done."

This appears to be the opposite of Senate leader Robert Garton's oft-reported position during the session that the Senate would not act on subjects that were in litigation. See, for example, this quote (via the ILB) from the Feb. 24th Louisville Courier Journal:
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.

Posted by Marcia Oddi on Wednesday, March 15, 2006
Posted to Indiana Government

Law - More on: Kentucky lawmaker would make legislators' communications private

Updating this ILB from March 5th, which included this quote from the Louisville Courier Journal:

FRANKFORT, Ky. -- All e-mails, telephone records and correspondence to and from lawmakers would no longer be public records under a bill filed Monday by state Rep. Rob Wilkey, D-Scottsville.
the Lexington Herald-Leader reports today:
FRANKFORT -- The sponsor of a controversial bill that would shield e-mails and other communications between legislators and constituents said yesterday he is shelving the proposal.

Rep. Rob Wilkey, a Scottsville Democrat, said he plans to tell lawmakers in a committee meeting next week that he is tabling the bill so it can receive a more thorough vetting over the next year.

His proposal, House Bill 699, would require a lawmaker's permission before his or her e-mails, phone records and other correspondence could be made public.

Wilkey said the bill was meant to put into law what Section 43 of the state's constitution alludes to when it gives the lawmakers privilege of "any speech or debate." He also said it would allow constituents to communicate freely with lawmakers, which is a natural part of the legislative process that must be protected.

But the Kentucky Press Association and several Kentucky newspapers' editorial pages have opposed the bill, arguing that it blocks access to vital sources of information regarding the public's business.

Wilkey said yesterday he has been "castigated" by recent editorials. But he said he believes much of that sentiment stems from the fact that e-mails among Gov. Ernie Fletcher's staff members have played a central role in the ongoing state hiring investigation.

"It's hard to get in stuff like that now when you just came off a year when e-mails were at the heart of an investigation, which is a criminal investigation," he said.

Posted by Marcia Oddi on Wednesday, March 15, 2006
Posted to General Law Related

Tuesday, March 14, 2006

Ind. Courts - Former Judge S. Hugh Dillin dies [Updated]

The Indianapolis Star is reporting that:

Former federal Judge S. Hugh Dillin, 91, who was best known for his decisions on the Indianapolis school desegregation case, has died. * * *

A native of Petersburg in southern Indiana, Dillin came to the bench with a “wonderful creative intelligence, said U.S. District Court Judge Larry McKinney.

Dillin was never one to worry too much about security, despite the sometimes controversial cases he handled. He could often be spotted at lunchtime walking across the street to a cafeteria where he usually ordered a small pizza.

“He never changed his phone number,” which was listed in the telephone book, McKinney noted. “He always answered the phone.”

[Updated 3/15/06] "S. HUGH DILLIN -- 1914-2006" is the heading to a lengthy story in the Indianapolis Star this morning by Dan McFeely and Rob Schneider. Some quotes:
U.S. District Judge Samuel Hugh Dillin, whose desegregation ruling sent thousands of black Indianapolis students to outlying township schools starting in the early 1980s, has died. He was 91.

Dillin's historic ruling -- the capstone of a 40-year tenure that included strides toward affordable housing, attention to jail conditions and efforts to unionize migrant workers -- continues to draw praise for diversifying Indianapolis and criticism for polarizing the black community. * * *

Born June 9, 1914, Dillin became interested in politics and law at an early age. A native of Petersburg, the Pike County seat, he reportedly made his first political speech when he was 16. At 21, while in law school, he was elected to the Indiana House.

Dillin received his bachelor's degree from Indiana University in 1936 and was admitted to the bar in 1938. He became a partner with his father in the Dillin & Dillin law firm in Petersburg.

He was sworn in on Oct. 6, 1961, as judge of the Southern District of Indiana. He was nominated by Indiana's U.S. senators, Democrat R. Vance Hartke and Republican Homer E. Capehart, and was appointed by President John F. Kennedy.
According to a Star article in 1997 written by Bill Shaw, who conducted several interviews with Dillin, the judge could be funny, charming, warm, self-deprecating, crabby, irascible, curmudgeonly and impatient. * * *

In 1993, Dillin went on senior status, a semiretirement position that allowed him to work a lightened caseload. His wife died in 1998.

Summing up his own life, Dillin told The Star in 1997: "Look, if you know who you are, where you came from, and your people have always been in government and the law, you just think that's what you're supposed to do."

Posted by Marcia Oddi on Tuesday, March 14, 2006
Posted to Indiana Courts

Ind. Law - Wine shipping on its way to Governor Daniels

A release just received from the Indiana farm winery industry:

The Senate has adopted House Bill 1016 conference committee report by a vote of 48-2. The bill now goes to Governor Mitch Daniels for his signature. Now that both chambers have adopted the conference committee report, the nine Indiana wineries who filed a lawsuit in November 2005 in Marion County Superior Court will drop their suit.

“We want to again thank the legislators who helped us reach this compromise, notably Senator Garton, Representative Whetstone and Representative Kuzman,” said Larry Satek, president of the Indiana Winegrowers Guild and owner of Satek Winery in Fremont, Ind. “Because of their help – and the help of many other legislators and Indiana farm winery customers – many of our farm wineries are no longer in danger of going out of business.

“As we’ve said before, there are still challenges up ahead for our farm wineries, and we look forward to working with legislators in the coming year to address these challenges. For example, the face-to-face provision in HB1016 is not consumer-friendly,” said Satek. This provision requires wineries to sell wine to a first-time consumer through a face-to-face transaction instead of by direct shipment.

As HB 1016 was originally written, it would have devastated Indiana farm wineries’ business and significantly reduced consumers’ choices. Legislation considered earlier this session would not only have banned wineries from direct shipping to customers and retail outlets, but also would have jeopardized their ability to sell on the premises via tasting rooms.

A core issue at stake nationally is whether the three-tier distribution system should be mandated. Wholesalers – part of the three-tier liquor distribution system – will always serve an important role in the distribution of alcohol. Indiana wineries’ business, however, was not built on the three-tier system. The ability to sell directly to consumers and retailers is the foundation of Indiana wineries’ business model. This was the very thing in jeopardy under the original language in HB 1016 and in other legislation considered this legislative session.

Posted by Marcia Oddi on Tuesday, March 14, 2006
Posted to Indiana Law

Ind. Gov't. - Good news from the PAC for Sunshine Week!

Public Access Counselor Karen Davis has now made available online "selected informal inquiry responses of the Public Access Counselor for 2004, 2005 and 2006."

The name of the link is "Informal Opinions." Ms. Davis reports: "I will continue to add new [informal] opinions as they are released."

In addition to using the link given here, the informal opinions may be accessed from the main page of the PAC site via a bar along the top of the page. Notice two other new additions, "Upcoming Presentations" and "FAQs" (still in process). I understand that the FAQs will include a discussion of the distinction between "advisory opinions" (which have always been available online) and "informal opinions."

The ILB has most often run across the "informal opinion" when a newspaper story quotes the PAC, but there is no opinion posted on the PAC site. That is because it was an "informal" opinion. In the future, if an informal opinion is given in writing, it will be available online.

This is a welcome addition. Several times over the past year the ILB has expressed concern:

"that informal opinions of the Public Access Counselor (PAC) (which, along with the Counselor's formal opinions, are of course public records) are not readily accessible to the public. It seems to me ironic that such a problem of access would exist in the office of the Public Access Counselor. [this is from the 9/17/05 ILB]
Well, now they are. And they are another indicator of the prodigious amount of high-quality work that the tiny PAC office turns out.

Posted by Marcia Oddi on Tuesday, March 14, 2006
Posted to Indiana Government

Ind. Decisions - 7th Circuit issues one Indiana opinion today

In Pinkston, James v. Madry, Anthony (ND Ind., Robert L. Miller, Jr., Chief Judge), a 25-page opinion, Judge Coffey writes:

COFFEY, Circuit Judge. On May 3, 2000, James Pinkston filed a complaint in federal court pursuant to 42 U.S.C. § 1983 alleging that two correctional officers at the Indiana Department of Corrections Maximum Control Complex in Westville, Indiana, violated his Eighth Amendment rights when they allowed another prisoner to assault him and thereafter refused to assist him in receiving adequate medical care. While discovery was underway, the district court assigned a magistrate judge to dispense with all non-dispositive matters and to file proposed findings of fact and conclusions of law. See 28 U.S.C. § 636(b)(1)(B). The magistrate judge subsequently convened an evidentiary hearing and, after performing a de novo review of the evidentiary hearing transcript and the magistrate judge’s recommendations, the district court adopted the magistrate judge’s decision granting the defendants-appellees motion for “Judgment on Partial Findings” under Federal Rules of Civil Procedure 52(c). We affirm. * * *

Despite Pinkston’s suggestion that we should do otherwise, Judge Miller is a most knowledgeable, experienced and well-respected Article III judge and, without strong evidence to the contrary, we will take him at his word when he informs us that he has conducted a de novo review and considered the plaintiffs objections in compliance with § 636(b)(1). * * * To do otherwise would be contrary to our very system of law. Accordingly, we refuse to accept Pinkston’s invitation to inquire as to whether the district court “rubber stamped” the magistrate’s opinion, and hold that a district court’s assurance in a written order that the court has complied with the requirements of 28 U.S.C. § 636 is sufficient, in all but the most extraordinary of cases, to resist assault on appeal.

The decision of the district court is AFFIRMED.

Posted by Marcia Oddi on Tuesday, March 14, 2006
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues two today

In Victor Orndorff v. New Albany Housing Authority, a 9-page opinion, Judge Riley writes:

The Orndorffs raise two issues on appeal, which we restate as: (1) Whether the NAHA is a political subdivision as statutorily defined by the Indiana Torts Claims Act (ITCA); and (2) Whether the Orndorffs substantially complied with the notice provisions of ITCA. * * *

Nevertheless, the NAHA did not receive any notice from the Orndorffs within the 180 day period following the incident, let alone a written notice purportedly complying with the provisions of the ITCA. Instead, the Orndorffs now rely on the NAHA’s own knowledge and presence at the night of the shooting, to claim that they substantively complied with the ITCA’s notice requirements. We disagree. As we held previously in Fowler, 773 N.E.2d at 865, actual knowledge of the occurrence on the part of the political subdivision or an employee of the political subdivision does not satisfy the notice requirement of the ITCA. Since the Orndorffs do not present us with any compelling argument or evidence to deviate from our established case law in Fowler, we find that the trial court properly decided that the Orndorffs had not substantially complied with ITCA’s notice requirements.

In Grange Insurance Company v. Cheryl Graham, Chester Graham, et al., Judge Friedlander writes:
We restate the single issue presented for review as follows: Are Appellees entitled to underinsured motorist coverage when the tortfeasor’s liability insurance has paid a per accident limit that is equal to the per accident limit of the policy under which all of the appellees seek to recover? We reverse and remand with instructions.

Posted by Marcia Oddi on Tuesday, March 14, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides probate case

In University of Southern Indiana Foundation v. Richard A. Baker and Integra Bank N.A. Trust and Investment Management Group, a 9-page, 5-0 opinion, Justice Boehm writes:

We hold that the trust created by Marian Boelson left her tangible personal property and any interest she retained in her individual retirement accounts to her brother and gave the remaining assets to the University of Southern Indiana Foundation. * * *

The probate court’s order directing the trustee to distribute all of Boelson’s personal property to Baker and the real property to USIF is reversed. This case is remanded with instructions to order the trustee to pay the trust’s administrative expenses, to distribute $10,000 to Rucks, to distribute Boelson’s IRAs and any asset that passes under Boelson’s will and all automobiles, furnishings and the other personal property contained in Boelson’s condominium to Baker, and to distribute the trust’s remaining real and personal property to USIF.

Posted by Marcia Oddi on Tuesday, March 14, 2006
Posted to Ind. Sup.Ct. Decisions

Courts - Kentucky law school maintains brief bank

The Kentucky Law Blog notes today that the Chase College of Law at Northern Kentucky University has a unique research tool - briefs from decisions of the Kentucky Supreme Court and Court of Appeals.

It sure would be nice
to have public, online access to the briefs from decisions of the Indiana Supreme Court and Court of Appeals.

Even better would be briefs as they were filed in cases pending before the Supreme Court and Court of Appeals. A model for this is the 7th Circuit.

Posted by Marcia Oddi on Tuesday, March 14, 2006
Posted to Courts in general

Ind. Gov't. - Marion and Porter County Auditors in the news today

The Indianapolis Star reports today:

Marion County Auditor Martha Womacks filed a lawsuit against the city Monday to force Indianapolis Mayor Bart Peterson to give her office control over payroll and check writing.

Womacks, a Republican whose signature is on each government check, said the city has refused to follow a 2005 state law that spells out the duties and divisions between her office and the city controller. The legislature intended to set up a system of checks and balances, she said, by allowing the city to control the budget process while the auditor writes the checks.

Under the leadership of Peterson, a Democrat, the city took control of the county budget for the first time last summer and did not provide the auditor's office with the personnel or resources to handle the payroll. Womacks said the city's checks to vendors and more than 7,000 employees are valid, though she argues the process was illegal.

The Munster (NW Indiana) Times reports today:
VALPARAISO | The Porter County Council and Board of Commissioners jointly decided to offer help on Monday to county Auditor Sandy Vuko in fixing recent accounting problems. * * *

The city of Valparaiso, the town of Porter and others are now facing budget shortfalls of up to about 10 percent because of a series of incorrect calculations, missed deadlines and delays in the mailing of tax refunds -- incidents that all involved the auditor's office. [Councilman Jim Burge] said county officials cannot ignore the volume of mistakes and Vuko's subsequent refusal to meet with officials to explain what went wrong.

Burge listed several possible courses, from meeting with her to offering help to removing her from office. At least for now, the group rejected the idea of removing her from office, saying they do not have the authority.

[Updated 3/15/06] See also this lengthy Chesterton Tribune story of 3/14/06 on the Porter County auditor issues.

Posted by Marcia Oddi on Tuesday, March 14, 2006
Posted to Indiana Government

Ind. Courts - Judge Villalpando's allegations must be properly investigated

"Villalpando's allegations must be properly investigated" writes the Munster (NW Indiana) Times today in its editorial. It begins:

Our opinion: Lake Superior Court Judge Jesse Villalpando's complaints about the Cantrell family's interconnections need to be taken seriously by the Indiana Commission on Judicial Qualifications.

Lake Superior Court Judge Jesse Villalpando believes his real opponent is neither judicial candidates Eduardo Fontanez nor Stanley Jablonski but political powerbroker Robert Cantrell.

Villalpando says he believes Cantrell persuaded both Fontanez and Jablonski to run against him in the Democratic primary.

Fontanez, a Hammond lawyer, is a former legal intern for Judge Cantrell. Jablonski, a Merrillville lawyer, is chief public defender in Judge Julie Cantrell's court. The judge is Robert Cantrell's daughter.

That, however, is the least of Villalpando's accusations about the Cantrells.

Villalpando said he has repeatedly complained about that family's dealing with the courts to the Indiana Commission on Judicial Qualifications.

Posted by Marcia Oddi on Tuesday, March 14, 2006
Posted to Indiana Courts

Ind. Gov't. - State lacked coal mine inspections during 2005

An AP story available this morning via both the Louisville Courier Journal and the Indianapolis Star reports:

INDIANAPOLIS (AP) -- A state official acknowledges that required state inspections of Indiana's seven underground coal mines were not conducted for at least a year before the deaths of 12 workers in a West Virginia mine.

State law requires quarterly inspections of Indiana's underground mines, but state labor Commissioner Miguel Rivera said he called off those reviews because they duplicated work by federal inspectors and he wanted to devote resources from the state Bureau of Mines on other priorities.

"I made that call," Rivera told Indianapolis television station WTHR for a story Monday. "Our focus is on training miners and mine rescue."

Rivera acknowledged the lack of inspections after WTHR requested copies of state mine inspection for the past two years.

Rivera, who was appointed by Gov. Mitch Daniels last year to head the Labor Department, sent a letter to the agency's sole mine inspector just days after the West Virginia deaths in January, instructing him to "commence inspection" of the Indiana mines at least four times a year.

John Alaria, who as deputy commissioner of the state's Bureau of Mines was the agency's sole employee, protested in a Jan. 9 letter to Rivera that he had been told for months to defer inspections to the federal agency and that one person could not handle the ordered work load.

"It takes a complete quarter to inspect one mine of any size in its entirety, let alone seven in one quarter," Alaria wrote.

Indiana is the nation's eighth-largest coal producer, with about 1,500 workers in the underground mines concentrated around Vincennes in the southwestern part of the state. Officials expect about 3,000 more miners to be hired as five new mines open up during the next few years. * * *

Rivera said it was "pure coincidence" that he ordered the resumption of state inspections so soon after the West Virginia deaths, saying he had been planning the move for some time.

"I don't see a need to duplicate those sorts of efforts," he said of the state and federal inspection programs. "However, the state Legislature has decided that's what we will do, so that's what we're doing."

Alaria inspected all seven mines in seven weeks after Rivera's order, spending no more than four days at any one mine, WTHR reported. The state mining bureau, which state law says should have a director and a chief mine inspector, has no workers after Alaria resigned last week to take a job at a mining company.

Access WTHR's report, including video, here. The site also has links to a number of documents.

The Louisville Courier Journal has had a number of recent stories on mine inspections in Kentucky.

Posted by Marcia Oddi on Tuesday, March 14, 2006
Posted to Indiana Government

Ind. Law - Still more on wine shipping

Lesley Stedman Weidenbener of the Louisville Courier Journal has a good wrap-up today on the wine shipping bill, HB 1016. Some quotes:

INDIANAPOLIS — The Senate seems poised on the session's last day to send the governor a legislative compromise that would let wineries ship directly to customers.

The House last night approved [the conference committee report on] House Bill 1016, which would let wineries ship as many as 24 cases per year to any customer whom they confirm is at least 21 years old. It passed 92-3 but still needs final Senate approval.

The bill would apply to all wineries that sell fewer than 500,000 gallons in Indiana per year. It also limits the amount that a winery could ship in Indiana to no more than 3,000 total cases a year.

The compromise comes after a tumultuous session for wineries that included the House's approval of a bill that in essence eliminated any direct shipment and then the Senate's shelving a plan allowing limited shipments because leaders didn't want to interfere with a pending lawsuit.

The plan has the backing of all 32 of the state's wineries as well as wine wholesalers, who had originally fought direct shipping. * * *

The debate about wineries began last year, when the U.S. Supreme Court ruled that states can't treat out-of-state wineries differently from those inside the state.

For years -- even though it wasn't explicitly allowed by law -- the state let Hoosier farm wineries ship bottles directly to in-state customers. However, an out-of-state winery could ship only to Indiana through a distributor to a retailer.

But the Supreme Court decision meant Indiana couldn't ban a direct shipment to an individual Hoosier from a California winery if it permits Huber Orchard and Winery in Starlight to ship to that person.

So the Indiana Alcohol and Tobacco Commission decided to stop all direct shipments. Hoosier wineries sued and a judge issued a temporary injunction, permitting the shipments to continue until after the session so lawmakers could debate the issue.

But Senate President Pro Tem Robert Garton, R-Columbus, has a policy against considering bills that would create a winner or loser in legislation. So those wineries have agreed to drop their suit if the bill passes.

"If passed, this bill will help make it possible for Indiana's farm wineries to continue to operate and prosper," said Larry Satek, president of the Indiana Winegrowers Guild. "There are still challenges up ahead, but this bill today is a step in the right direction."

Yesterday, Garton said that decision by the wineries makes the Senate vote possible. The lawsuit was "the only reason we held it up."

The Indianapolis Star also has a report on the wine shipping bill half-way through this story. A quote:
The tentative deal represents a compromise between Indiana's wineries and distributors * * *. Had they not, a court could have taken a more extreme action -- by either outlawing wine shipments or allowing them on an unlimited basis.

"There's the old saying that you deal with the devil that you know as opposed to the devil that you don't know," said Sen. Brent R. Steele, R-Bedford, who was active on the wine legislation.

"No one wants to roll their dice in the court system, and I think that was the impetus to try and reach an agreement on this."

Posted by Marcia Oddi on Tuesday, March 14, 2006
Posted to Indiana Law

Monday, March 13, 2006

Ind. Law - Conference committee report on wine shipping filed in House and Senate

Here is the filed Conference Committee Report on HB 1016.

SECTION 34, beginning at line 30 of p. 21 (numbered "18" on the document) and continuing to p. 25, adds a new chapter IC 7.1-3-26, titled Direct Wine Seller's Permit.

The new IC 7.1-3-26-5, at line 43, provides: "A person located within Indiana or outside Indiana that wants to sell and ship wine directly to a consumer must be the holder of a direct wine seller's permit and comply with this chapter."

The new chapter provides that both in-state and out-of-state sales:

A seller may sell and ship wine directly only to a consumer who meets all of the following requirements: * * * (5) * * * the consumer has provided to the seller in one initial face-to-face transaction at the seller's place of business appearing on the seller's application for a direct wine seller's permit or any locations authorized by IC 7.1-3-12-5 all the following [identification information].
The CCR would also make modifications to the existing law concerning a farm winery permit, expanding the authority under the permit, including adding a new clause 11 to IC 7.1-3-12-5 to read:
The holder of a farm winery permit: * * *
(11) is entitled to sell and ship the farm winery's wine to a person located in another state in accordance with the laws of the other state.
The above language is at p. 13 (numbered "10" on the document) of the CCR, lines 34-36.

In short, under these changes, if I understand them correctly:

(1) An Indiana consumer may have wine shipped directly to them from an Indiana winery only after having had one initial face-to-face transaction at the seller's place of business. An Indiana consumer may have wine shipped directly to them from an out-of-state winery only after having had one initial face-to-face transaction at the seller's place of business. In both cases, the wineries, whether located inside or outside Indiana, has to have an Indiana Direct Wine Seller's Permit. [So much for reading a review of a wonderful wine from a small winery in another state and sending off an order -- you'll have to visit in person first, and the out-of-state winery will need to have an Indiana Direct Wine Seller's Permit.]

(2) An out-of-state consumer may have Indiana wine shipped directly to them if the Indiana winery has a farm winery permit and complies with the laws of the state where the consumer lives.

Posted by Marcia Oddi on Monday, March 13, 2006
Posted to Indiana Law

Ind. Courts - Clinton Superior Court Judge Kathy Smith featured

The Frankfort Times has a story by Martha Fulkerson on a talk Clinton Superior Court Judge Kathy Smith gave last Friday to the Frankfort Rotary Club. Some quotes:

Smith has served on the bench for more than 20 years. She said the court processes an estimated 2,500 cases annually and operates on a $200,000 budget, which includes allotment for pauper attorney fees.

“The purpose of the court is not to bring in a profit,” she said. “The real purpose is to resolve conflict.”

Despite what is seen on TV, jury trials in Smith’s courtroom are rarely a necessary way to help people work out their problems. Plea agreements, bench trials and guilty pleas are the three most common ways of bringing closure to a case, she said.

Smith said that in her job it is difficult to take testimony from the two sides and find the truth, since people will believe what they want to.

“When we talk about crime, it’s all a matter of perception and we all see things through our own rose-colored glasses,” she said.

Presenting an example, Smith told an anecdote about an experience in law school when students were asked to describe the suspect in a staged crime. The class gave various descriptions of the suspect’s weapon. None, however, guessed correctly. The subject was waving a banana.

Perception is different, too, when it comes to her decision, Smith noted. Many times, victims’ families think the courts are too lenient in imposing sentences; whereas defendants’ relatives think they are too harsh.

Posted by Marcia Oddi on Monday, March 13, 2006
Posted to Indiana Courts

Ind. Law - More on: Compromise reportedly reached on wine shipping legislation

"Lawmakers reach tentative agreement on winery bill" is the headline of an AP story by Deanna Martin filed earlier this afternoon. Some quotes:

Small wineries could ship wine to Indiana customers under a tentative agreement by lawmakers - a move many wine makers say is crucial to their business.

The compromise legislation would create a direct wine seller's permit so that Indiana wineries and those in other states could ship to Indiana residents.

Wineries that sell less than 500,000 gallons of wine in Indiana and meet other qualifications would have to pay $100 a year for the permit. They would be able to ship 3,000 cases of wine to Indiana customers each year.

Customers ordering wine would first have to visit the winery in person and complete a face-to-face transaction, during which the winery could check their ID. Customers could then order up to two cases per month that could be shipped to them at home.

"If passed, this bill will help make it possible for Indiana's farm wineries to continue to operate and prosper," said Larry Satek, president of the Indiana Winegrowers Guild and owner of Satek Winery in Fremont.

Senate President Pro Tem Robert Garton said earlier this session that the bill should not move forward because at least one lawsuit is pending on the issue. He said the Senate's practice was to not become involved in deciding the outcome of lawsuits.

However, wine industry officials say the nine Indiana wineries that filed a lawsuit in November in Marion County Superior Court said they will drop the complaint if both the House and Senate pass the compromise bill. The legislative session is slated to end Tuesday.

Garton said he approved of the compromise bill as long as the lawsuits are dropped.

"That's the only reason we held it up," said Garton, R-Columbus.

The winery legislation was a reaction to a U.S. Supreme Court decision last spring that overturned laws in New York and Michigan against buying wine directly from out-of-state wineries. The ruling prompted Indiana alcohol regulators to issue a letter to in-state wineries saying they could no longer ship directly to Indiana customers.

My question. Does this compromise resolve the issues presented by the U.S. Supreme Court ruling? Will the proposed new law withstand challenge in light of the Supreme Court ruling? According to the AP report, it will "create a direct wine seller's permit so that Indiana wineries and those in other states could ship to Indiana residents." However, "Customers ordering wine would first have to visit the winery in person and complete a face-to-face transaction, during which the winery could check their ID." In other words, if you want to order wine from a Bloomington winery, or a Washington State winery, you may, but you have to go there first, in person.

Posted by Marcia Oddi on Monday, March 13, 2006
Posted to Indiana Law

Courts - Seattle Judges keep many cases secret

The Seattle Times has a number of stories today about secrecy in the King County legal system. Here is one of them, headlined "Penchant for secrecy: One judge has sealed 12 cases from view." Some quotes:

The judge, speaking from the bench, told the baffled lawyer: "But for the unusual facts of this case, we wouldn't be doing this."

To the lawyer, Michael Killeen, the "this" was unheard of. Sharon Armstrong, a King County Superior Court judge, had sealed the entire case file in a lawsuit over a Metro bus accident. What's more, she had barred the public from her courtroom — in the middle of trial, after a newspaper reporter had stepped in to watch.

She was trying the case in private, deciding who was right and who was wrong, who would pay and how much — and all in a public courtroom, with a sign on the door saying "Closed."

Killeen didn't know it, but the sealing of files extended well beyond this case. A Seattle Times investigation has found hundreds of civil suits sealed improperly in King County since 1990 — lawsuits accusing doctors of negligence, lawyers of misconduct, public agencies of harmful mistakes. And no judge has sealed more cases than Armstrong. * * *

What makes this all so puzzling is Armstrong's overall reputation for excellence. Lawyers and judges describe her by stacking adjectives of praise. "I think Sharon Armstrong is a superb judge," said Presiding Judge Michael Trickey. "She is thoughtful, intelligent, dedicated." Judge William Downing said: "She is bright, talented, industrious, entirely committed to the rule of law and attentive to all her duties."

She is entrusted with complex civil cases and oversees all of the court's asbestos litigation. She handles a docket so large that she sometimes hears motions on weekends. And she has served as chief of both the civil and criminal divisions.

So what explains all those sealed cases? Armstrong declined comment, saying it would be inappropriate to talk about cases that The Times may be filing motions to open. But one answer may be: When Armstrong was sealing entire cases, she wasn't being challenged. The parties went along, and the public didn't know.

This story is part of a Seattle Times Special Report: Your Courts, Their Secrets.

One story the ILB found particularly interesting involves how the Seattle Times went about finding the sealed cases. As they write: "Imagine trying to find a needle in a haystack if you don't even know where the haystack is." Some quotes:

But no one in the court system could say how many cases involved sealed records. There was no system to determine which cases had been sealed, much less to assess whether they had been sealed appropriately.

Mayo, an expert in computer-assisted reporting, developed a method of searching court databases for indicators of sealed files. The state Administrative Office of the Courts helped run computer searches of electronic court dockets for civil lawsuits, not including other types of cases such as divorces, adoptions and probate.

"It was kind of a catchall, but the state courts were great. They were very cooperative," Mayo said.

Many hours of overnight computer runs produced 10,337 cases going back to 1990. Think of those as the haystack.

Next came looking for needles, which was tedious and meticulous work. Armstrong spent months probing computer records and shelved paper files at the King County Superior Court.

The clerk's office had sealed almost 300 cases by mistake, errors the office has since corrected. Beyond that, it was clear that judges in the county have improperly sealed court files, often not even indicating why.

Our investigation found 420 civil cases since 1990 that were sealed entirely. "I never anticipated finding hundreds of cases that had been sealed completely," Armstrong said. "To seal an entire case is really an extraordinary action."

"It was completely unexpected," added James Neff, Times investigations editor.

In addition to the 420 cases where the whole file was sealed, the reporters also discovered more than a thousand that were sealed in part.

After finding the sealed cases, Armstrong and Mayo pulled the judges' sealing orders to determine whether the cases had been sealed properly. Then, with the help of Steve Miletich, a third reporter assigned to the project, they researched hundreds of cases, starting with little more than the names of the parties involved.

No one questions that there are legitimate reasons to sometimes seal parts of a judicial record, but the standard should be high. The Washington Constitution says, "Justice in all cases shall be administered openly, and without unnecessary delay."

The Washington Supreme Court has said since the 1980s that records should be sealed rarely, and only when a compelling reason exists.

In Dreiling v. Jain, a 9-0 landmark decision in 2004, the Supreme Court reaffirmed that principle while ordering records opened in a civil case. Justice Tom Chambers wrote the opinion, saying: "The open operation of our courts is of utmost public importance. Justice must be conducted openly to foster the public's understanding and trust in our judicial system and to give judges the check of public scrutiny. Secrecy fosters mistrust."

Posted by Marcia Oddi on Monday, March 13, 2006
Posted to Courts in general

Ind. Courts - More Q&As posted today for Court's CMS Public Notice of Contracting Opportunity (PNCO)

More Q & As have been posted, dated March 13th, on the Court's Judicial Technology and Automation Committee (JTAC) website. Access them directly via this link. This appears to be an inclusive html list, incorporating earlier-posted Q & As. Here are some of today's Q & As that the ILB noted particularly:

#4. Question: Requirement 4.5.5 – Please clarify this requirement. Do you anticipate doing a national records search from within the CMS?

Answer: As amended on 3/10/2006, requirement 4.5.5 has been WITHDRAWN.

#6. Question:
Pg 4 states “…if all Indiana courts have a 21 st century CMS that connects each court's system with every other court's….” Pg 5 states “…would reside in a state data center, be available to all Indiana courts through the Internet or other high-speed network…” Is it anticipated that the state of Indiana will have one (1) integrated statewide system or possibly 92 (counties) / 386 (trial courts) systems?

Answer: The Division anticipates purchasing and maintaining one system which will be made available to all counties.

#7. Question: Pg 5 states “…and be connected through interfaces…such as government agency (including law enforcement and BMV) information…” Are interfaces required to local law enforcement agencies? If so, are they identified in Section H – Interfaces?

Answer: At this time, the Division is not requiring local law enforcement agency interfaces. However, on an individual deployment basis, a county may request an interface with local law enforcement. Please see Section L. Pricing (2.b.iii.) These interfaces are not identified in Section H. Interfaces.

#8. Question: Pg 5 states “The Division seeks to have the CMS operating in a limited number of trial courts and clerks' offices within a period of six months…” Please define ‘limited number'.

Answer:
This is further defined in Section F. Proposed Deployment Schedule.

#9. Question: Pg 6 states “Although the Supreme Court has not required all courts to adopt a statewide CMS and is unlikely to do so in the near future…” Pg 26 states “Ongoing coexistence. In an ongoing coexistence scenario, both the statewide CMS system and an existing system will be used within the same county on a permanent basis. The division of the systems may be by court (e.g., one court uses the statewide CMS and the other uses an existing system) or by case type (e.g., a single court uses the statewide CMS for some case types and another CMS for other case types).” What is the extent of the procurement? Will the successful vendor have the exclusive right to sell to all 92 counties?

Answer: The Division anticipates purchasing and maintaining one system which will be made available to all counties. The successful vendor will not have the exclusive right to sell to the 92 counties. This does not preclude the proposal to the Division of a pricing structure on a per county basis.

#10. Question:
Can the Division identify how many of the courts would purchase the new system?

Answer: The counties will not purchase the system individually for use in their courts. The Division anticipates purchasing and maintaining one system which will be made available to all counties for use in their courts.

#24. Question: Does the Respondent need prior Court Systems experience?

Answer: Page 5 of the PNCO states that the Division anticipates that the statewide CMS will use the successful vendor's existing case management products with the capacity for necessary customizations. In addition, Section F. Proposed Deployment Schedule. states that it is the goal of the Division to complete delivery of a functioning CMS to at least three (3) counties within six (6) to eight (8) months after a contract or letter of intent is signed.

#25. Question: Why doesn't the State just purchase an already existing CMS / COTS system (Commercial Off the Shelf System)?

Answer: Please see the Overview of the PNCO. In addition, page 5 of the PNCO states that the Division anticipates that the statewide CMS will use the successful vendor's existing case management products with the capacity for necessary customizations.

#26. Question: Will the State accept proposals of other viable solutions or will they only accept a full-blown CMS?

Answer: Page 5 of the PNCO states that “Vendors should feel free to identify why they believe their proposal, while not meeting such requirements, nevertheless more efficiently and effectively meets the overall goals and objectives of the Supreme Court with respect to trial court CMS.”

#27. Question: How is the data going to be stored / shared, centralized or by each county?

Answer: The Division anticipates that data will be stored on a server to be maintained at the State's Data Center in Indianapolis for all courts who utilize the statewide CMS. However, section H. Interfaces. requires that courts electing to utilize their existing CMS will be linked to the statewide CMS for data-sharing purposes.

Access the most recent earlier ILB entry here.

Posted by Marcia Oddi on Monday, March 13, 2006
Posted to Indiana Courts

Ind. Law - Compromise reportedly reached on wine shipping legislation

A release just in from representatives of the Indiana wine industry reports:

Vote expected today (Monday, March 13) on farm winery legislation (House Bill 1016).

The 31 operating Indiana farm wineries have reached an agreement with alcohol wholesalers on the conference committee report to HB 1016, which is expected to be filed and signed by conference committee members this morning. As soon as both the House and Senate approve the conference committee report by a simple majority in each of their chambers, the nine Indiana wineries who filed a lawsuit in November 2005 in Marion County Superior Court have agreed to drop the suit.

“On behalf of the 31 Indiana wineries, we want to thank legislators from both parties for their invaluable assistance and time in helping us reach the agreement on this conference committee report,” said Larry Satek, president of the Indiana Winegrowers Guild and owner of Satek Winery in Fremont, Indiana.

“Many legislators were instrumental in crafting this compromise, notably Senator Garton and Representative Whetstone. Other legislators who played a key role include Senators Lanane, Lewis and Steele, and Representatives Robertson, Welch, Koch, Stutzman, Kuzman, Bardon, VanHaaften and Long. We are grateful there are many elected officials, and customers, who are passionate about helping Indiana farm wineries and agri-tourism.

“If passed, this bill will help make it possible for Indiana’s farm wineries to continue to operate and prosper,” said Satek. “There are still challenges up ahead, but this bill today is a step in the right direction.”

As HB 1016 was originally written*, it would have killed Indiana’s farm wineries’ business and consumers’ choices. This legislation, and provisions of some past bills, would not only have banned wineries from direct shipping to customers and retail outlets, but also would have jeopardized their ability to sell on the premises via tasting rooms.

A core issue at stake nationally is addressing the outdated three-tier liquor distribution system. Indiana wineries’ business was not built on the three-tier system, and direct sales to consumers and retailers are the foundation of Indiana wineries’ business model (up to 40 percent of sales for some wineries).

_______
*Presumably this means "as the proposed compromise was originally written," as HB 1016, as passed by both houses, concerned pretrial fees. The conferees apparently have now agreed to strip HB 1016 and insert the compromise wine shipping language, which then must be approved via passage of a conference committee report on HB 1016 in each house.

The language of the conference committee report has not yet been filed. When it is, it will be linked to here.

Posted by Marcia Oddi on Monday, March 13, 2006
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues two today

In American Family Mutual Ins. Co. v. Eugene Ginther, Robert Beckner, et al, a 10-page opinion, Judge Vaidik writes:

American Family Mutual Insurance Company appeals the trial court’s order that it is liable for post-judgment interest in the amount of $38,000.00 to Eugene H. Ginther, Mary Ginther, James O. Clay, and Imogene Clay (collectively “Plaintiffs”) on a $100,000.00 judgment Plaintiffs obtained against American Family’s insured, Robert Beckner. Because the insurance policy at issue requires American Family to pay compensatory damages for which its insured is legally liable and because post-judgment interest is part and parcel of a money judgment, we affirm the trial court’s order that American Family is liable for post-judgment interest in the amount of $38,000.00.
In Mark Oliver v. State of Indiana, a 16-page opinion, Senior Judge Ratliff concludes:
The post-conviction court did not err by finding that Petitioner’s claim was barred by laches. There was a sufficient factual basis to support Petitioner’s guilty plea. The record does not reveal that Petitioner simultaneously protested his innocence while pleading guilty. Petitioner’s plea was knowingly, intelligently, and voluntarily made. Last, Petitioner did receive effective assistance of counsel.

Posted by Marcia Oddi on Monday, March 13, 2006
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Indiana hearsay/confrontation clause case to be heard by U.S. Supreme Court

Next Monday, March 20th., the U.S. Supreme Court will hear oral arguments in Hammon v. Indiana (6/16/05 IndSCt) , 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.

Here is a link to the briefs in the case.

The South Bend Tribune today has a story by Joseph Dits about Thomas M. Fisher of Indiana's attorney general's office, who is to argue the case for the State, and his practice sessions at Notre Dame. Some quotes:

That case came out of Miami County. On Feb. 26, 2003, two Peru, Ind., police officers were dispatched to a disturbance at Amy Hammon's home. Hammon at first said nothing was wrong. But after one officer saw broken glass on the floor and an open flame from a space heater, Hammon said her husband had thrown her to the ground and pressed her face in the glass.

She was subpoenaed but failed to show up for her husband's trial on domestic battery charges. Prosecutors won a guilty verdict anyway, based on Hammon's statement at the crime scene.

Her husband's attorney took it to Indiana's Court of Appeals and Supreme Court, arguing that the statement was hearsay -- that is, it was testimony given outside of court. The Sixth Amendment to the Constitution says someone accused of a crime has "the right ... to be confronted with the witnesses against him."

But the Indiana courts upheld the conviction. They found that the crime-scene statements were admissible because they were what are known as "excited utterances" -- that is, they were so fresh that the person didn't have time to craft a lie.

Now, Fisher said he must show the U.S. Supreme Court that using such comments fits in with the Sixth Amendment.

It's an example of the so-called "evidence-based prosecution," which proves helpful because so many victims of abuse don't testify, making these very tough cases to prove. Among several reasons, victims fear retaliation or say, "I still love him," or want to let the bad memory fade, said Ken Cotter, St. Joseph County's chief deputy prosecutor.

But the use of out-of-court testimony hit a major hurdle in 2004 when the Supreme Court decided a case that set limits on it.

That case was Crawford v. Washington. For more about it, see this entry from the June 13, 2004 ILB, including this quote from the Seattle Times:
In this case, decided in March, the Supreme Court ruled that defendants have a constitutional right to cross-examine witnesses against them. The case involved a taped statement from the defendant's wife, which was played at trial even though the wife did not testify. The ruling has created concerns over whether tape recordings of 911 calls can be admitted as evidence.
(BTW: The winning attorney in the Crawford case was also named Fisher.)

Posted by Marcia Oddi on Monday, March 13, 2006
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Use of mouth swabs for drug testing receives continued scrutiny in Porter courts

"Attorneys teaming up to challenge drug test: Group looking at hiring lab to retest mouth swabs" is the headline to this story by Bob Kasarda in the Munster (NW Indiana) Times. Some quotes:

VALPARAISO | A group of defense attorneys is exploring the possibility of teaming up and hiring a lab as part of an ongoing challenge to the reliability of an oral drug test used by the county's adult probation department.

The idea is to hire the out-of-state lab to retest the mouth swabs that are being used to show that a group of offenders violated their home detention or probation by using cocaine, defense attorney Dan Berning said.

The approach was discussed Friday as Berning and a few other attorneys met with Porter Superior Court Judge Roger Bradford to continue planning a special hearing on the reliability of the oral tests provided by Great Lakes Lab in Valparaiso.

Officials with Great Lakes Lab and the adult probation department have stood firmly behind the reliability of the tests, saying the concern is based, in part, on a misunderstanding about drug testing.

Concerns about the tests have caught the attention of the county's six judges, who are considering coming together to host a hearing on the scientific reliability of the mouth swabs.

The Times also has an editorial today on the subject. Some quotes:
[T]he advantage of oral drug tests [is a] quick swab in the mouth, which doesn't have to be done in private, and the procedure is done.

So the Porter County probation department has begun conducting oral drug tests on its clients. And defense attorneys have found a loophole. Most versions of the rules for home detention don't allow for oral drug tests.

That loophole is in the process of being closed.

A lot is at stake in this struggle. The county's six judges are planning to take the unusual step of a joint hearing to address the concerns.

The normal rule for judges should be that when a person on home detention flunks a drug test, that person is automatically sent back to jail. But in Porter County, for now, that shouldn't happen while this controversy is being addressed.

Are the oral tests accurate? That needs to be determined as part of this process.

Porter County Adult Probation Chief Neil Hannon has said his department researched the use of mouth swabs for years before starting to use them.

That research, and more, needs to be presented to the judges so they can each reach their own conclusion.

The probation department should conduct oral tests using a mouth swab but also, until this is resolved, obtain another type of sample as well.

If the oral test comes back positive, then submit the urine, hair or other kind of sample for testing as well before taking action against the offender.

In the meantime, Porter Circuit Court Judge Mary Harper is right to stop automatically sending to jail offenders on home detention who test positive on the oral drug tests. Last Monday, she notified the county probation office to no longer send offenders from her court to jail if they test positive with an oral test for cocaine use while on home detention.

If the oral drug tests are proven reliable, and if the rules provided to offenders include the possibility of their use, then their use should become routine.

The ILB has had a number of entries on this issue - check here for the most recent, from March 8th.

Posted by Marcia Oddi on Monday, March 13, 2006
Posted to Indiana Courts

Ind. Courts - Camm and Behrman cases continue in the news

"Don’t rule out another Camm trial" was the headline to a long story this weekend in the New Albany News-Tribune. Some quotes:

NEW ALBANY — David Camm may be behind bars, sentenced to life in prison for killing his family, but he refuses to go quietly.

Instead, the former state trooper and his defense team are gearing up for their biggest challenge yet — convincing the Indiana Court of Appeals to grant them a third trial.

Camm, 41, has spent the past 5 1/2 years in prison for the murders of his wife, Kim, and children, Brad, 7, and Jill, 5. The family was gunned down as they returned to their rural Georgetown home one September evening in 2000.

Three days later, Camm’s former State Police colleagues arrested him, and in 2002 he was convicted of the murders.

But in November 2004, the Indiana Court of Appeals overturned the decision, saying Camm didn’t receive a fair trial because jurors had been prejudiced by evidence of his numerous extra-marital affairs.

That ruling prevented the affairs from being admitted in the second trial, which ended last week in a guilty verdict, and also warned prosecutors in the next trial to tread lightly when it came to accusing Camm of molesting his daughter.

So when Floyd County Prosecutor Keith Henderson told the jury in the recent trial that Camm killed his family because his wife discovered he had molested their daughter, he opened the door for a third trial, according to defense attorney Katharine “Kitty” Liell.

In the 2004 Court of Appeals decision, the judges said while they agreed the molestation could be proof of a motive, they questioned whether the state had enough evidence to back up the claim. Camm was never charged with molestation.

Yesterday the Indianapolis Star reported, in a story by Tom Spalding headlined "Behrman grand jury starts Monday," that:
In taking over the investigation, the six-member grand jury in Martinsville will continue a probe that already has consumed thousands of hours of police work and ended in many false leads. With broad truth-seeking powers, the panel will review evidence unseen by the public and issue subpoenas to question potential suspects.

The outcome is crucial: No indictment may mean a dead end in a case already filled with twists and turns. At a minimum, experts see an opportunity to bring closure.

"Why we have chosen the road we have chosen is for lots of strategic reasons," said Morgan County Prosecutor Steve Sonnega, who declined to elaborate. "Nothing does the job like a grand jury."
Experts say the grand jury can accomplish two main tasks: Compel reluctant witnesses to talk under threat of perjury and put a fresh sets of eyes on aging evidence.

"You take it to a grand jury normally because you believe you have information sufficient to get an indictment," said Henry Karlson, a law professor at Indiana University. "Grand juries are particularly useful when there's a lot of evidence to be sifted through. You can get a lot of reaction from citizens on a purely circumstantial case." * * *

In a case such as Behrman's, the publicity it has attracted presents problems for investigators. Lang, the State Police investigator, said detectives have obtained a handful of phony jailhouse confessions from people "who were not telling us the truth to feather their own nest."

Lang believed last year he was close to seeking charges against two unidentified men, citing circumstantial evidence. Investigators had questioned the men several times and taken DNA samples from them.

[Morgan County Prosecutor Steve Sonnega] and Lang would not confirm whether there is any new information about the men or whether they will be called to appear before the grand jury.

One piece of evidence the grand jury will hear is how Behrman died. Autopsy information, normally made public, has been sealed since a December 2003 order by Morgan Superior Court Judge G. Thomas Gray. Gray last week rejected an open-records request for that information filed by the Herald-Times in Bloomington. Gray said in the order that it is "reasonably necessary for the records to remain sealed until an arrest or arrests are made in the criminal case."

A side-bar explains how a grand jury works.

Posted by Marcia Oddi on Monday, March 13, 2006
Posted to Indiana Courts

Sunday, March 12, 2006

Law - "Same-sex parenting is a done deal."

"Why Courts Are Adopting Gay Parenting" is the headline to a column by Dahlia Lithwick in today's Washington Post. Some quotes:

A heads-up to those of you still fretting about the alleged evils of gay marriage: The parade has moved on. Try as you may to vote, or legislate your way out of a country that solemnizes such relationships, committed gay couples are already giving birth to, adopting and fostering children. Whether or not same-sex marriage becomes widely legal in America, same-sex parenting is a done deal.

Around the country, courts are increasingly recognizing that reality, with more generous notions of what "parenting" and "family" mean. Critics are launching the predictable counterattack: deriding gay parenting with the same claims they use to attack gay marriage and dismissing any judge who recognizes such relationships as an unprincipled liberal activist. But there's a crucial legal difference between claims that liberal judges are inventing a right to same-sex marriage and inventing a right to same-sex parents: Judges who do the latter are adhering to a bedrock principle of family law. * * *

If judges are increasingly inclined to recognize the validity of same-sex parenting arrangements, it's not because they are mangling a long-established tradition of family law. Courts that adopt broader visions of "parent" and "family" aren't reading radical new rights into their state constitutions. They are doing precisely what family courts are asked to do: Make a determination about what's in the "best interest of the child." That remains the polestar for judicial decision-making in both the adoption and custody contexts. As it turns out, children usually have more urgent concerns than what their parents do in bed.

The best-interest test reinforces the legal proposition that children are not their parents' chattel; the state has an obligation to privilege their needs, sometimes even over the needs of their own parents and other adults. The test is a not a fixed rule, precisely because judges must figure out what's best for kids on a fact-specific basis. And while judges can and should be able to make subjective decisions about whether two-parent adoptive homes are better than single-parent homes, they also need to be free to decide that it's preferable for little Joey to have a gay adoptive father than none, or to have two legal mommies rather than one.

Rules rooted in sweeping moral judgments don't generally work in family law for the same reason they don't work for families: Kids love and need the parents they have, not necessarily the parents we love.

Posted by Marcia Oddi on Sunday, March 12, 2006
Posted to General Law Related

Law - "Jury is still out on expert witnesses"

"Jury is still out on expert witnesses" is the headline to a long and comprehensive article today by Andrew Wolfson of the Louisville Courier Journal. Some quotes:

Expert witnesses have been the objects of derision since at least 1897, when a Harvard Law Review writer said there are "three kinds of liars: the common liar, the damned liar, and the scientific expert."

And for just as long, there have been questions about how to regulate the experts, who are hired by opposing sides in criminal and civil trials — and even proposals to replace them with experts appointed by the court.

Yet experts are now more ubiquitous then ever. One directory alone, expertpages.com, lists 3,700 in more than 400 categories, from amusement park rides to aerosol sprays, feng shui to fungus, memory recall to metaphysics.

In the recent trial of the former Indiana State trooper David Camm that ended with his convictions on three counts of murder, there were eight blood experts alone — one for each drop of blood found on Camm's T-shirt on the night in September 2002 that his wife and children were murdered.

Four of the experts testified for the prosecution that the blood droplets spattered onto Camm when a bullet was fired into his daughter's head. Four testified for the defense that the blood smeared on him when he went to his family's aid, after they already were dead.

Posted by Marcia Oddi on Sunday, March 12, 2006
Posted to General Law Related | Ind. Trial Ct. Decisions | Indiana Courts | Indiana Law

Law - This is public access week, nationwide. PART II

The Indianapolis Star has an interesting editorial today showing how "Access to public records lets us peek inside government's doors", here in the case of campaign contributions: "A trace of one businessman's campaign contributions shows why open records law is a vital tool in helping citizens hold their elected leaders accountable."

The Star today also has a detailed feature titled "Going after public files" that explains your rights to public records and open meetings. A side-bar oprovides a number of useful links.

Ironically, also on "Sunshine Week" the Chicago Tribune has a front-page story today, titled "Internet blows CIA cover: It's easy to track America's covert operatives. All you need to know is how to navigate the Internet." Some quotes:

When the Tribune searched a commercial online data service, the result was a virtual directory of more than 2,600 CIA employees, 50 internal agency telephone numbers and the locations of some two dozen secret CIA facilities around the United States.

Only recently has the CIA recognized that in the Internet age its traditional system of providing cover for clandestine employees working overseas is fraught with holes, a discovery that is said to have "horrified" CIA Director Porter Goss.

"Cover is a complex issue that is more complex in the Internet age," said the CIA's chief spokeswoman, Jennifer Dyck. "There are things that worked previously that no longer work. Director Goss is committed to modernizing the way the agency does cover in order to protect our officers who are doing dangerous work."

Dyck declined to detail the remedies "since we don't want the bad guys to know what we're fixing."

A number of other stories accompany the main story, including this one titled "Data mining easy as using credit card."

Posted by Marcia Oddi on Sunday, March 12, 2006
Posted to General Law Related | Indiana Government | Indiana Law

Law - Cincinnati eminent domain challenge makes news

"Woman vs. eminent domain: She may lose her home of 47 years" is the headline to this story in the Cincinnati Enquirer. The lengthy story begins:

Eighty-year-old Emma Dimasi has told friends and neighbors she wants to live the rest of her years on the corner of Clifton and Dixmyth avenues, in the small brick house she's owned since 1959.

The city has given her until Saturday to get out.

In a case that could have statewide implications, a Hamilton County magistrate will decide Monday whether the city of Cincinnati has the right to take Dimasi's house for a $4 million relocation of Dixmyth Avenue.

The taking of Dimasi's house is a routine and long-accepted use of eminent domain for a city like Cincinnati, which has filed 21 such court actions for road projects since 2003.

But Dimasi argues that private economic development - not public transportation - is driving the road project.

That's because Good Samaritan Hospital is contributing $1.28 million toward the project, which would give the hospital more room to grow as it continues a $122 million expansion. Under its agreement with the city, the hospital also stands to get whatever land is left over after road construction for $1.

The case is the first to test an Ohio law banning for one year the use of eminent domain for economic development if the property will ultimately end up in the hands of another private owner. And it's a prime example of what critics say is a legal system that stacks the deck against property owners.

State lawmakers are examining every aspect of that system in the aftermath of a U.S. Supreme Court case that held that states and cities have the power to take private property to give to another private owner. A case now before the Ohio Supreme Court will decide the issue of whether Norwood had the right to take residential property and give it to the developer of a shopping mall.

Here, from Jan. 12, 2006, is an ILB entry on the oral arguments in the pending Ohio Supreme Court case.

Posted by Marcia Oddi on Sunday, March 12, 2006
Posted to General Law Related

Ind. Courts - Lake Superior Court race, with charges of unethical public conduct, political cronyism, electioneering at issue

There is too much to even attempt to summarize in this story today by Bill Dolan and Marc Chase in the Munster (NW Indiana) Times, headlined: "Dealing justice? Villalpando, Cantrells wage war -- unethical public conduct, political cronyism, electioneering at issue."

For a list of earlier ILB entries, check here.

Posted by Marcia Oddi on Sunday, March 12, 2006
Posted to Indiana Courts

Law - Lawmakers favor move to give president a limited line-item veto

The Louisville Courier Journal reports today, in James R. Carroll's "Notes from Washington," that "Lawmakers favor move to give president a limited line-item veto." Some quotes:

President Bush's wish for a limited line-item veto is getting a generally positive reception from members of both parties in Congress, and that includes in the Kentucky and Indiana delegations. * * *

Sen. Richard Lugar, R-Ind., and Sen. Evan Bayh, D-Ind., also support the idea.

"Senator Bayh supports giving the president a line-item veto to use as a tool to eliminate pork barrel spending," said spokeswoman Meghan Keck. "Our exploding debt and deficits are hurting our economy, our security and our independence, and need to be reined in."

The Bush proposal is intended to help curb the use of earmarks, the special spending items targeted by lawmakers for specific districts and states. * * *

Rep. Ed Whitfield, R-1st District, said he backed the line-item veto in 1996, when Democrat Bill Clinton was president. That law was struck down by the Supreme Court in 1998, with Justice John Paul Stevens writing for the majority that "there is no provision in the Constitution that authorizes the president to enact, to amend or to repeal statutes."

Under the more limited proposal now being discussed, Congress would have 10 days to approve, by a majority vote, a set of presidential cuts, or rescissions, in spending and tax bills.

Under a normal presidential veto, it takes a two-thirds vote of Congress to override.

Interesting. Here are some quotes from a report from the Washington Post of June 26, 1988:
The Supreme Court yesterday struck down the broad new line-item veto authority that Congress had given the president to cancel specific items in spending and tax bills.

Within a couple of hours of the ruling, the law's backers announced they will try again to find a constitutional way to expand the president's powers to cut pork-barrel expenditures.

In a 6 to 3 decision, the court held that the line-item veto law violates a constitutional requirement that legislation be passed by both houses of Congress and presented in its entirety to the president for signature or veto.

Passage of the legislation in 1996 and its implementation in 1997 climaxed more than a century of struggle by presidents for this new authority. It was a rare unilateral yielding of power by Congress to the chief executive, prompted by Congress's increasing concern over its own lack of fiscal discipline. President Clinton, who had line-item veto powers as governor of Arkansas, signed the bill with relish and moved quickly, although cautiously, to begin trimming spending bills.

But the judicial branch, looking to constitutional rather than political or fiscal priorities, took a far dimmer view of the power swap.

Unlike earlier laws giving the president discretionary spending authority, "this act gives the president the unilateral power to change the text of duly enacted statutes," Justice John Paul Stevens wrote for the majority.

Such line-item vetoes are "the functional equivalent of partial repeals of acts of Congress," he said. But "there is no provision in the Constitution that authorizes the president to enact, to amend or to repeal statutes," he added.

Justice Anthony M. Kennedy cut to the political chase. "Failure of political will does not justify unconstitutional remedies," he said in a concurring opinion.

The decision comes as a blow both to Clinton, who used the new power 82 times over the past 18 months, and to GOP leaders, who made the line-item veto a marquee item in their 1994 "Contract With America." * * *

On Capitol Hill, Sen. Dan Coats (R-Ind.), who co-sponsored the law with Sen. John McCain (R-Ariz.), said the decision "means a retreat to the practice of loading up otherwise necessary legislation with pork-barrel spending."

By contrast, the law's foes were ecstatic. Sen. Robert C. Byrd (D-W.Va.) raised his arm in a salute and exclaimed, "God save this honorable court." Sen. Carl M. Levin (D-Mich.) said that Congress "tried to bend the Constitution [but] the court said it will not allow this to happen."

In his opinion, Stevens said Congress could alter the president's role in determining the final text of a law only by constitutional amendment. But Coats and other line-item veto supporters acknowledged that mustering the two-thirds majority in each house needed to move the constitutional amendment process forward would be difficult.

Instead, Coats and McCain said they will introduce legislation immediately to get around the Supreme Court's objections by breaking each appropriations bill into individual items, passing each one separately and sending them to the president to be signed or vetoed as separate bills.

The House balked at such a Senate proposal before settling on the current line-item veto law, gagging at the prospect of passing what could be thousands of separate appropriations bills instead of the 13 that must now be passed every year. Computers have since eased the procedural problems, Coats said, making the "separate enrollment" approach more feasible.

But many lawmakers' love affair with the line-item veto has cooled since Clinton began zeroing out some of their favorite projects and recent government projections of surpluses for the next several years. Many Republicans, who had put off implementing the law for months in hopes it would fall into the hands of a GOP president, are not keen about empowering Clinton or a possible Democratic successor. Moreover, there is little time left in this session for such a controversial issue.

Under the line-item veto law, the president could sign bills and then cancel spending for specific projects, narrowly targeted tax breaks, or new or expanded entitlement programs.

Congress could reinstate the spending but would have to muster a two-thirds vote of both houses to override a veto. Congress overrode only one of Clinton's line-item vetoes, involving 38 projects worth $287 million in a military construction bill; the vetoes that stood reversed $869 million in spending and tax breaks.

The Supreme Court decision was the case of Clinton v. City of New York.

Posted by Marcia Oddi on Sunday, March 12, 2006
Posted to General Law Related

Ind. Law - Status of wine shipping in Indiana, and nationally

Niki Kelly of the Fort Wayne Journal Gazette gives a rundown today on legislation still pending in the final two days of the session, this Monday and Tuesday. Here is what she writes about wie shipping:

A key House Republican is trying to revive language in the waning days that would let Indiana wineries continue to ship their product directly to in-state customers with some limits. It may be inserted into a House bill on pretrial court fees.

Earlier this session, the wineries and wine wholesalers agreed on a proposal to allow direct shipments that state alcohol officials recently halted as a violation of Indiana law.

But Senate President Pro Tem Robert Garton, R-Columbus, killed the bill when he found out several lawsuits are pending on the issue.

The wineries have a temporary injunction allowing direct shipping that runs out at the beginning of April.

Rep. Matt Whetstone, R-Brownsburg, has a plan that would let wineries ship up to 24 cases of wine to an individual in one year but no more than 3,000 cases to all customers. But only wineries that sell less than 600,000 gallons of wine would be eligible.

That angers some of the state’s mid- to-larger-size wineries that feel it would limit their ability to grow.

“We are still disappointed in the direction the legislation is moving,” said Larry Satek, of Satek Winery in Fremont, who is president of the Indiana Winegrowers Guild. “Consumers should know that if this legislation passes, their freedom of choice will be compromised.”

Unfortunately, there is nothing new yet that was not in the ILB entry from last Thursday, March 9th.

Nationally. The Washington Post has a story today headlined "Wineries Push to Avoid Middlemen: 3rd-Party Requirement Looms Unless Bills Pass." Some quotes:

For 20 years, Leesburg winemakers Lew and Amy Parker have driven their product to market in a Volvo sedan. The trunk holds 17 cases, and the drive to the local wine shop or restaurant takes about 10 minutes.

Such a simple system worked for many small wineries in the Washington area for decades. But last year a federal district court in Virginia and last month the Maryland comptroller said in-state wineries should not be allowed to distribute wine without going through middlemen. In both cases, the practice was deemed unconstitutional in response to lawsuits by out-of-state wineries that were denied the same privilege.

Wineries in both states have turned to the legislatures for help. In Maryland, House and Senate committees considered bills last week that would preserve in-state wineries' ability to sell to retailers by putting out-of-state wineries on equal footing. Without a legislative solution, the deadline to stop distributing wine is May 31. In Virginia, a similar bill died in committee a month ago, and loading up the family car is no longer a legal method of distribution.

In a landmark case about shipping wine directly to consumers, the U.S. Supreme Court ruled last year that distribution laws have to be consistent for in-state and out-of-state wineries. What was initially seen as a boon to small wineries has spelled trouble. Some states chose to eliminate shipping privileges entirely, which threatened the economic viability of some small wineries. Wholesale distribution privileges came under scrutiny, too.

"The wine industry is in a state of chaos," said Lew Parker, owner of Willowcroft Farm Vineyards and vice president of the Virginia Wineries Association. "The benefits of the Supreme Court decision are not being felt anywhere."

Posted by Marcia Oddi on Sunday, March 12, 2006
Posted to Indiana Law

Law - This is public access week, nationwide. PART I

Kicking off "National Sushine Week" is this editorial in the Fort Wayne Journal Gazette, headlined "Reopen Government." Some quotes:

Officials at all levels of government performing the people’s business hide far too much information from the public they are supposed to serve. With George W. Bush promoting an imperial presidency and state government aggressively privatizing formerly public government functions, access to information is only getting worse. * * *

President Bush has notoriously concealed records and misled the public about information he has revealed. In recent years, Indiana’s lawmakers have closed the door on some public employee disciplinary records and on the amount of money taxpayers dole out to retired public employees. Although Gov. Mitch Daniels’ administration has chosen the winning bidder for the Indiana Toll Road, it refused to disclose the competing bids.

Locally, a charter school hid behind its private operator to withhold records, and county commissioners agreed to force consultants to disclose the amount of money they earn related to government business only after public criticism – and then only for the future, not years past.

The Journal Gazette is running two other related stories today. A lengthy report by AP reporter Keith Robinson is headlined: "Access better in Indiana since ’01 - But nationwide analysis shows states tightening reins on public records." Some quotes from the story:
An Associated Press analysis of bills passed in the state legislature from 2002 to 2005 – four legislative sessions after the attacks – showed that 10 restricted access to public records and 15 loosened access, while nine were neutral or mixed. * * *

For agencies wanting to restrict information that should be open to the public, [Fred H. Cate, a law professor at Indiana University] said the newspapers’ report sent a message that “we’re not going to take that here.”

That message was sent again after legislators in April 2001 passed a bill to exempt themselves from the state’s Access to Public Records Act in a dispute over whether their correspondence with constituents should be confidential. Open-records advocates said the bill went too far in allowing the legislature to set its own rules for releasing public records.

Gov. Frank O’Bannon, who owned a newspaper and was an advocate of open government, vetoed the bill, setting the stage for an override vote in the next legislative session. News organizations and other open-government advocates heavily lobbied their legislators to thwart an override.

Their campaign helped to persuade legislators in March 2002 to sustain the veto, killing the bill.

Before the terrorist attacks, reasons to close public records typically involved concerns about privacy and identity theft. Since then, homeland security has entered the equation.

“There’s been a lot more concern and a lot more willingness for legislators to be swayed by arguments of identity theft, homeland security or personal privacy ... than what had occurred before 9/11,” said Steve Key, general counsel for the newspaper industry group Hoosier State Press Association. * * *

While legislators passed more bills to keep public records open than to close them – often at the urging of government watchdogs – what the numbers don’t show is the extent to which some bills restrict access. A 2003 law makes records of disciplinary action against public employees secret except for final action of suspension, demotion or discharge, and a 2001 law makes information about public-employee pension funds confidential.

Among bills that legislators have passed this year in a session scheduled to end Tuesday is a measure making e-mail address lists created by public agencies confidential. The bill is expected to be sent to Gov. Mitch Daniels for his consideration.

The bill is SEA 205. The short background to this bill is that it is the outgrowth of a legal victory in court by a Kokomo teenager attempting to access an email list maintained by the Mayor of Kokomo. From an Indianapolis Star editorial on 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.
In reaction, the Mayor pushed changes to the law in the General Assembly. For more information, see this ILB entry from Feb. 28th, and particularly the last part of the entry, pointing out that under the proposed revisions, "e-mail lists are to be treated differently than other public records - the public may not even look at them, whereas with other similar lists the public may at least, under the law, "inspect and make memoranda abstracts from the list." Further, the proposed revisions now on the Governor's desk would prohibit access to certain records to anyone with "a political purpose."

The second Fort Wayne Journal Gazette story today is headed "Records access applies to all: Being in prison no bar to getting documents." A few quotes from the story by Dan Stockman:

Among the information that has come to light in The Journal Gazette, thanks to the Access to Public Records Act, was that thousands of Indiana school bus drivers have moving violations and some even have drunken-driving convictions but are still allowed to transport children. The law has also been used by the newspaper to show how businesses doing city work contributed heavily in the last mayoral campaign, and that of 30 high-risk dams in the region, 20 need at least basic repairs. * * *

Many of the complaints prisoners file with Davis involve the fees agencies charge for copies of records, and Davis often finds the fees are illegal.

In June 2005, [PAC Karen] Davis said the $3 per police report the Fort Wayne Police Department was charging violates the Access to Public Records Act, which limits fees to the actual cost of copies. That fee is still being charged today, however.

Associate City Attorney Carol Taylor said the city is in the process of changing the fee, which must be approved by the City Council, but it is complicated because there are so many departments and so many reports they charge for, and each one has to accurately reflect the costs associated with producing it. “It’s something we’re working on,” Taylor said. * * *

In the end, filing a lawsuit is often the only recourse for anyone denied public records, whether the person is in prison or not. Davis’ office exists only to advise on the law, not enforce it. If she finds that access was denied illegally and a lawsuit is filed and won, the agency that denied the records has to pay the requester’s court costs and attorney fees, which could be thousands of dollars.

But Davis’ lack of enforcement power means agencies, even those who illegally deny inmates records they’re entitled to, can get away with denying records even after Davis finds their actions in the wrong unless someone takes them to court.

Former inmate Foust, however, said that’s because inmates don’t realize they can file suit – and don’t even have to pay the filing fee. He said he often took that course of action from behind bars. He said that once he filed suit, the agencies would usually settle out of court and he would get the records he had asked for.

Posted by Marcia Oddi on Sunday, March 12, 2006
Posted to General Law Related | Indiana Government | Indiana Law

Saturday, March 11, 2006

Environment - Weakening the Toxics Release Inventory program

Yesterday's NY Times had an op-ed piece headed "A Dark Cloud Over Disclosure." Some quotes:

President Bush and the Environmental Protection Agency want to weaken the largely successful Toxics Release Inventory program, which requires companies to tell the public how they dispose of or release nearly 650 chemicals that may harm human health and the environment. The disclosure program makes data available for anyone — journalists, policymakers, investors or parents — to learn exactly which chemicals are being released from corporate smokestacks and discharge pipes.

Congress developed this critical program in 1986, in response to the catastrophic deaths of thousands of people after a spill of toxic chemicals at a Union Carbide plant in Bhopal, India. It has worked well since its inception, but the Environmental Protection Agency is now proposing three detrimental changes that could go into effect within the next year.

The first would relax the current annual reporting requirement and let companies make reports every other year instead; the second would allow polluters to release 10 times more toxic chemicals — up to 5,000 pounds annually — without disclosing the volume released or where the pollutants went; and the third would permit companies to conceal releases of up to 500 pounds annually of particularly dangerous toxic materials, like PCB's, lead and mercury, which can accumulate in people's bodies. All three changes effectively increase the amount of pollution that companies can emit without telling anyone.

Posted by Marcia Oddi on Saturday, March 11, 2006
Posted to Environment

Ind. Courts - The race for LaPorte County Circuit Judge

The Michigan City News-Dispatch has two stories today abut the race for LaPorte Circuit Court Judge.

"Rutkowski seeking judgeship" is the headline to this story. Some quotes:

Michigan City Attorney Thomas J. Rutkowski announced he will seek the Republican nomination for LaPorte Circuit Court Judge in the May 2, primary.

A career executive with a steelmaker, Rutkowski began privately practicing law in 1992, while also serving as a principal in an employee staffing company for the past 14 years.

“My experience is somewhat unique in that it encompasses administrative skills, legal skills and business skills,” he said. “The LaPorte Circuit Court Judge is administratively responsible for over 80 employees and a budget of about $4 million.”

"Forker seeking judgeship" is the headline to this story. Some quotes:
LaPorte attorney Jonathan Forker announced Friday plans to run in the May 2 Republican primary for the nomination of LaPorte County Circuit Court judge.

“I have been a trial lawyer my entire legal career, and over the years I have handled a number of appeals to the Indiana Court of Appeals and Indiana Supreme Court,” Forker said. “I have tried cases in all of LaPorte County's courts, and my experience includes trials before juries and the individual judges.”

Forker, 53, has been in private practice for more than 25 years as a criminal and civil lawyer.

Forker said much of his experience has been in LaPorte Circuit Court, including 13 years as a public defender handling major felony cases under current and former judges.

He said he's also served as Judge Pro-Tem and special judge and has been a judge in LaPorte's teen court for 15 years.

Posted by Marcia Oddi on Saturday, March 11, 2006
Posted to Indiana Courts

Ind. Law - Identity theft bill sent to Governor - some thoughts

The General Assembly has now passed and sent to the Governor HEA 1101. This bill is aimed at identify theft. Among other things, according to a legislative press release:

The bill would require disclosure of security breaches and encryption of data by companies holding customers’ and clients’ personal identification information in computer databases if it could cause identity theft, identity deception, or fraud. This would help protect consumers by making them aware when their personal information may have been stolen. People would then be able to take the necessary steps to protect themselves from any further damage.
We all recall numerous stories a few months ago of security breaches involving consumer data held by large companies and institutions. Just yesterday the ILB came across a timely article by Anita Ramasastry, Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology, titled "Data Insecurity: What Remedy Should Consumers Have When Companies Do Not Keep Their Data Safe?" Access it here. The article begins:
On December 31, 2005, an employee of Providence Healthcare Systems stored backup computer tapes overnight in his van, which was parked at home in his driveway. The tapes were stolen - and so were data for 365,000 patients in Oregon and Washington.

The data included patients' Social Security numbers, birth dates, addresses, and medical information. Yet the affected patients were not notified of the security breach until January 25, 2006 -- almost a month later. * * *

Unsurprisingly, this February, a class action lawsuit ensued. I will argue that the suit asks for reasonable remedies - but also that legislatures may need to step in to create clearer statutory duties and remedies for security breaches to ensure suits like this will succeed. * * *

The class action complaint seeks injunctive relief - that is, a court order forcing Providence to act. In particular, it asks that the court order Providence "to pay for enhanced credit report monitoring for all class members, pay for the fraud alerts, pay for reporting to the Social Security Administration, and pay for any credit repair process that is required if people are damaged." As amended, it also now seeks monetary damages.

It is eminently reasonable for the patients whose data was stolen to request these remedies. Those patients who are not yet identity theft victims will need to constantly check or monitor their credit history - and monitoring is not free: It takes time and, after the first credit report, it takes money.

For patients who are already identity-theft victims, even more time and money will have to be expended. In addition, identity theft can result in their temporary loss of access to credit until the issue is cleared up.

Professor Ramasastry concludes her article with a section headed "What Security Breach Statutes Should Look Like":
Because of these potential gaps in the common law, states (and/or the federal government) should pass statutes to protect consumers in the event of a security breach. These statutes should have three key features:

First, they should require companies to immediately notify consumers when breaches occur, so they can protect themselves and their credit. Oregon law didn't require this, and this may be one reason that Providence waited.

Second, they should require credit issuers to offer free security "freezes," by which consumers may prohibit lenders or retailers from granting credit to anyone claiming to be them, as long as their file is "frozen."

Third, they should require companies whose negligence results in a breach to offer consumers credit-monitoring services and if necessary, credit-repair services.

Without such statutes, consumers run the risk that even if they sue, they will not receive the reasonable redress they deserve for the time and money they lose due to negligence - in this case, negligence in securing the safety of the one of the most personal, private kinds of information there is: medical information. [emphasis added]

HEA 1101 adds a new Article to the Indiana Code, IC 24-4.9, Disclosure of Security Breach. You can find this new Article at pages 6-10 of the Enrolled Act.

HB 1101 does not require that Indiana residents be notified immediately if a security breach occurs. Notification would be covered by the new IC 24-4.9-3, Disclosure and Notification Requirements, beginning on p. 7 of the Enrolled Act. Rather, the language contains qualifers such as "without unreasonable delay" and "as soon as possible after." There is not even a "but in no event not later than ...".

How are people to be notified? That is pretty much left up to the data base owner (see top of p. 9) and may be via mail, phone, fax, or e-mail. Of course, telephone leaves no record, and e-mail is likely to be mistaken for spam or phishing by a wary recipient.

The section goes on to provide that if this has been a really big disclosure of private information -- such as one of over 500,000 Indiana residents -- the requirements for notification are eased and may be met by posting on the company's web site or via a press release.

The Enrolled Act goes on to exempt from its disclosure requirements entities already covered by laws such as the Fair Credit Reporting Act, HIPAA, etc., if they contain similar requirements.

Chapter 4 (see p. 10 of the Enrolled Act) deals with enforcement. A person who fails to comply with the requirements of the act "commits a deceptive act that is actionable only by the attorney general under this chapter." This language may preclude private suits.

Under the proposed IC 24-4.9-4-1(b), "A failure to make a required disclosure or notification in connection with a related series of breaches of the security of a system constitutes one deceptive act." In other words, a security breach resulting in the disclosure of information on a million consumers is ok under this bill as long as there is notification. Failure to notify would constitute one deceptive act, for which attorney general could seek a civil penalty of up to $150,000. This penalty would apparently go to the state general fund, not to those affected by the security breach.

Further, the new law specifically preempts local units of government from passing ordinances "dealing with the same subject matter as this article."

Finally, and most importantly, HEA 1101's new IC 24-4.9 offers no remedies to those consumers whose security has been breached, other than requiring that they be notified of the breach. What of the remedies that would pause or help repair the damage the breach has caused -- the remedies of security freezes, credit monitoring and credit repair set forth in Professor Ramasastry's article?

Short of that, the biggest question here is: Is the new IC 24-4.9 now to be the exclusive remedy available to Indiana residents for these security breaches resulting in disclosure of their information? Or can consumers whose records have been released bring suit for negligence and ask for damages, costs, security freezes, and credit monitoring or credit repair? Will the companies whose negligence resulted in the disclosure be able to claim compliance with the minimal notification requirements of the new law as a defense?

Posted by Marcia Oddi on Saturday, March 11, 2006
Posted to Indiana Law

Ind. Courts - Judge V. Sue Shields to retire

"Judge Shields to retire: Career full of firsts enters final year" is the headline to a story by Ron Browning in the March 8-21, 2006 issue of Indiana Lawyer (paid subscription required). A few quotes from the lengthy story:

Bringing a trailblazing career to the end of the road is not easy. At 67, U.S. Magistrate Judge V. Sue Shields said she realized the time to retire had come. The difficult part was taking the steps to make it happen. * * *

What she’s been is merely one of the most influential members of the legal profession in Indiana for more than four decades. As the first female general jurisdiction state trial court judge in Indiana, the first woman to sit on the Indiana Court of Appeals, and the first woman U.S. Magistrate Judge in the state, she has been a pioneer for women in the legal profession.

But more than that, she has served as a shining beacon to the entire legal community regardless of gender. “She’s the best judge the state of Indiana has had that I can recall,” said Indiana Court of Appeals Judge Patrick D. Sullivan. * * *

She was the only woman in her class when she graduated from Indiana University School of Law – Bloomington in 1961. Each new “first” she achieved in her career was done with the knowledge her performance could either make it easier or harder for other women, she said. “I realized there would be an inordinate amount of attention,” Judge Shields said. “I did not want to mess it up for someone else.” * * *

Perhaps the greatest testament to Judge Shields’ ability is that attorneys long ago stopped thinking of her as a “female judge,” Judge Sara Evans Barker said.
Indeed, Judge Shields’ impact on the legal community stretches far beyond that of pioneer.

“She’s a standard for civility and professionalism in the legal profession, and she’s set the bar high for men and women,” said District Court Clerk Laura A. Briggs. * * *

Chief Judge McKinney said it is tough to imagine the Southern District without Judge Shields on the bench. “Sad hardly covers it,” he said. “It’s something nobody wants to talk about.” Judge McKinney said he first practiced before Judge Shields in 1972 or 1973. Everybody knew who she was,” he said.

The level of respect attorneys in Indiana hold for Judge Shields is unparalleled, Judge McKinney said. She carries the same level of respect and admiration amongst her peers on the bench, he said. “She’s been the time-management role model for trial court judges,” Judge McKinney said. “The woman can accomplish more in a day than most of us can in a week and a half.”

Attorneys and judges can learn much from Judge Shields, he said. “She brings a unique combination of brains, patience, and an understanding of the human predicament to the bench,” Judge McKinney said.

Posted by Marcia Oddi on Saturday, March 11, 2006
Posted to Indiana Courts

Friday, March 10, 2006

Courts - California federal trial judge appointed to state appellate seat

"Federal Judge Is Moving to State Appellate Court" is the headline to this story today in the LA Times. Some quotes:

In a highly unusual career move, Nora M. Manella, a well-respected federal trial judge, was appointed Thursday to the state Court of Appeal in Los Angeles, giving up lifetime tenure.

Gov. Arnold Schwarzenegger's appointment of Manella, a Studio City Democrat, comes just two weeks after the state GOP called on the Republican governor to name more members of his own political party to the bench.

Manella, whose father was a founder of the Los Angeles law firm of Irell & Manella, said she applied for a seat on the state appellate bench because she's "always been somewhat of an appellate wonk."

"What I like most about judging is deciding difficult issues."

She will miss the interaction with lawyers at the trial level, she said, but looks forward to "the intellectual heavy lifting of the appellate court."

Manella's nomination must be confirmed by the state Commission on Judicial Appointments. An April 10 hearing has been set in Los Angeles. If approved, she will succeed Justice Gary Hastings, who retired. * * *

Few federal judges switch to the state courts unless it's for a coveted seat on the state Supreme Court. Lifetime tenure is considered a major benefit of the federal bench, but in recent years more federal judges are retiring earlier because of overwhelming criminal caseloads and little discretion, especially in sentencing.

In her new job, Manella will face election every 12 years. She also will receive a pay raise from $165,200 to $170,694.

Posted by Marcia Oddi on Friday, March 10, 2006
Posted to Courts in general

Ind. Courts - 2nd Set of Amendments issued for Court's CMS Public Notice of Contracting Opportunity (PNCO)

Updating yesterday's entry titled "Q&A issued for Court's CMS Public Notice of Contracting Opportunity (PNCO)," today the Indiana Supreme Court's Judicial Technology and Automation Committee (JTAC) has issued its 2nd set of amendments to the Court's CMS Public Notice of Contracting Opportunity (PNCO). Among other things, these amendments replace Sections L and M in the 121-page document, relating to Pricing and Functional Requirements. The document link is available here.

Somehow, this begins to remind one of either the show "Survivor," or a really complicated tax form. A sample:

IMPORTANT. In responding to Sections L and M, please use the amended document issued March 10, 2006. In the event a vendor submits a response using the original PNCO Sections L and M issued February 13, 2006, instead of using the amended document, the Division will notify the vendor to resubmit only Sections L and M, using the amended document. The vendor will have 48 hours from receipt of Division notice to resubmit responses using the amended document.

Posted by Marcia Oddi on Friday, March 10, 2006
Posted to Indiana Courts

Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending March 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 March 10, 2006.

There are 32 Court of Appeals cases listed this week.

Posted by Marcia Oddi on Friday, March 10, 2006
Posted to NFP Lists

Ind. Decisions - Transfer list for week ending March 10, 2006

Here is the Indiana Supreme Court's transfer list for the week ending March 10, 2006.

One case was granted transfer this week, an interesting question of personal jurisdiction: Linkamerica Corp. v. Cox (Ind.CtApp. 5/26/05)

The Court denied transfer* in Villegas et al v. Joel Silverman (Ind.CtApp 8/12/05), the case that declared:

We conclude that the plaintiffs have standing to challenge the new [BMV] identification requirements. In addition, we conclude that the identification requirements constitute an administrative rule, which was not promulgated pursuant to the Indiana Administrative Rules and Procedures Act (“ARPA”), Indiana Code § 4-22-2 et seq. Because the requirements were not promulgated in accordance with the ARPA, they are void and without effect. We therefore reverse the trial court.
_______
*Correction: My error. The Court did not deny transfer; it dismissed the transfer petition as moot, presumably because the BMV has now properly promulgated the ID rules.

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, March 10, 2006
Posted to Indiana Transfer Lists

Ind. Law - The tipsy-turvy wine debate

"The tipsy-turvy wine debate: Government regulation packs a hangover for columnist" is the title to a very good column today, by Debbie Harbeson, in the New Albany Tribune:

Operating government regulated businesses sure can be tricky. Here’s the process for a common winery business transaction: Visitors stop by, have an enjoyable time tasting the company’s offerings and purchase several bottles to take home. A few months later, the customer orders more wine and the business ships the bottles directly to the customer. Everyone is happy, the customer gets her wine and the winery gets the sale. This has been going on for 30 years in Indiana. End of story, right? Not when the business is government regulated. Grab a bottle of your favorite wine and read on.

The trouble started fermenting when a recent Supreme Court ruling created some confusion in Indiana. The ruling said if in-state wineries can ship directly to customers, then the state has to allow out-of-state wineries to do the same.

So fine, you say as you sip your Rose. Let the out-of-state wineries ship directly to customers. Indiana’s wineries can handle the competition, plus it would be nice to have a few more choices. Open up the market and let business and customers freely trade with one another. I totally agree this would make the most sense, but remember it’s government regulated. There are taxes to collect and special interests to serve.

I suggest you swallow that sip before you read what happened next.

Someone asked the guy in charge of the Indiana Alcohol and Tobacco Commission what Indiana government is going to do about the Supreme Court ruling and he said it doesn’t affect Indiana. He said Indiana doesn’t allow in-state wineries to ship directly to customers so they will just continue to deny that choice to customers who want to purchase out-of-state wine as well. No, you haven’t had too much to drink. Yes, I did say the government official, whose job it is to know such things, did not know wine was being shipped in-state to customers for the past 30 years.

When someone pointed this out to him, he then proclaimed it to be illegal. This means one day a winery owner is happily shipping orders to his customers and the next day, he’s at risk of committing a crime.

The controversy continues because, as usual, the law isn’t clear on the issue. So now the two sides are fighting over whether it’s legal or not. Essentially the government is saying an action can’t occur unless the law specifically states it can.

Does this mean we are headed down a road where we have to have a law specifically stating every single thing a person or company may do? And if no law exists, the government can immediately declare the action illegal? Think of how many oak barrels it would take to hold the paper we would need for such laws. It would cause more confusion than figuring out the proper wine to serve with fish.

Once again, we see how complications arise when using government force to control more and more. Why can’t we just let businesses ship the product to people who want it? The recent ruling said there was little evidence that purchases by minors is a problem. It also seems less safe for all of us to make people drive a car to get alcohol when they could simply have it delivered.

Drat, your wine is almost gone. Now I can’t tell you the story of the legislature’s involvement in this mess because that will take at least another bottle and who knows when you will be able to get more delivered. Drink what you have left slowly so you can make it through the remainder of the short session. Cheers.

Posted by Marcia Oddi on Friday, March 10, 2006
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues five today

In State of Indiana v. Christopher Huber, a 6-page opinion, Judge Najam writes:

The State appeals from the trial court’s grant of Christopher Huber’s motion for discharge under Criminal Rule 4(C). The State presents a single dispositive issue for our review, namely, whether the trial court erred when it found that the State had not brought Huber to trial within the time allotted under Criminal Rule 4(C). We affirm. * * *

Again, the State concedes that it was properly charged with 296 days in the delay of Huber’s trial. In addition, we hold that the trial court did not err when it charged the State with the seventy days between February 24 and May 5, 2003, which brought the total number of days chargeable to the State to 366, or more than one year.3 We affirm the trial court’s grant of Huber’s motion to discharge under Criminal Rule 4(C).

In Franklin D. Turner v. State of Indiana, a 17-page opinion (including a dissent beginning on p. 15), Judge Najam writes:
Franklin Turner pleaded guilty to Dealing in Cocaine, as a Class A felony. He presents a single issue for our review, namely, whether the trial court should have granted his motion to withdraw his guilty plea because it was necessary to correct a manifest injustice. We hold that because Turner’s case was not yet final, and he has a credible defense under the new constitutional rule announced in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), his motion should have been granted. * * *

Turner contends that the trial court should have granted his motion to withdraw his guilty plea. In particular, he maintains that when he filed his motion the trial court had not accepted his plea, nor had it entered judgment of conviction. Likewise, he alleges that withdrawal of his plea is necessary to correct a manifest injustice because a new constitutional rule provides a credible defense against the admissibility of evidence in the State’s case against him. * * *

Therefore, pursuant to our supreme court’s recent opinion in Litchfield, we reverse and remand for a full hearing on the merits of Turner’s motion to suppress. On remand, the question presented is whether the affidavit in support of the search warrant demonstrated that before the officers searched Turner’s trash, they had an “articulable individualized suspicion” that Turner was or had engaged in illegal activity. We caution that the court may consider only the evidence presented when the warrant was issued and may not rely on post hac justifications for the affidavit.

BAILEY, J., concurs.
BAKER, J., dissents with separate opinion.

I respectfully dissent from the majority’s conclusion that Turner should have been permitted to withdraw his guilty plea in these circumstances. In essence, I cannot agree that allowing Turner to withdraw the plea was “necessary to correct a manifest injustice.” * * *

When considering the posture of this case and the circumstances presented here, I believe that the rule announced in Litchfield should have prospective application only. Thus, I cannot agree with the majority’s decision to permit Turner to withdraw his plea, as there is no “manifest injustice” to correct.

In Maurice Dew v. State of Indiana, a 22-page opinion, Judge Crone writes:
The dispositive issue is whether the failure of Dew’s attorney to inform him about a plea offer from the State constitutes ineffective assistance of counsel. * * *

Dew’s testimony highlights the consequences of counsel’s failure to inform him about the State’s second plea offer. At least five members of the first jury did not believe Dew’s claim that his encounter with T.C. was consensual. The State interviewed the jury and subpoenaed additional witnesses to rebut Dew’s claim. Dew had explored the possibility of pleading guilty during the first trial, and there is no indication that he was adamantly opposed to further plea negotiations. As such, we conclude that there is a reasonable probability that, but for his counsel’s actions, Dew would have accepted the State’s plea offer. The post-conviction court’s conclusion that Dew received effective assistance of counsel is clearly erroneous. We therefore reverse Dew’s convictions and remand for further proceedings. If the State decides not to renew its plea offer, or if the trial court decides not to accept a guilty plea, then Dew shall be granted a new trial. Reversed and remanded.

In Indiana-American Water Company, Inc. v. Indiana Office of Utility Consumer Counselor, a 28-page opinion, Judge Crone writes:
Indiana-American Water Company, Inc. (“IAWC”), appeals the order of the Indiana Utility Regulatory Commission (“the Commission”) on its petition to increase rates and charges for water and sewer service. We affirm.
In City of Gary v. Walter Mitchell, a 12-page opinion, Judge Crone writes:
The City of Gary and Gary Police Chief Garnett Watson (collectively, “the City”) appeal the trial court’s granting of a preliminary injunction preventing their enforcement of the City’s mandatory retirement policy against Walter Mitchell, Louis Perunko, and David Mosby (collectively, “Appellees”). We reverse.

Posted by Marcia Oddi on Friday, March 10, 2006
Posted to Ind. App.Ct. Decisions

Law - Still more on: Federal agencies try to limit suits in state courts

Today the NY Times weighs in again on the move by federal regulatory agencies to limit, by regulation, the states' right to hear liability cases. The story is titled "'Silent Tort Reform' Is Overriding States' Powers." Some quotes:

SUPPORTERS and detractors call it the "silent tort reform" movement, and it has quietly and quickly been gaining ground.

Across Washington, federal agencies that supervise everything from auto safety to medicine labeling have waged a powerful counterattack against active state prosecutors and trial lawyers. In the last three decades, the state courts and legislatures have been vital avenues for critics of Washington deregulation. Federal policy makers, having caught onto the game, are now striking back.

Using a variety of largely unheralded regulations, officials appointed by President Bush have moved in recent months to neuter the states. At the urging of industry groups, the federal agencies have inserted clauses in new rules that block trial lawyers and state attorneys general from applying both higher standards in state laws and those in state court precedents.

The efforts by the federal regulators may wind up doing more than Congress to change state tort laws.

Last month, for instance, the bedding industry persuaded the Consumer Product Safety Commission to adopt a rule over the objections of safety groups that would limit the ability of consumers to win damages under state laws for mattresses that catch fire. The move was the first instance in the agency's 33-year history of the commission's voting to limit the ability of consumers to bring cases in state courts.

For background, see this ILB entry from Feb. 19th and its links to earlier entries.

Posted by Marcia Oddi on Friday, March 10, 2006
Posted to Administrative Law | General Law Related

Ind. Courts - Former Tippecanoe County court bailiff pleads guilty to theft

Joe Gerrety of the Lafayette Journal & Courier reports today:

A former Tippecanoe County court employee who was paid for more than 1,000 hours of overtime in 2003 has agreed to plead guilty to theft and pay the county $7,642 in restitution.

If the plea agreement is approved by Judge Don Daniel of Tippecanoe Circuit Court, Kelly M. Davis would serve 11/2 years on probation and would not go to jail. If she were to successfully complete probation, her conviction would be entered as a misdemeanor.

Under the plea agreement, additional charges of theft, corrupt business influence and ghost employment would be dismissed.

Those are the terms of a plea agreement signed recently by Davis and special prosecutor Todd J. Meyer. The deal won't be official until after a change of plea hearing, which has yet to be scheduled.

Meyer, the elected prosecutor in Boone County, was appointed to handle the case after Tippecanoe County prosecutor Jerry Bean cited a conflict of interest. * * *

Davis, 30, of rural West Lafayette, claimed 1,018 hours of overtime in 2003 as the full-time bailiff in Tippecanoe Superior Court 1. The overtime totaled more than $20,000 and augmented Davis' regular salary of $27,000 by 75 percent, according to a Journal and Courier review of payroll records at the time.

Superior Court 1 spent $56,533 on overtime and part-time help in 2003, compared with just $23,514 in Superior Court 2, which had a similar mix of cases and a smaller staff. Davis' counterpart in Superior Court 2 worked only 117.5 overtime hours in 2003 -- 12 percent of the overtime hours that Davis reported.

The overtime claims at the time put Judge Don Johnson at odds with members of the Tippecanoe County Council, who denied one of the judge's overtime claims late that year. That prompted a mandate from Johnson, who ordered the council to pay the claim.

Council members eventually approved the overtime claims, but sent Johnson a lengthy letter complaining about the court's reliance on overtime and part-time hours and urging the judge to give his personal attention to payroll claims. Davis resigned three weeks after the public controversy.

For background, see this ILB entry from Oct. 12, 2005.

Posted by Marcia Oddi on Friday, March 10, 2006
Posted to Indiana Courts

Ind. Courts - Terre Haute could get to keep U.S. District Court office

"Terre Haute could get to keep U.S. District Court office" is the headline to this story today by Sue Loughlin in the Terre Haute Tribune-Star. Some quotes:

Terre Haute may yet keep a U.S. District Court office in Terre Haute, if the rental price is right.

Once again, the General Services Administration is looking for office space to house federal courts and offices currently located in the federal building at Seventh and Cherry Streets.

GSA wants to lease about 12,500 to 15,440 square feet of space that would house the U.S. District Court, U.S. Bankruptcy Court, Probation Office, U.S. Marshal Service and U.S. Attorney.

While the goal is to stay downtown, “We’re looking at the entire city limits” of Terre Haute, said Jutta Mobley, of Jones Lang LaSalle Americas Inc., a commercial real estate firm working with GSA.

GSA is considering both existing building space and new construction, and the anticipated lease term is for five years. The goal is for the federal courts and offices to be in the new facility by Oct. 31, 2008.

Indiana State University hopes to take possession of the federal building by 2008 to house the College of Business. The federal building is now owned by the U.S. Postal Service.

While there has been some discussion that the U.S. District Court might move to Indianapolis for budget reasons, the goal is to keep it in Terre Haute, said Laura Briggs, clerk of the U.S. District Court for the Southern District of Indiana. * * *

It’s too early to tell if the U.S. District Court will remain in Terre Haute. “We’ll know more in the next two to three months as the next solicitation for offers by GSA wraps up” and potential sites and lease costs become more clear, she said.

Posted by Marcia Oddi on Friday, March 10, 2006
Posted to Indiana Courts

Ind. Law - More on sealing of Jill Behrman's death report

Updating this ILB entry from March 2nd is an AP report today published in the Fort Wayne Journal Gazette and headlined "Judge withholds autopsy on IU coed." Some quotes:

MARTINSVILLE – A judge has denied a newspaper’s request to release autopsy and forensic reports in the death of an Indiana University student whose body was found in 2003, nearly three years after she disappeared while riding her bicycle in Bloomington.

The records remaining sealed under court order include details on how 19-year-old Jill Behrman died, which investigators want to keep secret as they search for whoever killed her. * * *

Morgan Superior Court Judge G. Thomas Gray on Tuesday denied a request from the Herald-Times of Bloomington to make public the documents he ordered sealed in December 2003.

“The court has determined that a release of the information in this file will hinder the ongoing investigation into Miss Behrman’s death,” Gray wrote in his response.

Public access attorneys, however, argue that state law requires that after any death investigation a county coroner must make public details on the probable cause, manner and mechanism of death.

“When an autopsy is done, these three items should be made available to the public,” said Steve Key, general counsel for the Hoosier State Press Association. “I would argue the General Assembly is very specific about its intent.”

Morgan County Prosecutor Steve Sonnega last week announced plans for the grand jury investigation, which could take months to complete.

Meanwhile, Indiana Daily Insight assures us today that Greta Van Susteren is on the job, albeit concerned:
Fox News Channel's Greta Van Susteren has spent the past two days in Indiana (and her show originated from Indiana Wednesday night) because she is working on a special involving the murder of Bloomington's Jill Behrman. Van Susteren blogs: "I am not sure when it will air — probably mid-April. The topic is a cold case and is being done not by our On the Record staff but the FOX documentary unit. The more I work on the special, the more perplexed I am about the case. I am hoping when we finish all our work I will have a greater confidence that the case will be solved. Right now, I have serious doubts whether there will be justice. The case is very strange..."

Posted by Marcia Oddi on Friday, March 10, 2006
Posted to Ind. Trial Ct. Decisions | Indiana Law

Courts - More on: Kentucky Judge Resigns Amid Accusations He Profited From Fen-Phen Case

It was not only the judge, but the attorneys, according to this story by Andrew Wolfson today in the Louisville Courier Journal headlined "Fen-phen lawyers breached duty." Some quotes:

The three lawyers who represented plaintiffs in Kentucky's fen-phen settlement passed "out money to themselves and others like it was theirs to do with as they wished," a special judge said this week.

Judge William Wehr of Campbell County ruled that attorneys Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. breached their duty to their 431 clients when they paid themselves and others more than half of the $200 million settlement and put $20 million more into a charitable trust, the Fund for Healthy Living.

Wehr ordered the lawyers to surrender the trust's $20 million and place it in escrow so it can be distributed to their former clients if they win a pending suit against the attorneys.

The judge noted that the lawyers and other directors of the fund paid themselves more in fees during its first two years than they paid out in grants. * * *

Wehr's findings mirror those in a public reprimand issued last month to the presiding judge in the fen-phen litigation, Senior Judge Joseph F. Bamberger, who resigned rather than face removal from office for approving huge fees for the attorneys and a close friend, trial consultant Mark Modlin.

Bamberger approved transfer of the $20 million to the fund, then became one of its paid directors, along with Modlin. The Judicial Conduct Commission said in its reprimand that Bamberger's actions "shocked the conscience."

In an order issued Wednesday, Wehr said Cunningham, Gallion and Mills signed contracts with clients limiting their recovery to 33 1/3 percent -- and that they agreed to make no settlements without their clients' consent. But they eventually paid themselves more than 50 percent of the total settlement and falsely told Bamberger it was with their clients' approval, Wehr said.

He said the attorneys' defense -- that their pay was approved by "a now reprimanded judge" -- falls short because the lawyers never told Bamberger about the contingency contracts, nor the amount of money being transferred to the Fund for Healthy Living.

Earlier ILB entries are available from 3/5/06 , 3/1/06, and 2/28/06.

Posted by Marcia Oddi on Friday, March 10, 2006
Posted to Courts in general

Ind. Law - Legal battle against Floyd County subdivision is settled

"Legal battle against Floyd subdivision is settled: Use of eminent domain threatened over sewer line" is the headline to this story by Ben Zion Hershbery in today's Louisville Courier Journal. The lengthy report begins:

A three-year battle by Greenville-area residents to prevent a 206-lot subdivision in their rural neighborhood came to an end yesterday with the settlement of a lawsuit.

The settlement was announced at a hearing before a special judge in Floyd Circuit Court.

Developers Don and Steve Thieneman said they now have clear sailing to sell the first houses in their Heritage Springs subdivision, between U.S. 150 and Arthur Coffman Road, this summer.

For background see this Sept. 11, 2005 ILB entry which includes this quote from the Louisville Courier Journal: "A legal battle under way in Floyd County could set new limits on the way privately owned companies use eminent domain to take land from property owners."

In addition, this suit lead to an effort to amend the eminent domain proposal (HB 1010) pending in this year's General Assembly, as recorded in this Feb. 28th ILB entry. A quote from the Louisville Courier Journal story: "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."

Posted by Marcia Oddi on Friday, March 10, 2006
Posted to Indiana Law

Thursday, March 09, 2006

Ind. Courts - Still more on: Failure to submit paperwork to Indiana Public Defender Commission costly to many counties, including Marion

Updating this ILB entry from Tuesday on Wells County's looking to pursue funding from the Public Defender Council is this story today in the Columbia City Post & Mail, by TJ Hemlinger, headlined "Judge takes blame for missing grant." Some quotes:

Whitley County missed out on getting reimbursed by the state for its fees for public defenders because it missed the application deadline when it wasn't notified by the state that the funds were available.

Whitley County received $41,000 toward its public defenders salaries in the first year the program was in effect, but that figure fell to $26,000 the second year as more counties participated. It had dropped to $9,000 during part of the third year. * * *

Whitley County did not make a request for the funds in the most recent disbursement.

Circuit Court Judge James Heuer said the county would apply for reconsideration for 2005 funds and took responsibility for the missed application.

Requests go to the Indiana Public Defender Commission, which reimburses up to 40 percent of public defender expenses incurred by eligible counties per quarter.

If the requests exceed the funding provided by the state legislature, the commission prorates the requests, giving each participating county the same percentage of its request.

Posted by Marcia Oddi on Thursday, March 09, 2006
Posted to Indiana Courts

Courts - Judicial races in Kentucky getting expensive

See this entry today from Michael Stevens' Kentucky Law Blog, including this quote from the Kentucky Post:

When Kentucky Court of Appeals Judge Daniel T. Guidugli first ran for the court 10 years ago, he spent $25,000 on his election campaign.

He's been told he could easily spend almost 10 times that much to win re-election in November. That's one of the reasons, along with his health, that he cited Wednesday in announcing his plans to retire in December.

"I'm told you have to have all these hired consultants and put on all these ads on TV and radio," he said Wednesday. "I'm not wealthy, No. 1, and No. 2, I don't like having to go out and beg for money."

Posted by Marcia Oddi on Thursday, March 09, 2006
Posted to Courts in general

Ind. Law - More on: Wine shipping resolution not dead?

Updating this ILB entry from this morning, apparently it is the pretrial fees bill, HB 1016, that may be gutted to include new wine shipping language.

Whether that language will be beneficial to Indian's wineries, however, is still up in the air. Here is some information from a release the ILB has just received:

"We are still disappointed in the direction the legislation is moving," said Larry Satek of Satek Winery in Fremont, who is president of the Indiana Winegrowers Guild. "Consumers should know that if this legislation passes, their freedom of choice will be compromised. Our version of the bill also does not criminalize consumers for minor violations.”

"House Bill 1016, if passed, will not only limit consumer choice, but also prevent me from growing my winery business," said Bill Oliver of Oliver Winery in Bloomington. "Our version of the bill allows responsible, law abiding consumers to buy the wine they want versus what the wine wholesalers will let them buy.”

“We think it is important for Indiana to help existing businesses, notably small businesses," said Dr. Charles Thomas of Chateau Thomas Winery in Plainfield. "Our version of the bill allows small businesses such as mine to prosper, gives consumers choice, and ensures minors are protected.”

No proposed conference committee report has yet been filed to HB 1016, so the ILB cannot direct you to a copy of the language. Here, however, is a copy of information about the proposal prepared by the wineries group.

[More] Here is a story from yesterday's Madison Courier that may be at least partially outdated by now. A quote:

The “poison pill provision” says that if an exception to the three-tier system is deemed unconstitutional or invalid, then the state will limit rather than expand exceptions to the method. Simply put, if the state determines a winery or brewery is not following the three-tier system, then it will enhance the three-tier-system, and make regulations barring wineries from selling their products without the use of a wholesaler. The provision also could apply to wine tasting rooms in wineries.

If the provision passes, small wineries would be affected because wine tasting rooms would not fall within the parameters of the three-tier system.

According to Linda Jackson, a publicist for Indiana wineries, the “poison pill provision” would kill small Indiana wineries.

Posted by Marcia Oddi on Thursday, March 09, 2006
Posted to Indiana Law

Environment - Ten-year moratorium on new hog farms in North Carolina will end soon, with no viable solution in sight

The Raleigh North Carolina News & Observer reports today, in a story headlined "Farmers seek state help on hog waste":

North Carolina researchers have spent six years and $17.3 million looking for a better way to manage hog waste than the giant open-air pits that threaten rivers, wells and air quality.

On Wednesday, the state's study, funded by hog producers, ended with the announcement that there are plenty of cleaner alternatives -- but none that the average farmer can afford.

Still, a group of farmers and environmentalists says it is time to start using new systems that could make those hog lagoons obsolete. And they want the state to help foot the bill.

"We do not need any more regulations; we need solutions," said Lamont Futrell, a Wilson hog farmer. "This is going to be a long, hard process."

Futrell is president of a grass-roots organization called Frontline Farmers. His group has joined with Environmental Defense, a nonprofit that focuses on water quality, to push for a $20 million project to put new waste-treatment systems on 50 to 100 of the state's 2,600 hog farms.

The two groups will ask state lawmakers, grant-making institutions, farmers and pork companies to chip in, they said Wednesday.

"We know alternatives are out there, but the costs are too much. So now what?" said Dan Whittle, a lawyer with Environmental Defense. "Steps must be taken to turn this research into reality."

Mike Williams, an N.C. State University scientist and the lead researcher in the state study, looked at all manner of cutting-edge technology: systems that burn waste, treat it in enclosed tanks or recycle it into usable water. Some systems would even generate electricity or other energy, which Williams said farmers could sell.

Whittle said that testing the systems on a larger scale would help their manufacturers cut costs. And he predicts that the project would uncover a system that farmers can afford.

In the mid-1990s, the story reports, after several major lagoon ruptures sent millions of gallons of waste into rivers and countless complaints of the stench created by thousands of pigs raised in close quarters, "public pressure led state lawmakers to ban new hog farms. None have been built since 1997. In 2000, two top pork producers, Smithfield Foods and Premium Standard Farms, agreed to pay for a study to identify more environmentally sound technologies." The moratorium on new hog farms expires in 2007. However:
No one has committed to paying for the program. Pork company executives say they already have spent millions on the study, and now they want the state to provide incentives for new technology. Some state lawmakers say the state has an obligation to help farmers solve the problems created by lagoons. The state mandated the use of lagoons in 1993.
The last third of this ILB entry from Jan. 29, 2006 quotes from a 1999 NY Times story. Just some of its vivid description:
Nowhere is the industry more entrenched, or its political power stronger, or the hurricane's farm damage greater, than in Duplin County. With 48 hogs for every resident, the county has the densest concentration of hogs in the country.

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

See also this photo from today's News & Observer story, which is captioned: "In Duplin County, hog houses and waste lagoons stack up in this 1998 photo. Waste spills and odor complaints led to a hog-farm moratorium in the 1990s."

This ILB entry
from July 4, 2004, quotes from a NY Times story of that date, also looking at the same North Carolina researcher, Mike Williams, and his hog waste study.

Finally, what has the pork industry done
during the 10-year moratorium on new hog farms in North Carolina because of the problems of dealing with hog waste in that state? Moved into states like Kentucky and Indiana. This ILB entry from Aug. 22, 2005 includes this quote from a Louisville Courier Journal story:
With what were seen as friendly regulations and an abundance of feed and nearby slaughterhouses, North Carolina became a leading pork producer in the mid-1990s. But lagoon failures and manure spills prompted the state to freeze permits for 10 years in 1997.
The Jan. 29, 2006 ILB entry includes this quote from the Muncie Star-Press:
On Jan. 17, IDEM granted permission to Goldsboro, North Carolina-based Ivey's Spring Creek Farm of Indiana, to build an operation containing 700 sows, 2,000 nursery pigs and 4,000 grow-to-finish hogs at 4105 N. Ind. 1, Hagerstown. * * *

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

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

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

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

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

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

Posted by Marcia Oddi on Thursday, March 09, 2006
Posted to Environment | Indiana economic development

Ind. Courts - Q&A issued for Court's CMS Public Notice of Contracting Opportunity (PNCO)

The Indiana Supreme Court's Judicial Technology and Automation Committee (JTAC) has posted a set of Questions & Answers to the Request for Proposals it issued Feb. 13th (see earlier ILB entry here). It has also extended the due date for responses to March 31, 2006.

It has also announced: "As a result of questions we have received, JTAC will be publishing a second amendment to the PNCO released on February 13, 2006 by 6:00 pm EDT on Thursday, March 9, 2006." Nothing has been posted yet. [Update: Now changed to 6:00 pm EDT on Friday, March 10, 2006.]

Particularly interesting to the ILB were these two Q & A:

63. Question: Is the State asking for specific estimates for the work outlined in Section H? Are there any further detailed requirements for section H?

Answer: As stated in Section H. Interfaces, “At this time, specifications adequate to provide accurate cost estimates for these interfaces are not available. Specific cost estimates for these interfaces will be discussed in later stages of the proposal.” Please see Section L. Pricing. (2.b.iii.) for pricing requirements regarding interface design and development.

64. Question: What is the role of the State with this system? Some requirements look like they envision a "big database in the sky", while others look like there are local installations. For example, they want to modify personal identifiers at the state level....Although wouldn't this be captured and maintained at the local level?

Answer: The Division expects that all courts adopting the Statewide CMS will utilize a single database hosted in the State's Data Center in Indianapolis . The Division anticipates that certain demographic information entered into the system at the local level is not subject to local modification and can only be modified at the state level (e.g., gender). The Division also seeks flexibility for entering, maintaining and modifying additional demographic information at the local level (e.g. addresses and identifiers for local interfaces).

Section H of the RFP deals with "Interfaces" and the ILB took particular note of this section in its Feb. 13th entry.

Posted by Marcia Oddi on Thursday, March 09, 2006
Posted to Indiana Courts

Courts - 7th Circuit's Judge Diane S. Sykes speaks on judicial activism in the Wisconsin Supreme Court

The Milwaukee Journal-Sentinel today has an opinion piece by 7th Circuit U.S. Court of Appeals Judge Diane Sykes, excerpted from the Hallows Lecture she delivered Tuesday, March 7, 2006 at Marquette University Law School.

Her focus is the Wisconsin Supreme Court, on which she served for five years, and more specifically, on:

a dramatic shift in the court's jurisprudence, departing from some familiar and long-accepted principles that normally operate as constraints on the court's use of its power: the presumption that statutes are constitutional, judicial deference to legislative policy choices, respect for precedent and authoritative sources of legal interpretation and the prudential institutional caution that counsels against imposing broadbrush judicial solutions to difficult social problems.

I will concede, as I must, that a court of last resort has the power to throw off these constraints, revise the rules of decision and set the law on a new course. But when it does so, we ought to sit up and take notice. . . .

The Wisconsin Supreme Court is quite vigorously asserting itself against the other branches of state government. When the court decides cases on the basis of the state constitution, its power is at its peak, because legislative correction is impossible and the constitution is difficult to amend. . . .

The terms "modesty" and "restraint"- the watchwords of today's judicial mainstream - seem to be missing from the Wisconsin Supreme Court's current vocabulary. Instead, the court has adopted a more aggressive approach to judging. * * *

The present Wisconsin Supreme Court is plainly disinclined to defer to the judgment of those elected to represent the people of this state, even though the structure of state government and the court's precedents require it to do so. The court has lowered the threshold for invalidating statutes by adopting a heightened standard for evaluating their constitutionality. The court is quite willing to devise and impose its own solutions to what it perceives to be important public policy problems civil and criminal - rather than deferring to the political process.

The court has also manifested a cavalier, almost dismissive attitude toward the sources of legal interpretation generally thought to be most authoritative: the text, structure and history of the constitution and laws and the court's own precedents.

The entire, 26-page paper, “Reflections on the Wisconsin Supreme Court,” is available here.

[Thanks to How Appealing for the pointer.]

Posted by Marcia Oddi on Thursday, March 09, 2006
Posted to Courts in general

Ind. Courts - March Res Gestae article on the recent effort to change the judicial nominating process

Here is the submitted version of my March 2006 column in Res Gestae, the monthly journal of the Indiana State Bar Association. Titled "Analysis of another effort to alter the Indiana judicial selection and retention process," it appears on pages __-__ of the March 2006 issue.

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. * * *

The proposal would have: (1) abruptly terminated the current terms of both the attorney and citizen members of the Judicial Nominating Commission: (2) changed the method of selection of the attorney members and provided for election of new attorney members, to take office July 1st; (3) required the Governor to fill the three now vacant citizen positions by the end of May; and (4) required that the reconstituted commission evaluate the judges and justices up for retention, beginning with the November 2006 election, and recommend on the ballot whether each appellate judge and justice up for retention should stay or go.

In researching the article, I learned that "In 1986, the General Assembly reduced the six-year terms for nonattorney commissioners to three-year terms, and reduced the six-year terms for attorney commissioners to three-year terms." I also learned that:
The citizen commissioner slot for the Third District has been vacant since March 2005 when the serving commissioner resigned. That three-year term for the Third District expired December 31, 2005. The opening is now in a new cycle that runs through December 31, 2008. Although IC 33-2.1-4-1(e) requires that “vacancies in the office of non-attorney commissioners shall be filled by the governor within sixty days after he has notice of such vacancy,” the Third District spot has been unfilled now for approximately one year.
[My monthly columns and other writings are also accessible via the link labeled "Some of my publications are available here," in the right column, beneath the search box.]

Posted by Marcia Oddi on Thursday, March 09, 2006
Posted to Indiana Courts

Ind. Decisions - Judge tosses out evidence involving use of GPS

Mark Wilson of the Evansville Courier& Press reports today:

A Warrick County judge has thrown out evidence against the man police nicknamed the "Backdoor Burglar" because Evansville police failed to tell a judge they used global positioning satellites to track their suspect.

In suppressing the evidence, Warrick Circuit Court Judge David Kelley questioned investigators' actions in not disclosing the GPS surveillance to another judge when the police sought a search warrant: "Did the (police) not want the issuing judge to know the truth?"

Kelley called the omission a "critical fact" and failure to reveal it "a fatal flaw" that led to insufficient evidence for issuing the search warrants.

Kelley also ruled that hiding a Global Positioning System on Aaron J. Vaughn's car violated the Indiana Constitution because officers could not show they had reasonable suspicion of criminal activity.

In addition to the lengthy story, the Courier & Press has posted a copy of the 6-page Order Granting Motion to Suppress.

Posted by Marcia Oddi on Thursday, March 09, 2006
Posted to Ind. Trial Ct. Decisions

Courts - In Kentucky: "Take your opponents to court to get them removed from the ballot"

The Louisville Courier Journal reports today, in a story by Kay Stewart:

It's becoming a Jefferson County campaign tactic: Take your opponents to court to get them removed from the ballot.

This time it's a candidate for family court judge who wants his two opponents disqualified because he says they messed up their filing papers.

Among their mistakes? They wrote "10th" instead of "Tenth" to identify the family court seat they are seeking, according to candidate Jack D. Wood.

And that, Wood argues, is reason enough to get incumbent Paula Sherlock and Rebecca Swope Atkins removed from the ballot.

The law "wasn't followed and it needs to be followed," Wood said.

If he's successful, Wood would win the election by default.

Wood's opponents aren't amused by the legal maneuver.

Sherlock, who was appointed last year to fill a vacancy, called it "an attempt to get publicity from someone who can't campaign on his qualifications."

Atkins said she hadn't read the lawsuit but thought it sounded "bizarre."

Wood, 54, who has had his own legal troubles and has lost elections for state attorney general, family court judge and Louisville Metro Council, said their comments "are the normal things lawyers say when they're on the defense."

A state law that took effect last July outlines the precise phrasing for Jefferson County judicial seats, Wood said. Sherlock and Atkins failed to write, "Tenth division, family court," on their filing papers, according to his lawsuit.

In response, Sherlock has hired Jennifer Moore, who represented Democrat Virginia Woodward in her legal battle with Republican Dana Seum Stephenson over Jefferson County's 37th Senate District seat.

That fight ended up before the Kentucky Supreme Court, which ruled that neither Stephenson nor Woodward could be seated.

Don't miss this entry from Wednesday in the Kentucky Law blog, titled "Podcasts, Blogs, and Judicial Elections," and the somewhat chilling entry from last December headed "The New Political Reality of Judicial Campaigns."

Posted by Marcia Oddi on Thursday, March 09, 2006
Posted to Courts in general

Environment/Econ. Dev. - State's Pilot Shovel-Ready Program now in place

According to the new program's page on the Indiana Finance Authority website:

The Pilot Shovel Ready Program is a new state program created to help communities certify sites as "ready for development." Shovel Ready is designed to ultimately help companies locate and develop a property site quickly. This provides a competitive advantage for Indiana and gets Hoosier jobs here faster. The Goals of the Pilot Shovel Ready Program are to:
  • Help local communities prepare sites ready for development by pre-permitting a site as much as possible
  • Certify sites to help companies more easily navigate the selection and permitting process
  • Generate a list of remaining permits necessary for a specific site
  • Help fast track the remaining state, federal and local business/industry specific permits
For the Pilot Shovel Ready program, eligible expenses may qualify for up to a $10,000 grant if Shovel Ready Certification is awarded. Applications will be due by 5pm on Monday, May 15th.
The Draft Pilot Shovel Ready Guidelines, available here, include these minimum standards:
  • Executive-Level Community Support (Mayor, County Commissioner, Town Council President)
  • Ownership of property clearly identified. Property should be owned or optioned by local economic development organization, local unit of government, developer, end user or utility.
  • Infrastructure in place - Infrastructure includes: roads, electric, gas, high speed communications, wastewater treatment and public water supply, air, rail, highway access (an appropriate capacity for each identified item will be determined)
  • Wetlands survey complete (IDEM - State, Army Corps – Federal)
  • Identify water bodies and receiving streams associated with the site
  • Topography maps associated with site is supplied
  • Environmental assessment of property complete through appropriate Phase I, and if indicated, a Phase II evaluation
  • Remediated sites with an appropriate liability protection documented
  • Obtain necessary approval from Fire Marshall on condition of site
  • Document commitments from local government to “fast track” remaining permits
  • Use permits, variances, and approval of development plans
  • Expedite scheduling of public hearings
  • Local building inspections or construction permits when a specific business has been identified.
  • Curb cut permits; access plans, Right Of Way dedication, traffic study requirement
  • Local zoning is consistent with proposed use of shovel ready site
  • Drainage plans
  • Occupancy certificates
  • Posted by Marcia Oddi on Thursday, March 09, 2006
    Posted to Environment | Indiana economic development

    Ind. Law - Wine shipping resolution not dead?

    It's hard to say. The Louisville Courier Journal's Lesley Stedman Weidenbener has a story today headed "Wine bill may get new life: Fenced deer hunting measure all but dead" that covers a number of topics. Some quotes:

    Members of the House and Senate continue to negotiate on the remaining bills alive in the General Assembly, trying to meet a midnight Tuesday deadline for action. * * *

    Lawmakers also continued to work yesterday on a proposal to let wineries continue limited direct shipping of their products to customers.

    Earlier this session, the wineries and wine wholesalers seemed close to a deal that would have allowed direct shipments, which the Indiana Alcohol and Tobacco Commission has recently said violate state law.

    Senate President Pro Tem Robert Garton, R-Columbus, killed the bill, though, when he learned lawsuits are pending on the issue. Garton has a longstanding policy that the Senate should not get involved in lawsuits.

    Now, Rep. Matt Whetstone, R-Brownsburg, is trying to revive the proposal in a conference committee on an unrelated bill. He said he's hopeful that Garton will agree to go along with the new plan -- if the wineries and wholesalers can agree on a compromise. [emphasis added]

    As proposed by Whetstone yesterday, the plan would allow wineries to ship up to 24 cases of wine to an individual in one year but no more than 3,000 cases to all customers.

    But only wineries that sell less than 600,000 gallons of wine would be eligible. That could be a sticking point for some of the state's larger wineries, including Oliver Winery in Bloomington, because it hopes to expand and exceed that amount.

    Whetstone said yesterday that it's essential the General Assembly act, rather than leaving the court to decide the issue. Lawmakers fear a judge might take an extreme position, such as allowing all direct shipments of alcohol or allowing none. "I think it's critical that lawmakers are the policy makers and not the courts," Whetstone said.

    The story does not say what the "unrelated bill" in conference committee is, but I've heard it may be HB 1016, which has been described to the ILB as "a bill supported by all of Indiana Judges to make those on supervised release pay for the services granted to them while out on bond." The proposal is said to be very unpopular with the surety bail bond industry. As the subjects of wine shipping and court fees have little in common, presumably the intent would be to strip out the contents of HB 1016 and replace them with the compromise wine shipping language. Of course, this is entirely speculation at this point.

    The question remains of whether Senator Garton, who killed the wine shipping compromise once already because of his rule that the Senate will not consider bills relating to pending litigation, would reverse course at this point. Or would the wine shippers withdraw their law suit? Presumably they would not do this unless they were assured a satisfactory compromise -- remembering that nothing is set in stone until the final gavel falls and the General Assembly adjourns sine die.

    See this March 6th ILB entry that ends with a comprehensive history of the wine shipping issues.

    Posted by Marcia Oddi on Thursday, March 09, 2006
    Posted to Indiana Law

    Wednesday, March 08, 2006

    Ind. Courts - Report on Court of Appeals argument at ISU

    Updating Monday's ILB report titled "State’s Court of Appeals to hear case at ISU Tuesday" is this story today from Indiana State University's Indiana Statesman, written by Allison MacMunn. Some quotes:

    The Indiana Court of Appeals usually hears oral arguments in the Indiana State House, but it visited ISU so that students and community members might learn more about the court's function.

    While the court consists of 15 members, panels of only three are assigned to each case. Judges Melissa S. May, Patricia A. Riley and Margaret G. Robb heard the abbreviated oral arguments pertaining to the State of Indiana v. Michael Keller.

    "We love having these kinds of oral arguments for public education," Robb said. "We like to meet with students; we are approachable people who are more than happy to explain the system."

    "We try to pick cases that we believe will interesting to the audience," Robb said.

    Riley, who has been on the court for 12 years, said, "We try to have as many oral arguments as possible."

    May, who has been on the court for eight years, said the Indiana Court of Appeals gets cases that have already taken place on trial courts. The Court of Appeals considers if the trial court had the authority to do what it did, but Robb said it is rare for the Court of Appeals to overturn a ruling.

    "It has to be an abuse - it has to be clearly wrong," Robb said. "The lawyers arguing are advocating a cause, so we have to be the ones to look at the case from all sides of it."

    While the Court of Appeals hears approximately 2,500 cases a year, 200 million [sic.] cases are filed in Indiana heard by trial court judges annually. * * *

    After the oral arguments, the judges opened up the floor so that students might ask questions. * * *

    Brenda Moore, senior legal studies major at ISU, said the hearing was extremely interesting and that she learned that while there were only approximately 10 percent of female judges in 1990, there are no more today.

    "Seeing this hearing made me feel like I can be part of the change and part of the trend," Moore said. Still deciding upon her career options, Moore said, "I thought it was interesting that they said being a deputy prosecutor or public defender is the most fun you can have with a law degree."

    Riley said that law schools contain approximately 50 percent women, but women in law professions tend to be commissioners and magistrates rather than judges. "I think that it's important for women to set their goals high," Riley said. "There are not enough women judges, don't be limited in your profession and career simply to remain safe."

    Riley said that while there are limitations in being a judge, she was still able to raise her kids despite the sacrifices. "Aim high. I get fearful that young women think we have it made," Riley said. "There is still a glass ceiling."

    "I hope they have a better understanding of the judicial process that many believe only happens behind closed doors," Riley said.

    Posted by Marcia Oddi on Wednesday, March 08, 2006
    Posted to Indiana Courts

    Ind. Decisions - One Indiana decision from 7th Circuit today

    In Loubser, Annare L. v. USA, et al. (ND Ind., Allen Sharp, Judge), a 14-page opnion with Judge Sykes concurring in part and dissenting in part beginning on p. 7, Judge Posner begins:

    Annare Loubser brought this federal civil rights suit under 42 U.S.C. § 1983 against more than 40 individuals who she alleges conspired to defraud her by corrupting her divorce proceedings; those proceedings ended in a judgment that, she claims, deprived her of property to which she was entitled. She brought this suit after the state appellate court had affirmed the judgment in the divorce proceedings. The district court dismissed the suit on the pleadings as barred by two judge-made doctrines: Rooker-Feldman, which denies the lower federal courts the authority to overturn a state court judgment, and the “domestic relations exception,” a judge-made doctrine that denies to the federal courts jurisdiction over domesticrelations matters such as divorce on the theory that the reference to “the judicial Power” in Article III of the Constitution was intended to exclude the powers exercised by Britain’s ecclesiastical courts, which, rather than the common law courts at Westminster, exercised jurisdiction in such matters.

    Posted by Marcia Oddi on Wednesday, March 08, 2006
    Posted to Ind. (7th Cir.) Decisions

    Ind. Decisions - Court of Appeals issues one today

    In Omer Mohamed v. State of Indiana, a 7-page opinion, Judge Darden writes:

    Omer Mohamed appeals his conviction on one count of possession of a controlled substance analog, a class D felony. We reverse. * * *

    Mohamed argues that the statutory definition of a controlled substance analog, see IND. CODE § 35-48-1-9.3, is unconstitutionally vague in that it failed to provide him with sufficient notice of the fact that having khat plant material in his possession could subject him to criminal sanction. Mohamed also argues that there was insufficient evidence to support his conviction beyond a reasonable doubt. Because we find the latter argument dispositive, we do not reach his constitutional argument. * * *

    Thus, the State was required to prove not only that Mohamed possessed an analog substance that has a substantially similar chemical structure to that of a controlled substance but also

    • that the analog substance has an effect on the central nervous system “substantially similar to or greater than” the effect of the controlled substance, or

    • that he represented or intended the analog substance to have an effect on the central nervous system “substantially similar to or greater than” the effect of the controlled substance. I.C. § 35-48-2-4(f).

    Beasley’s testimony established that cathinone’s chemical structure is substantially similar to that of methcathinone. However, as recounted above, at trial only Beasley testified about the effects of cathinone as compared to methcathinone, and his unequivocal testimony was that he had no knowledge of the comparative effects. Consistent with this record of the trial below, the State conceded at oral argument2 that it had failed to meet its burden of proof with respect to the statutory element concerning the effects of the alleged analog substance. Because there is no evidence to establish this element, the evidence was insufficient to establish beyond a reasonable doubt that pursuant to Indiana Code section 35-48-1-9.3, cathinone is a controlled substance analog or that Mohamed possessed a controlled substance analog. Therefore, his conviction must be reversed.
    The Court adds in a footnote:
    We heard oral argument on this case at the Indiana University School of Law – Indianapolis on February 16, 2006. We thank the law school for its hospitality, appellate counsel for their able presentations, and the students for their participation in the subsequent discussion.

    Posted by Marcia Oddi on Wednesday, March 08, 2006
    Posted to Ind. App.Ct. Decisions

    Ind. Courts - Judge halts jailings in drug test dispute

    Or, "More on debate over mouth swabs." The Munster (NW Indiana) Times yesterday reported, in a story by Bob Kasarda:

    VALPARAISO | Porter Circuit Court Judge Mary Harper has decided to play it safe until the debate over the reliability of the county's oral drug tests is settled.

    Harper informed the county probation department Monday that it should no longer automatically send offenders from her court to jail if they test positive with an oral test for cocaine use while on home detention.

    The change will remain in place until the validity of the tests is determined, she said. * * *

    The probation department and the local Great Lakes Lab have defended the validity of the tests in the face of concerns raised by numerous defense attorneys and their clients.

    The county's six judges are considering taking the unique step of hosting a shared hearing in hope of addressing the concerns.

    Cheryl Polarek, Porter County deputy prosecutor, said Harper is the first judge in the county to suspend the standing arrest warrants in response to the controversy.

    For background, see this ILB entry from Feb. 16th titled "Judge clears way for challenge to oral drug tests," and this one from March 2nd concerning a "loophole discovered in drug test cases."

    Posted by Marcia Oddi on Wednesday, March 08, 2006
    Posted to Indiana Courts

    Ind. Courts - Judge rules in Clark County dispute between judges and County Council [Updated]

    This Nov. 3, 2005 ILB entry gives the background to today's story in the Louisville Courier Journal, by Alex Davis, headed "Judge rules Clark wrong to take cash from courts." Here is a quote from an earlier story by Davis, in the Nov. 3, 2005 LCJ:

    A lingering financial dispute between Clark County's four elected judges and the County Council is now casting uncertainty over the county's budget for a second straight year. The two sides have been arguing since September 2004 over which of them controls hundreds of thousands of dollars a year in fees paid by participants in court-supervised probation programs.

    The judges argue that the county's 2005 budget illegally relies on the fee money for $921,000 in expenses. They're also protesting next year's budget, which will use $1.1 million in fee money to keep the government operating. The judges filed a lawsuit over the matter earlier this year. If they prevail, the council could be forced to give some or all of that money back to the judges, then find the revenue needed to replace it. * * *

    The suit is now scheduled to go to trial Feb. 16 in Clark Circuit Court before Elaine Brown, a special judge from Dubois County.

    Similar arguments over probation fee money have surfaced in other Indiana counties in recent years. David Bottorff, executive director of the Association of Indiana Counties, said the Clark County suit could have "statewide ramifications" by producing one of the first court rulings on the matter.

    Regardless of the outcome, the county's taxpayers will foot the bill for lawyers on both sides of the dispute. Legal costs previously had been estimated at $50,000, and Hollis said this week that the figure could be as much as $75,000 before the matter is resolved.

    Today's story reports:
    The Clark County Council acted illegally when it approved hundreds of thousands of dollars in spending over the last two years, a judge has ruled.

    Council President Jim Smith predicted that the ruling could lead to the layoffs of dozens of county employees. The money, from fees generated by court-supervised probation programs, was used to plug holes in the county's budget for this year and last year.

    The county's four elected judges sued the seven-member council over the matter last year, claiming that it didn't have the authority to appropriate money collected by the courts.

    Elaine Brown, a special judge from Dubois County, sided with the judges in a ruling filed Friday in Clark Circuit Court. In addition to declaring the council's actions illegal, Brown ordered it to reimburse the judges for the entire amount in question and to pay their legal expenses.

    Smith predicted that the ruling could have disastrous consequences for the county's finances. "There's not really a positive spin on this," he said yesterday, estimating that about $1.9million is at stake. "It was a complete slam dunk for the judges." * * *

    Some council members have accused the judges of not being responsible stewards of the fee money. In recent years, the fees have been used to pay for such things as candles and paintings to decorate offices.

    And last month a former top employee of Superior Court 1 acknowledged that he used probation-fee money to pay his wife's cell phone bill and for political campaign materials. The employee, Jerry Lemmons, has since resigned and said he reimbursed the county. His former boss, Superior Court Judge Jerry Jacobi, has said the State Board of Accounts is looking into the matter.

    Dan Moore, an attorney who represented the County Council in the suit's early stages, said yesterday that he was not surprised by the ruling. He said legal experts on both sides of the case expect the matter to be resolved by the Indiana Court of Appeals.

    Moore said two similar lawsuits — one in Grant County and the other in Warrick County — resulted in favorable rulings for the county councils at the appellate level, reversing decisions by the trial judges.

    In her decision last week, Brown said that in the future the Clark County Council must seek approval from the judges before approving any spending of the fee money.

    Interesting. If this was a mandate action under Trial Rule 60.5 as the ILB believes it was [but the ILB was wrong -- , see the Update below], the case will not go to the Court of Appeals. Rule 60.5 provides in part:
    Unless expressly waived by the respondent in writing within thirty (30) days after the entering of the trial judge's decree, a decree or order mandating the payment of funds for the operation of the court or court-related functions shall be automatically reviewed by the Supreme Court. Promptly on expiration of such thirty (30) day period, the trial judge shall certify such decree together with either a stipulation of facts or an electronic transcription of the evidence to the Supreme Court. No motion to correct error nor notice of appeal shall be filed. No mandate order for appropriation or payment of funds made by any court other than the Supreme Court or Court of Appeals shall be effective unless it is entered after trial as herein provided and until the order has been reviewed by the Supreme Court or such review is expressly waived as herein provided.
    Here are two orders (one and two) of the Supreme Court appointing Judge Brown as a special judge in the matter, pursuant to Trial Rule 60.5.

    [Updated] Thanks to the LCJ's Alex Davis, here is information from David Lewis, the attorney for the judges in the case, clarifying that this was not the mandate case:

    Judge Brown’s decision was entered in the declaratory judgment case, not the mandate case.

    Quick history: In March ’05 we filed an action for mandate and an action for declaratory judgment and injunction all in one case under one cause number. The Indiana Supreme Court appointed Judge Brown to the case. The council objected to the joinder of a mandate claim with the other two claims. Judge Brown dismissed the declaratory judgment and injunction on procedural grounds without prejudice, giving us the right to re-file, and agreeing to serve as the judge in the new case after it was re-filed.

    The mandate case was not dismissed, and may still be litigated with Judge Brown presiding.

    We re-filed the dec/injunction action under a separate cause number in June, ’05. By agreement, Judge Brown was appointed in the new case. Also by agreement the parties litigated the dec/injunction case ahead of the mandate case.

    There were other mandate cases relating to issues other than probation user fees. All of those mandate cases have either been dismissed when the council gave what was being requested or were otherwise settled.

    Posted by Marcia Oddi on Wednesday, March 08, 2006
    Posted to Ind. Trial Ct. Decisions | Indiana Courts

    Courts - Randolph edges toward buying former Wal-Mart

    "Randolph edges toward buying former Wal-Mart" is the headline today to a story by Joy Leiker in the Muncie Star-Press. Some quotes from today's lengthy story:

    WINCHESTER -- Randolph County once again wants to try to purchase a former Wal-Mart building for temporary courthouse quarters.

    But just as the county council voted 5-2 Tuesday on the first reading of an ordinance to give commissioners permission to pursue the store at 930 E. Washington St., Drew Wright, the commissioner most passionate in his support for demolishing the courthouse, for the first time hinted that the decision could be overturned.

    "That could be changed if necessary," Wright told the council and dozens of people who attended the meeting, referring to the 2-1 vote from June 6 that metaphorically put a wrecking ball on the courthouse lawn.

    Later, in an interview with The Star Press, Wright chalked up those words to saying "what they wanted to hear."

    "It doesn't really mean anything," Wright said, noting that the courthouse plans have changed countless times, from renovations to an annex and, last summer, to demolition. "It's not like it's not a changeable thing."

    Still, Wright -- who is the only one of the three commissioners up for re-election this year -- said he hasn't changed his mind. He still thinks tearing down the courthouse, which was built in 1877, and replacing it with a new structure is the best solution. * * *

    Two weeks ago, Wright said the owner of the Wal-Mart property said he would sell it to the county for $795,000. According to the county assessor's office, the deed for that building lists its value at $625,000.

    Spending that much on the building, when the county expects to have to pour at least another $600,000 into it to turn it into office and work space for courthouse employees, is another big issue in Winchester. Some say that if the county spends all that money in the building, it might as well call Wal-Mart its permanent home. For others, that is their worst fear. * * *

    Some people want to ask the commission to rescind its demolition vote; others simply want all talks to halt until May, when Wright faces a Republican challenger on the primary ballot.

    Clevenger is opposed to relocating government offices inside a Wal-Mart store.

    "I'm not in favor of using Wal-Mart for a government building," he said, drawing applause from the crowd. "The public square is the historical part. I think we ought to work around that."

    Clevenger said Tuesday that he liked an idea previously presented by a retired architect and Winchester native, Ken Boomer. Boomer, of Indianapolis, offered a plan last month that he said would allow for a construction project in phases. His latest drawings included a tower on one side of the existing courthouse, to house restrooms on each floor and an elevator, and even a possible annex on the south side of the building for courts.

    A third possible phase, which Boomer describes as optional, would be to rebuild the decorative top for the courthouse roof, which was torn down more than 50 years ago.

    Posted by Marcia Oddi on Wednesday, March 08, 2006
    Posted to Indiana Courts

    Ind. Courts - Civil litigation fee increase for service of writs and other papers

    Check out Doug Masson's post this morning headed "HB 1158 - $13.27 million civil litigation fee increase for service of writs and other papers." HB 1158 is currently in conference committee.

    Posted by Marcia Oddi on Wednesday, March 08, 2006
    Posted to Indiana Courts

    Ind. Courts - Porter Circuit Court scene of myriad local dramas

    The Munster (NW Indiana) Times today has a story by Jerry Davich headed: "Reality checks always on docket: Porter Circuit Court scene of myriad local dramas." Some quotes:

    Welcome to Porter County Circuit Court, where many cases related to alcohol- or substance-abuse problems are heard routinely.

    They typically don't receive front-page headlines or public attention, yet the fates of many residents' lives are determined here.

    On this day, the wheels of justice ground forward as [Porter Circuit Court Judge Mary Harper] and her staff plowed through nearly 40 such cases, including charges of auto theft, child abandonment, criminal recklessness and driving while intoxicated.

    Outside the cramped courtroom, attorneys chatted to clients and each other, involved in their daily routine. Dozens of defendants waited as five jail inmates shuffled past in orange jumpsuits, handcuffs and leg irons.

    Inside, the state's attorney told [Judge Harper] that inmate James Murray needed to be sent a message. He has a history of DUIs with new charges of intimidation and criminal recklessness after driving drunk with a child in the vehicle. "This has got to stop," the attorney said.

    Posted by Marcia Oddi on Wednesday, March 08, 2006
    Posted to Indiana Courts

    Environment - Community fights proposed dairy farm; Mount Rumpke would double under proposed expansion

    WNDU-TV, South Bend, has a report headed "Community still fighting proposed dairy farm." It begins:

    Lakeville, IN - A proposed dairy farm near Lakeville promises to be a big operation, with 3,500 head of cattle. The developer only needs a state permit to move ahead with the farm and neighbors are not happy.

    Permits for agricultural development are granted on a state level, with no say from local government. It is something most people that live near the proposed dairy farm had no idea about, until now.

    Dean Carbiner, a St. Joseph farmer says, "When cow numbers get into the thousands for a dairy farm, it's no longer a dairy farm, it's a birth of a new industry enterprise. It's now a milk factory and I feel our laws and ordinances have not been able to keep up."

    The Cincinnati Enquirer today has a story headlined: "Mount Rumpke would double: Neighbors protest as firm files for $145M expansion of dump." Some quotes:
    Mount Rumpke stands poised to double the size of its footprint.

    Expansion of the region's biggest garbage dump could generate millions more in fees for area communities, while ensuring that neighbors on surrounding streets would have a blast - of explosives, that is.

    The landfill's increase would cost an estimated $145.5 million and could get under way as soon as 2009.

    Officials with Rumpke Consolidated Cos. Inc., owner and operator of the 333-acre Rumpke Sanitary Landfill, filed papers with Colerain Township's Zoning Commission Monday. The papers requested a zoning change to allow for an eastern expansion. The landfill is nicknamed Mount Rumpke because the dump's summit is the highest point in Hamilton County.

    With the increase, the size of the base of the man-made mountain of trash would grow by 291 acres. Throw in surrounding buffer zones, planned greenspace, parkland and industrial parks, and the site would end up occupying a total of 866 acres.

    Posted by Marcia Oddi on Wednesday, March 08, 2006
    Posted to Environment

    Environment - Even more on proposed Pines transfer station

    Following up on yesterday's ILB entry, here is a story in today's Gary Post-Tribune, by Diane Krieger Spivak, headlined "Garbage ruling not coming until April." Some quotes:

    Sean Blieden won’t know if he will have to stop work on his LaPorte County waste transfer station for another six weeks or so.

    But opponents of the planned garbage facility say it could ruin roads, affect property values and possibly pollute the national lakeshore.

    Indiana Department of Environmental Management Chief Environmental Law Judge Mary Davidsen, who heard evidence both for and against staying the permit for Great Lakes Transfer, LLC, said it would likely be some time in April when she rules.

    A two-day hearing that ended Monday included evidence from two towns and two counties opposing IDEM’s permit for the garbage transfer station, at 5535 N. County Line Road on the LaPorte/Porter county line. Shaw Friedman, an attorney representing LaPorte County, argued that the permit should never have been granted last year.

    The ILB will post Judge Davidsen's decision when it becomes available.

    [The ILB has had many entries on the disputed, proposed Pines Transfer Station. To locate many of the earlier entries, type "Pines" in the search box in the right column.]

    Posted by Marcia Oddi on Wednesday, March 08, 2006
    Posted to Environment | Ind. Adm. Bd. Decisions

    Tuesday, March 07, 2006

    Courts - Interesting view on issues facing the Kentucky courts

    The KentuckyLawBlog.com had a long and fascinating entry Saturday that I've just spotted. It begins:

    Is Lady Justice crying under that blindfold or just smarting a black eye?

    Does it seem that our judiciary is being pounded by partisan politicians for an electoral process that the politicians created and our judges must live with?

    A few months ago, our Supreme Court was thrust in the middle of the political maelstrom to resolve whether a senator was qualified to sit (Woodward v. Stephenson). Now, the Supreme Court is in the thick of another political battle between the attorney general and the governor regarding the merit system investigation, the grand jury, and gubenatorial pardons.

    Some have claimed this is a political fight involving branches of government, other say it is nothing more than enforcement of the laws. In any event, the matter is now before our state's highest court. And no sooner had the paperwork hit the clerk's office, then we had Chief Justice Lambert and most recent appointee Justice John Roach recusing themselves with the latter giving reasons and the former (Lambert) remaining silent. Consequently, Governor/Appellant Fletcher then appointed two special justices to hear his own case.

    Now, we have a non-litigant, non-party, political commentator/editor/blogger, filing a complaint with the Kentucky Judicial Conduct Commission to disallow these two special justices to serve on the Supreme Court to hear a case involving the same governor to whom they had previously made financial contributions, plus one of the special justices is a sitting circuit court judge appointed to that bench by the same governor.

    Take a breath. That is just the beginning of the entry.

    Posted by Marcia Oddi on Tuesday, March 07, 2006
    Posted to Courts in general

    Ind. Decisions - Porter County Court decides email spam suit

    Thanks to the Porter County Superior Court for sending this March 6, 2006 opinion by Judge David L. Chidester, Div. 4, in the case of Moseley v. America Online [note: file repaired].

    Moseley contracted with Godaddy.com to host his website, sportsonlyauction.com. He also sent email from the site at the rate of 15,000 spam emails a day. AOL blocked his spam:

    In its capacity as an ISP, AOL blacklisted the Plaintiff by threatening Godaddy.com that AOL would refuse to let any Godaddy email pass through its servers, clearly a threat to Godaddy’s network.

    Plaintiff claims that this act of blacklisting amounts to tortious interference of the contract between Plaintiff and Godaddy, and the resulting shutdown of Plaintiff’s website by Godaddy resulted in loss of business and goodwill.

    Plaintiff sued AOL for the tortious interference of his contract with Godaddy and in a separate action under 64D04-0508-SC-4356, entitled Howard Mosely versus Godaddy.com, filed suit against his domain registrar for breach of contract.

    My favorite part of the opinion is footnote 1:
    Use of the term “spam” as Internet jargon for seemingly ubiquitous junk email arose out of a skit by the British comedy troupe Monty Python, in which a waitress can offer a patron no
    single menu item that does not include spam: “Well, there’s spam, egg, sausage, and spam.”As additional items of spam are ordered, the name of the menu item grows, i.e. spam, spam, spam, spam, eggs. See also: Kadow’s Internet Dictionary, at www.msg.net/kadow/answers.html. Washington v. Hackel, 143 Wn.2d 824, 24 P.3d 404 (Wash.), cert. denied, 534 U.S. 997 (2001).
    The Court's opinion concluded that "because as a matter of contract, and because AOL has statutory immunity from the claims presented by Plaintiff, judgment is entered for Defendant."

    Posted by Marcia Oddi on Tuesday, March 07, 2006
    Posted to Ind. Trial Ct. Decisions

    About the ILB - Thanks to donors, and more

    Thanks to those of you who have elected to become donors to the ILB. You are few in number, but learning that the ILB has received a donation is like a pat on the back.

    I posted an entry last Aug. 22, 2005, mentioning the new "Support the ILB" opportunity at the top of the right column. Hopefully, a mention every six months or so is enough to keep readers aware of this option.

    The ILB continues to build its audience. January 2006 was the best month so far, with over 37,000 page views (via Site Meter). During the week, page views hover around 1,400 per day. But we strive for a ever larger readership -- please tell your friends and colleagues about the ILB!

    Posted by Marcia Oddi on Tuesday, March 07, 2006
    Posted to About the Indiana Law Blog

    Ind. Courts - 20 apply for vacancy on Lake County court bench

    The Munster (NW Indiana) Times reports today:

    CROWN POINT | The Lake County Judicial Nominating Commission released the names of those who have applied for the vacancy left by the death of Superior Civil Court Judge James Danikolas, Room 3, Gary.

    Danikolas, 69, died Dec. 10 in Key West, Fla., where he was vacationing.

    Danikolas died less than a week after the Indiana Supreme Court ordered him suspended for 60 days for firing Kris Costa-Sakelaris as his family court magistrate in 2003 for what he claimed was her disloyalty to him. She is one of the candidates who now wants to replace him.

    Candidate interviews will begin at 9 a.m. March 20 and 21 in the County Commissioners Courtroom at the Lake County Government Complex. The commission will choose three of the 20 to recommend to Gov. Mitch Daniels, who will make the final choice to fill the vacancy.

    In addition to Costa-Sakelaris, the applicants include Maria Luz Carona, Clifford Eugene Duggan Jr., Gregory Allen Gillis, Wendell Watts Goad II, Diana Cross Gonzalez, Thomas P. Hallett, Calvin Hawkins, Kristen D. Hill, Thomas K. Hoffman, Stephanie Shappell Katich, James John Krajewski, Cheryl Kuchenberg, Christina J. Miller, Tracy Edward Page, Connie June Postelli, Nanette Raduenz, Elizabeth Tavitas, Bessie M. Taylor and James T. Walker.

    Posted by Marcia Oddi on Tuesday, March 07, 2006
    Posted to Indiana Courts

    Environment - More on proposed Pines transfer station

    The Munster (NW Indiana) Times reports today, in a story by Matthew Van Dusen:

    Lawyers for communities opposed to a waste transfer station near Mount Baldy told an environmental law judge that IDEM officials ignored local issues when they granted a permit to transfer station owner Great Lakes Transfer, LLC.

    The hearing was in Indianapolis at the Indiana Office of Environmental Adjudication over two days. It concluded Monday, but the judge will not rule until April at the earliest on whether to stay the permit.

    On Nov. 9, the Indiana Department of Environmental Management granted the permit to Great Lakes Transfer, LLC, President Sean Blieden to build a facility that will take 250 tons of garbage a day, which Great Lakes Transfer will ship to landfills within 24 hours.

    Porter County and the towns of Beverly Shores and The Pines appealed the decision to the administrative law court and LaPorte County joined the petition in January.

    The local government lawyers argued different points before the judges, but Porter County Attorney Gwenn Rinkenberger said they all focused on IDEM's permitting process.

    "It's so amazing how they feel as if they can issue a permit no matter what's happening at the local level," said Rinkenberger. * * *

    Blieden's lawyer Amy E. Romig, from the Indianapolis law firm Plews, Shadley, Racher & Braun, said she would comment on the case later.

    The ILB has had many entries on the proposed Pines Transfer stations. See the most recent here.

    Posted by Marcia Oddi on Tuesday, March 07, 2006
    Posted to Environment | Ind. Adm. Bd. Decisions

    Courts - WSJ Law Blog's Law Blog "Judge of the Day "award

    The WSJ's Law Blog (who knew?) has a worthy post today titled "Judge Rejects Inscrutable Motion, Cites Adam Sandler’s 'Billy Madison'”. A sample:

    In a one-paragraph ruling, Judge Clark wrote, “The court cannot determine the substance, if any, of the Defendant’s legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant’s motion is accordingly denied for being incomprehensible.”

    Posted by Marcia Oddi on Tuesday, March 07, 2006
    Posted to Courts in general

    Ind. Gov't. - GPS tracking could cut Delaware County jail population

    Seth Slabaugh of the Muncie Star-Press reports today:

    Delaware County hopes to reduce jail overcrowding by using GPS satellite technology to track the movement of offenders instead of keeping them behind bars.

    County taxpayers spent more than $500,000 last year to house inmates in out-of-county jails because the Delaware County Justice Center was full, according to the county auditor's office.

    Counties that held Delaware County inmates last year included Blackford, Benton, Howard, Kosciusko, Randolph, Wayne and Wells.

    Delaware County commissioners on Monday signed a contract to lease "ExacuTrack" global positioning system tracking units at a cost of $5.25 a day for each unit. It costs Delaware County about $35 a day for each inmate housed in another county jail, meaning the GPS system could save the county about $30 a day for each inmate. * * *

    "I'm for anything that will help our overcrowding situation without bankrupting the county," Delaware Circuit Court 5 Judge Wayne Lennington said in an interview.

    Even with 55 inmates being housed outside the county, "the jail's still over the limit," said Lennington, the presiding judge of the Delaware County court system. "I don't know what to do. I turned a guy loose on Friday, and he is back in jail today."

    The judge added: "That half a million dollars we spend each year doesn't include the cost of that big van on the road. And we have one or two deputies, that's all they do."

    Posted by Marcia Oddi on Tuesday, March 07, 2006
    Posted to Indiana Courts | Indiana Government

    Law- Judge puts upcoming federal executions on hold

    The Terre Haute Tribune-Star reports, in a story by Karin Grunden:

    Three federal death row inmates who contend in a lawsuit that lethal injections are painful have been granted a stay of execution, court records show.

    U.S. District Court Judge Ellen Segal Huvelle [Washington, DC] ordered a preliminary injunction Feb. 24, barring the Bureau of Prisons from executing James H. Roane Jr., Richard Tipton and Cory Johnson.

    The three co-defendants had been scheduled to die in May at the Federal Correctional Complex in Terre Haute, home to the nation’s federal death row. The trio were sentenced to die after being convicted in a string of drug-related murders in Richmond, Va. * * *

    The injunction in the federal death case is indefinite, until further order of the court. In her ruling, Huvelle also stayed the three men’s federal lawsuit on the constitutionality of lethal injections, pending a decision by the U.S. Supreme Court in a Florida case.

    In that case, death row inmate Clarence Edward Hill is suing the state of Florida, alleging that lethal injection would violate his constitutional protection from cruel and unusual punishment.

    In a court document, Hill’s attorney claims that a succession of the three chemicals commonly used in used in lethal injection — sodium pentothal, pancuronium bromide and potassium chloride — could inflict pain “contrary to the contemporary standards of decency.” * * *

    The Supreme Court has agreed to hear the Florida case, to determine whether Hill’s civil suit falls within federal appeals, as lower courts have ruled, or is a legitimate challenge to the conditions of a condemned inmate’s death sentence.

    Separately, attorneys for Roane, Tipton and Johnson also are alleging in a federal lawsuit that lethal injection is cruel and unusual punishment. They filed the suit in December in the U.S. District Court for the District of Columbia.

    Posted by Marcia Oddi on Tuesday, March 07, 2006
    Posted to Courts in general

    Ind. Gov't. - More on: Failure to submit paperwork to Indiana Public Defender Commission costly to many counties, including Marion

    Updating this ILB entry from Feb. 12th, the Fort Wayne Journal Gazette reports today, in a story by Rebecca S. Green headlined "Wells looking to soften legal costs":

    BLUFFTON – Wells County officials met Monday to discuss whether the county should pursue reimbursement from the Indiana Public Defender Council that could repay some of the money spent providing legal counsel to those who cannot afford it.

    The county commissioners discussed the issue after a story appeared in The Journal Gazette in February that revealed Wells County had not been receiving money from the public defender council, though it was eligible.

    Also present at the meeting were County Attorney Trent Patterson, Auditor Mary Wells, County Council President Pete Cole, Circuit Court Judge David Hanselman, Superior Court Judge Everett Goshorn, and attorney Andy Antrim – who handles much of the county’s public defender work.

    According to Patterson, Wells County had been contacted in 2001 about participating in the Public Defender Council’s program, which reimburses counties for up to 40 percent of their public defender costs provided the county agreed to certain requirements such as caseload limits for public defenders.

    The idea, Patterson said, was to keep small counties from being bankrupted by cases involving the death penalty, which could cost upwards of $1 million to defend.

    Superior Judge Goshorn expressed concern about the program’s caseload limits, which could pose a problem for Wells County because it has only about three attorneys to handle public defender work. Antrim agreed, adding he handled about 150 to 200 public defender cases, both felonies and misdemeanors, in 2005.

    Commissioner Randal Plummer said the program could end up costing more money than it pays back, with the possibility of additional staff required to monitor caseloads or other expenses.

    At the end of the 30-minute meeting, the commissioners asked Patterson to gather additional information and contact the Indiana Public Defender Council about what it would take for the county to be compliant with the program’s requirements.

    Posted by Marcia Oddi on Tuesday, March 07, 2006
    Posted to Indiana Courts | Indiana Government

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

    Updating this Feb. 16th ILB entry titled "Ind. Gov't. - Lawsuit to block closing of Silvercrest fails" is this story today in the Louisville Courier Journal headlined "Ruling on Silvercrest appealed: Parents still fight to keep center." Some quotes:

    Parents and others are appealing a judge's refusal to prevent the state from closing Silvercrest Children's Development Center in New Albany.

    Besides filing notice of the appeal, Mary Jane Lapointe, the plaintiffs' lawyer in Indianapolis, asked the Indiana Court of Appeals to shorten the deadlines for filing briefs so the case could be considered more quickly than usual.

    Noting that the state has ordered that no additional children be admitted to Silvercrest, Lapointe argued that without the earlier deadlines, all children may be moved out and the center closed down before the court can consider the arguments raised in the briefs. * * *

    Lapointe said in her motion to shorten court deadlines that a transcript of the case would be prepared for the court by April 30, sooner than the usual 90 days. She asked that the normal 30-day periods for filing briefs after the transcript is complete be cut to 15 days.

    Posted by Marcia Oddi on Tuesday, March 07, 2006
    Posted to Ind. Trial Ct. Decisions | Indiana Government

    Ind. Courts - Supreme Court to hear three oral arguments this month

    The Indiana Supreme Court is currently scheduled to hear three oral arguments this month. Two of them will be this Thursday, March 9th:

    R & D Transport, Inc. v. A.H. (3/9/06, 9:00 AM)

    A.H. and her mother filed a complaint in Porter County against R & D Transport, asserting claims related to a vehicle accident in Dearborn County. R & D Transport, whose principal place of business is in Hendricks County, filed a motion to change venue, alleging Porter County is not a county of preferred venue. The Porter Superior Court denied the motion. The Court of Appeals affirmed, concluding that because the complaint included a claim for damage to personal property regularly kept in Porter County, Trial Rule 75(A)(2) applied and established preferred venue in Porter County. R & D Transport, Inc. v. A.H. [unpublished], No. 64A05-0502-CV-95 (Sept. 28, 2005), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the decision of the Court of Appeals, and has assumed jurisdiction over the appeal.

    Attorneys for R & D Trans. Inc.; Kenneth Allen, Michael Terwilliger and William Lazarus, all of Valparaiso, IN. Attorneys for A.H.; Michael Langford of Avon, IN and Alvin Finklea of Fishers, IN.

    Utility Center v. City of Fort Wayne
    (3/9/06, 9:45 AM)

    Utility Center filed a complaint for declaratory relief on the issue whether the City of Fort Wayne was properly going about acquiring a portion of the Utility’s property, and the Allen Circuit Court granted the City summary judgment. The Court of Appeals reversed. Utility Center v. City of Fort Wayne (1/13/06), 834 N.E.2d 686 (Ind. Ct. App. 2005). The City has petitioned the Supreme Court to accept jurisdiction over the appeal.

    Attorneys for Utility Center: Paul Helmke, Fort Wayne, IN Joe Conner and Misty Smith Kelley,Chattanooga, IN. Attorneys for City of Fort Wayne: Karl L. Mulvaney. Randolph L. Seger. Brian W. Welch, and Christopher M. York.Indianapolis, IN. Attorneys for Amici Curiae, the Indiana Association of Cities and Towns and Indiana Municipal Lawyers Association: Adam Arceneaux and Brian E. Bailey, Indianapolis, IN Attorneys for Amici Curiae, the Indiana-American Water Co., Inc., et al., and the Indiana Association of Sewer Companies, et al. :Daniel W. McGill, Nicholas K. Kile.Indianapolis, IN. Christopher J. Janak and Ty H. Conner Indianapolis, IN.

    The third case will be argued on Tuesday, March 21st:
    Andrew Biddle v. BAA Indianapolis (3/21/06, 9:00 AM)

    Homeowners brought an action against airport owner and operator alleging excessive airplane noise. The Hendricks Superior Court entered summary judgment for airport owner and operator. The Court of Appeals affirmed in part and reversed in part, holding, among other things, that flights in navigable airspace over homes could constitute a taking of property. Biddle v. BAA Indianapolis (6/30/05), LLC, 830 N.E.2d 76 (Ind. Ct. App. 2005), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal.

    Attorney for Biddle; Steven Huffer, Indianapolis, IN. Attorneys for Indianapolis Airport Auth.; Edward Harris, Scott Alexander, and Michael Chambers all of Indianapolis, IN. Attorneys for BAA Indianapolis; Nelson Nettles, and Richard Norris of Indianapolis, IN.

    Posted by Marcia Oddi on Tuesday, March 07, 2006
    Posted to Ind. Sup.Ct. Decisions

    Ind. Gov't. - "Conference committees: where bills get 2nd look"

    "Conference committees: where bills get 2nd look" is the headline to this story today by Greg Hafkin in the Indianapolis Star. Some quotes:

    With the end of the legislative session just a week away, many bills are heading to conference committees, where lawmakers hope to iron out their remaining differences.

    Two months of debating, voting, amending and moving legislation can come undone after just a few meetings of these committees. Conference committees are allowed to completely rewrite bills, often with little warning beforehand. * * *

    These committees arise after the Senate and the House pass different versions of the same bill. If the bill's original sponsor does not want to accept the changes made in the other chamber, he or she can dissent, prompting the appointment of four lawmakers -- two from each chamber -- to the committee.

    Bills approved by a conference committee go back before the full House and Senate, where they are subject to a yes or no vote -- no amendments allowed.

    Posted by Marcia Oddi on Tuesday, March 07, 2006
    Posted to Indiana Government

    Ind. Courts - Judicial misconduct alleged after drunken-driving arrest

    "Judicial misconduct alleged after drunken-driving arrest" reports the Indianapolis Star today, adding more information to this ILB posting from yesterday. Some quotes:

    A Marion Superior Court commissioner was charged Monday with judicial misconduct in connection with a drunken-driving arrest last June in Hendricks County in which charges were later dropped.

    The Indiana Commission on Judicial Qualifications has charged Israel Nunez Cruz with two counts of failing to uphold the integrity of the judiciary. He faces discipline ranging from a reprimand to removal from his judicial post.

    Brownsburg police say Cruz asked for leniency when he was pulled over, but exactly what he told the officer is in doubt, because the officer quoted Cruz as saying he was a "Marion County councilman." * * *

    Last fall, the local prosecutor, citing the conflicting evidence, dropped two misdemeanor counts of operating while intoxicated. Cruz, a Democrat, is a court commissioner in Marion County who frequently presides over drug cases.

    Posted by Marcia Oddi on Tuesday, March 07, 2006
    Posted to Indiana Courts

    Monday, March 06, 2006

    Ind. Courts - State’s Court of Appeals to hear case at ISU Tuesday

    Indiana State University's Indiana Statesman reports today, in a story by Andrea Sanders:

    The Indiana Court of Appeals will hear an oral argument on a pending case at 11 a.m. Tuesday in Dede III.

    Lisa Decker, associate professor of criminology, said the event is a long- running tradition at ISU. Decker said students, especially those majoring in legal studies and criminology, should take advantage of the event because, instead of sitting in the classroom hearing about the case, they can sit and hear the argument in person. Decker said this is the fifth year the Indiana Court of Appeals has visited ISU to hear an oral argument.

    "The event is an opportunity for ISU students as well as the people of Terre Haute to learn about the justice system," Decker said. "The event will bring the judicial system closer to the people and make them aware of what the Court of Appeals does. People do not always have the time or enough interest in the case to attend. This could be a once in a lifetime opportunity for some of us to see a real court case."

    Decker said the front of the room will be set up like a courtroom. There will be a bailiff, and the people in the audience will pose as the jury. The judges will hear the arguments and will have questions for the attorneys after they argue their case. The judges will make their ruling at a later time.

    A three-judge panel of Judge Patricia A. Riley, Judge Melissa May and Judge Margaret G. Robb will hear the case of Indiana v. Michael Keller.

    Here is the Court's summary of the case. Here are other cases the Court of Appeals will hear this month.

    Posted by Marcia Oddi on Monday, March 06, 2006
    Posted to Indiana Courts

    Ind. Law - More on intrastate and interstate wine shipping in Kentucky and Indiana

    MSNBC is featuring a comprehensive article on the battle betwwen small wineries and distributors from Business First of Louisville. Although the majority of the long article covers Kentucky issues, there is also this discussion:

    A similar bill in the Indiana legislature that would have outlawed direct shipments by wineries in that state died earlier this month before it went to a vote. Indiana vineyards had been allowed to ship their product to consumers, although out-of-state wineries are prevented from doing so.

    The Indiana Alcohol and Tobacco Com­mission issued an order last year prohibiting direct shipments after a U.S. Supreme Court decision required that both in-state and out-of-state wineries abide by the same shipping rules.

    The Indiana wineries sued and got a judge to stay that order until April 1. Unless the Indiana legislature decides the issue by then, wineries in that state could again lose the right to direct-ship.

    Meanwhile, a news release today from representatives of the Indiana wine industry warns: "31 Indiana Wineries in the Crossfire with Proposed Legislation: Consumers encouraged to contact their legislators immediately." Some quotes:
    Indiana residents are encouraged to contact their legislator immediately and ask him or her to say NO to any legislation (including House Bill 1190 and Senate Bill 27) that is a not a clear compromise between the alcohol wholesalers and wineries.

    Why: As it’s written now and if passed, this legislation will kill the winegrower industry in Indiana. If passed, provisions of some bills (including Senate Bill 27 and House Bill 1190) would not only ban wineries from direct shipping to customers and retail outlets, but also jeopardize their ability to sell on the premises via tasting rooms.

    A core issue at stake is addressing the outdated three-tier liquor distribution system. Indiana wineries’ business was not built on the three-tier system. Direct sales to consumers and retailers are the foundation of Indiana wineries’ business model (up to 40 percent of sales for some wineries), yet that’s one of the very things in jeopardy by proposed legislation.

    More than 30 years ago, Indiana gave birth to a new industry: farm wineries. Indiana has watched its wineries prosper and grow to 31 in number, widely distributed across the state. State incentives provided a pro-business model for development, namely the ability to sell directly to consumers in tasting rooms, sell directly to retailers and, although not expressly granted, ship wine to Hoosiers’ homes and businesses. Indiana wineries are tourist destinations, with one million people visiting Indiana wineries annually. Several new commercial wineries are in development stages for southern, central and northeast Indiana. Some of these projects are now on hold given the negative consequences of the pending legislation.

    For background, here are some earlier ILB entries on the Indiana wine shipping issue:
    Wineries sue over in-state shipments in Indiana, related matters -- 10/17/05

    Temporary order OKs in-state shipping -- 11/29/05

    New Michigan law permits vintners inside and outside the state to ship their products directly to consumers -- 12/16/05

    Small wineries in Illinois buffeted by the alcohol-distribution lobby; What is happening in Indiana? -- 1/11/06

    More on: Small wineries in Illinois buffeted by the alcohol-distribution lobby; What is happening in Indiana? -- 1/19/06

    Wine "shipping" bill passes House: An example of "Be careful what you wish for"? -- 2/2/06

    More on: Wine shipping bill passes House: An example of "Be careful what you wish for"? --2/8/06

    Wine shipping bill to be heard Wednesday in Senate committee -- 2/12/06

    Will state wineries die on the vine? -- 2/14/06

    Indiana wineries' troubles continue -- 2/22/06

    Wineries bill amended in committee -- 2/23/06

    Wine shipping committee report now available -- 2/23/06

    Garton kills wine bill compromise, says let court decide -- 2/24/06

    More on: Garton kills wine bill compromise, says let court decide -- 2/23/06

    Richmond Pal-Item's Excellent Editorial: Garton's decision hurts state wineries -- 2/28/06

    More on wine shipping bill -- 3/6/06

    Posted by Marcia Oddi on Monday, March 06, 2006
    Posted to Indiana Law

    Law - More on the Texas redistricting cases before the Supreme Court

    The oral arguments in the Texas redistricting cases were last Wednesday, March 1, as the ILB reported in this ILB entry last week. As to how they went, the answer, for those looking for some curb on political redistricting, is not good. This lengthy article by Stuart Taylor Jr. today in National Journal offers little encouragement. Some quotes:

    A dispiriting reality sank in as the Supreme Court worked through two hours of arguments on March 1 about the egregious gerrymander that Tom DeLay helped ram through the Texas Legislature in 2003: The Court has no intention of fixing -- and no idea how to fix -- the mess that it has made of our politics (with ample help from politicians) over more than four decades. And nobody else seems to have a good idea, either.

    This mess is not just in Texas. Nor will it be ameliorated by whatever the Court does in the Texas case. Not even in the highly unlikely event of a decision to strike down the congressional redistricting map that knocked off five Democratic incumbents in 2004, while delivering 21 of Texas's 32 House seats to Republicans, up from 15 in 2002.

    The mess to which I refer is state legislatures' use of gerrymandering -- manipulating election district lines to help or hurt a particular candidate or group -- to make 80 to 90 percent of the nation's 435 House districts so lopsidedly Republican or Democratic that the out party has almost no chance of winning.

    The paucity of competitive general elections for House seats, bad enough in itself, has also helped polarize our politics into the bitter liberal-conservative brawling that litters the landscape today. Primaries, dominated by the most fervently partisan voters, are the only real contests. So victory goes to the most liberal of Democrats and the most conservative of Republicans. Moderates, who used to grease the wheels of conciliation and compromise, have almost disappeared.

    The polarization that has poisoned the House has also infected the Senate to a lesser extent. Senators run statewide. But many climbed the ladder by being liberal or conservative enough to win in gerrymandered House or state legislative districts.

    There will never be a better opportunity than the Texas case for the Supreme Court to do something about this. This is not because of the much-publicized hijinks and other particulars of the DeLay-driven decision to draw new districts to defeat incumbent Democrats. It is because the case raises all of the big questions that bear on redistricting, and because it will be the first opportunity for Chief Justice John Roberts and Justice Samuel Alito to address them.

    Posted by Marcia Oddi on Monday, March 06, 2006
    Posted to General Law Related

    Ind. Courts - Commission on Judicial Qualifications filed judicial disciplinary charges today against Israel Nunez Cruz, Commissioner for the Marion Superior Court

    Via a press release today from the Indiana Courts:

    The Indiana Commission on Judicial Qualifications filed judicial disciplinary charges today against Israel Nunez Cruz, Commissioner for the Marion Superior Court.

    The Commission's attorney, Meg Babcock, announced that the charges allege Commissioner Cruz operated his vehicle while intoxicated on June 26, 2005. Commissioner Cruz was arrested and charged, but the Hendricks County Prosecutor later elected to dismiss the criminal case.

    Nonetheless, the Commission alleges that Commissioner Cruz violated judicial rules of ethics which hold judges to high standards of conduct and require them to preserve the integrity of the judiciary, to respect and comply with the law, and to act at all times in a manner which promotes the public's confidence in the integrity of the judiciary.

    Commissioner Cruz may file an answer to the charges within 20 days. The Supreme Court then will appoint a panel of three judges to preside over an evidentiary hearing and report their findings to the Supreme Court.

    Posted by Marcia Oddi on Monday, March 06, 2006
    Posted to Indiana Courts

    Courts - The influence of court clerks

    Charles Lane of the Washington Post has an article today headed "The Varying Influence of Clerks" that discusses a new book on the topic. Some quotes:

    Much has nevertheless been written on the behind-the-scenes power of these strong-minded but inexperienced aides, most memorably in Bob Woodward and Scott Armstrong's 1979 book, "The Brethren," and in "Closed Chambers," published in 1998 by former clerk Edward Lazarus.

    Now two political scientists have produced their take on the topic, provocatively titled "Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court." The book's authors, Artemus Ward and David L. Weiden, argue that the clerks have more power than they used to have, and probably more power than they should.

    The "institution of the law clerk has been transformed into a permanent bureaucracy of influential legal decision makers, scarcely resembling its original incarnation," they write. "Today, voting and editing largely defines the role of a Supreme Court justice. Clerks are now responsible for the raw material that goes into the Court's opinions."

    Posted by Marcia Oddi on Monday, March 06, 2006
    Posted to Courts in general

    Courts - More on: Thousands of federal cases kept secret

    Following up on this ILB entry yesterday is this lengthy story today in Legal Times headed: "D.C.'s Secret Docket: There were 460 criminal cases filed last year. To the public, 111 of them don't exist."

    The story reports that a study conducted by Reporters Committee for Freedom of the Press, "to be published this week, reveals that during the past five years 18 percent of nearly 3,000 criminal cases in the D.C. federal court were not docketed. The number of undocketed civil cases during that period was significantly less — 65 out of more than 12,000."

    Here is the fascinating report, titled "Disappearing dockets, When public dockets have holes, the public’s right to open judicial proceedings is jeopardized," from The News Media and the Law.

    Posted by Marcia Oddi on Monday, March 06, 2006
    Posted to Courts in general

    Law - Will doctors and lawyers be next?

    NPR's Morning Edition had a story last Friday, March 3rd, about how "the Internet is putting pressure on the fees that [real estate] agents have become accustomed to." It speculated whether real estate agents would soon go the way of travel agents. And stock brokers. Access it here.

    Sunday's NY Times Magazine has a related story, titled "Endangered Species."

    My take. All three of these professions -- real estate, travel, and stock sales -- have prospered on the basis of specialized knowledge and access - to the multiple listing database, the airline reservation systems, the stock market.

    Similarly, much of the specialized knowledge available to doctors and lawyers is now widely available to all: patients go to their doctors with reams of printouts about their conditions; citizens perform their own divorces, prepare their own contracts, write their own wills.

    A few hundred years ago, religion changed with the printing press -- citizens gained access to "the word" and some sought to interpret it for themselves. The Internet is similarly opening up specialized repositories of knowledge and changing many trades and professions forever.

    Posted by Marcia Oddi on Monday, March 06, 2006
    Posted to General Law Related

    Ind. Law - More on wine shipping bill

    Lesley Stedman Weidenbener of the Louisville Courier Journal has a story today headlined "Next 9 days will make or break session: Major legislation hangs in balance." Among the issues listed as still unresolved, this caught my eye:

    Wine shipment: A bill that would have allowed wineries to ship limited numbers of bottles to customers in Indiana suffered the same fate in the Senate last month as the hunting preserves bill.

    Garton shelved it after learning lawsuits had been filed following the Indiana Alcohol and Tobacco Commission decision to stop all direct shipments last year, saying that nothing in state law actually permitted them.

    Last week, Garton said that the plaintiffs in the suits would have to drop the cases before he'd allow a vote on the bill. But members of the House hope they can change his mind and are working on other options.

    Interesting. In the Marion County lawsuit, if the ILB understands it correctly, the judge enjoined the State of Indiana's imposition of a ban on wine shipping within the State until the end of the legislative session -- to await possible legislative resolution of the situation.

    Posted by Marcia Oddi on Monday, March 06, 2006
    Posted to Indiana Law

    Sunday, March 05, 2006

    Courts - More on: Kentucky Judge Resigns Amid Accusations He Profited From Fen-Phen Case

    [First, note that the ILB has a new category, "Courts in General", so that everything about courts and judges nationwide not longer will have to be filed under the "Indiana Courts" category. I intend at some point to go back and recategorize past stories that should be moved to the "Courts in General" category.]

    Today the Cincinnati Enquirer's Jim Hannah is reporting:

    Experts on judicial ethics say misdeeds such as those spawning the public reprimand last week of Circuit Judge Joseph "Jay" Bamberger of Florence undermine the public's trust of the judiciary.

    Trial judges are the face of the justice system for most Americans, said Stephen Gillers, a law professor and ethics expert at New York University.

    "If trial judges engaged in conduct that is questionable, it undermines the confidence of the public in judges generally," Gillers said. "If you are a litigant in the case and you remember such incidents, your respect in the court is likely to be thrown into some uncertainty, especially if it happens in your own county."

    Bamberger resigned last week to avoid being removed by Kentucky's Judicial Conduct Commission for alleged misconduct in a $200 million fen-phen settlement for defective diet pills.

    The 63-year-old Bamberger was the only circuit judge in Boone and Gallatin counties for more than a decade.

    Kentucky's Judicial Conduct Commission said Bamberger's actions "shocked the conscience" of its members. The commission fields complaints against the state's judges. Its investigations are conducted in secret and released only after a judge has been given the opportunity to respond.

    For earlier stories, see this ILB entry from March 1st.

    Posted by Marcia Oddi on Sunday, March 05, 2006
    Posted to Courts in general

    Ind. Gov't. - Two stories today on lobby reform in the Indiana General Assembly

    "Bosma mum on lobby-reform plans" is the headline to this story today by Lesley Stedman Weidenbener in the Louisville Courier Journal. Some quotes:

    Even before the Indiana General Assembly finishes its work for this year, House Speaker Brian Bosma, R-Indianapolis, is already looking ahead to the 2007 session.

    Bosma has decided not to act this year to end lobbyist-funded out-of-state trips for lawmakers, something the Senate abruptly eliminated earlier this year.

    Instead, Bosma said on Friday that he will wait until next year and tackle not just the issue of trips but of lobby reform in general.

    In fact, the speaker said he'll work with fellow leaders on proposals about lobby activities, financial disclosures and even campaign finance reform.

    He wouldn't give up any details last week. * * * But he was willing to drop just this one hint. "Some of our disclosure rules are well intended but not very effective," he said.

    Steve Walsh reports today in the Gary Post-Tribune, in a story headlined "House travels own path on perks." Some quotes:
    Indiana House members will leave their travel plans wide open this summer as the House speaker opted not to ban lobbyist-paid junkets this session.

    Earlier in the session, the Senate voted to change its ethics rules and ban senators from taking trips funded by lobbyists. Senate President Pro Tem Robert Garton said it was in reaction to the wave of ethical reform and soul searching, after the indictment of high-priced lobbyist Jack Abramoff for his lobbying in the U.S. Congress.

    After mulling the issue for more than a week, Speaker of the House Brian Bosma said Friday that the House will not follow the Senate and ban trips paid for by lobbyists.

    “Rather than do a knee-jerk, two-liner change to our ethics rules, perhaps it’s time to take a broader look took at ethics rules and laws that govern lawmakers in the state of Indiana,” Bosma said.

    The speaker did not commit to any specific changes or even commit directly to studying the reform over the summer. Bosma instead hinted at the need for better disclosure of lobby expenses.

    “Some of our disclosure laws are well-intended but perhaps not very effective. We’re going to look at a whole variety of things,” Bosma said. Indiana’s lobby laws are based mainly on disclosure.

    Unlike Congress, the General Assembly does not limit the amount of gifts or free meals that lawmakers or their staffers can accept from lobbyists. While the executive branch reports to the state Ethics Commission, lawmakers are subject to the rules put in place by their chambers through their ethics committees. Lobbyists must then disclose the amount they spend to influence legislation with the Indiana Lobby Registration Commission, which keeps records on file and places copies on the Internet.

    The records are often difficult to read. The commission did not have a list of how much lobbyists spent on each lawmaker, including who traveled out of state.

    Compiling a list requires a painstaking search of hundreds of individual reports from registered lobbyists. * * *

    The Senate ban followed an ethical arms race that broke out during the 2006 session, after the House ended its participation in a plan that gave lawmakers low-cost health insurance for life, after only six years in the General Assembly. The Senate tweaked its plan but kept the benefit and a day later, unveiled the travel ban.

    The travel ban may have been the high-water mark. Though Senate trips are banned, Senate Ethics Committee Chairman Joe Zakas has already been polling members of his committee to see how far the restrictions will go. The weekend after the ban took place, he asked members if travel expenses should include meals, hotel rooms, golf greens fees, or only the cost of traveling, such as flights.

    “I don’t think eating a meal is travel,” he said. It will take time for the new restrictions to be defined, he said. “Every year we meet and talk about a variety of things. We’ll have to see how the committee looks at this,” he said.

    Note: This long story contains much important detail - be sure to read it today, as the Gary Post-Tribune does not archive its stories.

    Posted by Marcia Oddi on Sunday, March 05, 2006
    Posted to Indiana Government | Legislative Benefits

    Law - Kentucky lawmaker would make legislators' communications private

    A story yesterday in the Louisville Courier Journal reported:

    FRANKFORT, Ky. -- All e-mails, telephone records and correspondence to and from lawmakers would no longer be public records under a bill filed Monday by state Rep. Rob Wilkey, D-Scottsville.

    Wilkey said yesterday that House Bill 699 is designed to ensure the privacy of constituents, who sometimes write or call seeking help with personal situations, such as an illness or legal problem.

    "It's so we can have open and frank communications with our constituents," he said.

    But the Kentucky Press Association is working to defeat the bill, saying it would prevent the public from knowing how lawmakers conduct public business.

    Communications such as those Wilkey described -- from private individuals detailing personal information -- already are exempt from disclosure under the state open-records law, said Jon Fleischaker, a lawyer for the press association who represents The Courier-Journal.

    Lawmakers must disclose only business communications from people such as government officials, other lawmakers or someone representing a corporation or organization, he said.

    "I think it's just another effort at secrecy," Fleischaker said. "E-mails and voice mails are often the only source of information today."

    Posted by Marcia Oddi on Sunday, March 05, 2006
    Posted to General Law Related

    Ind. Courts - Jefferson Superior Court Judge Fred Hoying featured

    The Madison Couirer had a story yesterday by Wayne Engle about Jefferson Superior Court Judge Fred Hoying. It begins:

    Fred Hoying grew up as a farm boy and still lives in the country. He’s a lawyer with an inquiring mind, a philosophical bent and a penchant for teasing the people he likes.

    All those qualities have probably helped him thrive through one of the longest tenures as a judge in one court in Indiana history.

    Hoying, who will turn 60 on May 6, marked 30 years as a judge in Jefferson County on Jan. 5. For the first 16 years he was Jefferson County Court judge, until his court’s status was upgraded to Superior Court by the Indiana legislature in 1992.

    Friends, fellow courthouse regulars, the lawyers who appear in his court and others flocked to Hoying’s office on his anniversary for cake, coffee and reminiscences about his three decades on the bench. An old Madison Courier photo taken at his first court session was displayed prominently. It showed a young, long-haired Hoying holding the gavel, and it drew many jocular comments and ribbing of His Honor, who proved that he can take it as well as dish it out.

    Posted by Marcia Oddi on Sunday, March 05, 2006
    Posted to Indiana Courts

    Courts - Thousands of federal cases kept secret

    "Thousands of federal cases kept secret" is the headline to an AP story published today in the Fort Wayne News-Sentinel. Some quotes:

    WASHINGTON - Despite the Sixth Amendment's guarantee of public trials, nearly all records are being kept secret for more than 5,000 defendants who completed their journey through the federal courts over the last three years. Instances of such secrecy more than doubled from 2003 to 2005.

    An Associated Press investigation found, and court observers agree, that most of these defendants are cooperating government witnesses, but the secrecy surrounding their records prevents the public from knowing details of their plea bargains with the government.

    Most of these defendants are involved in drug gangs, though lately a very small number come from terrorism cases. Some of these cooperating witnesses are among the most unsavory characters in America's courts - multiple murderers and drug dealers - but the public cannot learn whether their testimony against confederates won them drastically reduced prison sentences or even freedom. * * *

    At the request of the AP, the Administrative Office of U.S. Courts conducted its first tally of secrecy in federal criminal cases. The nationwide data it provided the AP showed 5,116 defendants whose cases were completed in 2003, 2004 and 2005, but the bulk of their records remain secret.

    "The constitutional presumption is for openness in the courts, but we have to ask whether we are really honoring that," said Laurie Levenson, a former federal prosecutor and now law professor at Loyola Law School in Los Angeles. "What are the reasons for so many cases remaining under seal?"

    "What makes the American criminal justice system different from so many others in the world is our willingness to cast some sunshine on the process, but if you can't see it, you can't really criticize it," Levenson said.

    The courts' administrative office and the Justice Department declined to comment on the numbers.

    The data show a sharp increase in secret case files over time as the Bush administration's well-documented reliance on secrecy in the executive branch has crept into the federal courts through the war on drugs, anti-terrorism efforts and other criminal matters.

    "This follows the pattern of this administration," said John Wesley Hall, an Arkansas defense attorney and second vice president of the National Association of Criminal Defense Lawyers. "I am astonished and shocked that this many criminal proceedings in federal court escape public scrutiny or become buried."

    The percentage of defendants who have reached verdicts and been sentenced but still have most of their records sealed has more than doubled in the last three years, the court office's tally shows.

    Posted by Marcia Oddi on Sunday, March 05, 2006
    Posted to Courts in general

    Ind. Courts - Lake County Small Claims Magistrate Kathleen Belzeski cases featured

    The Munster (NW Indiana) Times today has a story by RuthAnn Robinson titled "'People's Court,' the hometown version." Some quotes:

    Fans of "People's Court" can experience the action live and right in their own backyards.

    The same things that make TV court shows so popular -- real people with real problems getting their day in court in front of an interactive, sometimes-kind, sometimes-stern judge -- are found in spades in local small claims courts.

    Before "Judge Judy" became so popular that people started begging to be on the show, court shows routinely scavenged the most interesting cases from our local courts, Lake County Small Claims Magistrate Kathleen Belzeski said. * * *

    One of Belzeski's most memorable cases involved a wedding dress. The woman paid for a custom dress, and when it arrived it had a tag in it with the size -- clearly an off-the-rack dress. The woman got her money back, Belzeski said.

    Issues surrounding the joining and separating of people's lives seem to loom large in Lake County Small Claims Court lore.

    Another memorable case involved an engaged couple, Belzeski said. The fiancee broke off the engagement. The spurned fiance wanted the ring back.

    "It turned out she had no problem giving back the ring; she just wanted to do it in front of witnesses," Belzeski said.

    The woman said she also had other possessions of her former betrothed in her car. She requested bailiffs accompany them so she could return those as well.

    They were happy to oblige. Everything just seems a bit more casual and friendly in small claims land.

    Posted by Marcia Oddi on Sunday, March 05, 2006
    Posted to Indiana Courts

    Ind. Gov't. - Lake Station: Is attorney waste of taxpayer dollars?

    "Is attorney waste of taxpayer dollars?" is the headline to this story today in the Munster (NW Indiana) Times, by Royal M. Hopper III. Some quotes:

    The Lake Station City Council put a request to provide a lawyer for the clerk-treasurer on hold recently.

    "I am accountable to the State Board of Accounts and there is a lot of money (coming through the clerk-treasurer's office) that must be put in the right places and taken out of the right places or you can get in serious trouble," said Lake Station Clerk-Treasurer Martha Kroledge about her request for an additional $12,000 to her budget for legal fees.

    The measure was tabled after a vigorous debate. * * *

    City Attorney Ray Szarmach said city ordinances clearly state that the clerk-treasurer shall have an attorney.

    Posted by Marcia Oddi on Sunday, March 05, 2006
    Posted to Indiana Government

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

    An item in the Indianapolis Star's Sunday column, Behind Closed Doors:

    Prayer might get expensive. House Republicans said they would vigorously defend a lawsuit filed by the American Civil Liberties Union of Indiana that led to a federal court's decision to ban official prayers containing the name Jesus.

    Vigorously now means it's time to hire help from an 875-attorney firm.

    House Republicans, under Speaker Brian C. Bosma's leadership, had pledged that their defense of the lawsuit wouldn't cost taxpayers because they are using lawyers from the attorney general's office.

    But four attorneys from the firm Winston & Strawn, which has offices in Washington and Chicago, have filed appearances, according to the federal docket.

    Steffen N. Johnson
    is a noted attorney on religious and First Amendment issues, and House Republicans' Chief of Staff Leslie Hiner said they needed that kind of expertise.

    The goal, she said, is to find a way so taxpayers won't foot the bill. A contract hasn't been signed, so she doesn't know yet how much the attorneys will cost.

    Maybe the House should send around a collection plate at the end of business.

    Winston & Strawn has offices in Chicago, Geneva, London, Los Angeles, New York, Paris, San Francisco, and Washington, DC. None in Indiana.

    For background on the case, start with this ILB entry from Jan. 29. 2006.

    Posted by Marcia Oddi on Sunday, March 05, 2006
    Posted to Ind Fed D.Ct. Decisions

    Saturday, March 04, 2006

    Ind. Decisions - More on Indiana prison policy on sex-offender visitation

    Recall that on November 10, 2005, the Indiana Supreme Court heard oral arguments in the case of Jane Doe v. J. David Donahue. An AP story at the time (quoted in this ILB entry from 11/10/05) began:

    A state prison policy violates Indiana law and the U.S. Constitution by prohibiting virtually all visitation between minors and child sex offenders, the Indiana Civil Liberties Union told the state Supreme Court yesterday.
    On Nov. 21, 2005, as recorded in this ILB entry, the Supreme Court issued an opinion vacating its prior grant of transfer as "improvidently granted" and reinstating the Court of Appeals opinion. See also this ILB entry from Nov. 22, 2005.

    What happened next? As a reader noted to me yesterday, the Indiana ACLU appealed the case to the U. S. Supreme Court.

    Here, via the Indiana ACLU website, is the 71-page Petition for a Writ of Certiorari filed with the U.S. Supreme Court. The case is now styled "Richard Roe v. Donahue," for reasons explained on p. 3 of the brief.

    The U.S. Supreme Court docket number for the case is 05-1030. As the Court's docket shows, the ACLU petition was filed Feb. 10, 2006 and the Response is due March 17, 2006. (See U.S. Supreme Court Rule 15 for procedure.)

    Posted by Marcia Oddi on Saturday, March 04, 2006
    Posted to Indiana Decisions

    Ind. Law - Linton mayor doesn't have to release results to city council

    The Linton Daily World reported yesterday, in a story by Halea Franklin:

    A battle over drug tests results in the city of Linton seems to have been resolved.

    On Jan. 10, city employees were given drug tests. Linton City Councilman Kelly Foglesong has requested the test results; however, Linton Mayor Tom Jones has denied him the records.

    At the February meeting of the Linton City Council, Foglesong publicly requested the information. Jones denied him access to the information and said the information was part of employee's personnel files.

    “I think we have a responsibility to our employees to maintain those files and keep their integrity,” Jones said in February.

    On Thursday, Karen Davis, the Indiana Public Access Counselor responded for a formal complaint, filed by Foglesong, that the city violated the Access to Public Records Act (APRA) by denying access to a list of results.

    “It is my opinion that the city may withhold the drug test results of individual employees. The drug test results are part of the employees' personnel file,” Davis wrote in her response. “In addition, drug test results are not among the types of information from an employee's personnel file that must be disclosed. Therefore, it is not a violation of the APRA for the city to deny you (Foglesong) these records. In addition, under the APRA the city was not required to compile a list of test results at your request.” * * *

    “We're not trying to hide anything. We're just following the law of the State of Indiana,” Jones said, noting the test results are confidential.

    Foglesong also said he feels there's a trust issue involved. “Trust is like virginity, once it's gone, it's gone,” Foglesong said.

    Jones said there is a trust issue involved - one between the employee and employer. “It's also following state code,” Jones said.

    Foglesong said his phone has rung off the wall by those in support of him seeing the results. “I've yet to speak with anyone who's against letting them loose,” Foglesong said.

    Jones said Foglesong is the only person who's asked him to see the results.

    Here is a copy of the PAC opinion, dated March 1, 2006.

    Posted by Marcia Oddi on Saturday, March 04, 2006
    Posted to Indiana Law

    Environment - More on: "Dairy CAFO wins case against BZA"

    "Blackford board wrong to deny dairy farm hearing" is the headline to this AP story today in the Fort Wayne Journal Gazette. Some quotes:

    HARTFORD CITY – Zoning officials broke the law when they denied a public hearing for a couple who want to start a 2,000-cow dairy farm in eastern Indiana, a judge ruled Thursday.

    Special Judge Marianne Vorhees ordered the Blackford County Board of Zoning Appeals to schedule a new hearing on Gerwin and Marinke Oolman’s application for a special zoning exception to build a concentrated animal feeding operation about 20 miles north of Muncie.

    “The BZA’s refusal to allow Oolman (Dairy) a public hearing on its second application and its failure to vote on either application has denied Oolman due process of law,” Vorhees wrote in her ruling.

    “The court further finds the BZA’s refusal to hear evidence and to vote on the second application was arbitrary and capricious,” she added, and ordered the board to either approve or deny the Oolmans’ request.

    Indiana law requires that a zoning appeals board must approve or deny all special exceptions, according to the lawsuit filed in Blackford Circuit Court by Federoff Law Firm of Fort Wayne.

    See also yesterday's ILB entry.

    Posted by Marcia Oddi on Saturday, March 04, 2006
    Posted to Environment | Ind. Trial Ct. Decisions | Indiana Government

    Friday, March 03, 2006

    Ind. Decisions - List of Court of Appeals NFP opinions issued for week ending March 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 March 3, 2006. There are 41 Court of Appeals cases listed this week, including one corrected opinion.

    Posted by Marcia Oddi on Friday, March 03, 2006
    Posted to NFP Lists

    Courts - More on Unfinished or Lost Transcripts

    On Nov. 25, 2005 the ILB had an entry titled "Unfinished Transcripts May Nullify Convictions in Colorado," quoting from an LA Times story about "an Achilles' heel of the criminal justice system — its reliance on fallible humans to create a permanent record of legal proceedings." The story included some examples:

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

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

    Yesterday the Supreme Court of Florida decided a case, Jones v. State of Florida, involving a computer crash that erased part of a trial transcript, ruling, according to this AP story, that the loss was "insufficient reason to order a new trial in a criminal case, [according to] a sharply divided Florida Supreme."

    The dissent in the 19-page, 4-3 opinion is written by the Chief Justice and begins on page 9:

    I dissent. In my view, Jones has been deprived of his right to meaningful appellate review because of the lack of a complete record through no fault of his own. It is conceded that the court reporter was unable to transcribe the jury selection proceedings because the hard drive on her computer “crashed” and she was unable to read her written notes.

    The issue in this case pits the defendant’s constitutional right to meaningful appellate review against the defendant’s burden to demonstrate reversible error. A defendant who has potential grounds for reversal of a criminal conviction should not be penalized when the record of the trial court proceedings is lost in whole or part because of circumstances beyond his or her control. Yet this is the effect of the majority’s requirement that the defendant demonstrate a basis for a claim of prejudicial error. The majority’s requirement imposes an almost insurmountable burden on the defendant to demonstrate that a reversible error occurred during jury selection proceedings that cannot be reconstructed because of a missing record. This creates too great a danger that convictions will be upheld in cases in which reversible errors have occurred.

    Posted by Marcia Oddi on Friday, March 03, 2006
    Posted to Courts in general

    Ind. Decisions - Transfer list for week ending March 3, 2006

    Here is the Indiana Supreme Court's transfer list for the week ending March 3, 2006.

    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, March 03, 2006
    Posted to Indiana Transfer Lists

    Ind. Decisions - 7th Circuit decisions today include one from Indiana

    In Norfleet v. Gehrke (SD Ind., David F. Hamilton, Judge), Judge Kanne writes:

    Armond Norfleet suffers from arthritis. While incarcerated in a federal prison at Milan, Michigan (“Milan”), Norfleet was given certain medical treatments for his arthritis, including Naprosyn and softsoled shoes for his aching feet. On May 22, 2002, he was transferred to the federal prison at Terre Haute, Indiana (“Terre Haute”), where the medical authorities were not as sympathetic to his joint problems. A doctor at Terre Haute concluded the soft-soled shoes and other treatments were unnecessary, and pursuant to prison policy the drugs Norfleet had been taking for his pain were curtailed. Norfleet sued, naming five prison officials, claiming that they had been deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The district court granted summary judgment to three of the defendants, but denied it as to Dr. Thomas Webster, Clinical Director at Terre Haute in charge of the medical care and treatment of all inmates, and physician assistant Alejandro Hadded, whose duties included scheduling appointments for inmates to receive their prescribed drugs. Before us is the government’s appeal of that denial. Seeing things differently than the district court, and agreeing with the government, we reverse.

    Posted by Marcia Oddi on Friday, March 03, 2006
    Posted to Indiana Decisions

    Environment - "Dairy CAFO wins case against BZA"

    "Dairy CAFO wins case against BZA" is the headline to a story by Seth Slabuagh in today's Muncie Star-Press. Some quotes:

    HARTFORD CITY -- The Blackford County Board of Zoning Appeals illegally and unreasonably denied a public hearing to a proposed Dutch dairy CAFO (concentrated animal feeding operation), a judge ruled Thursday.

    "The BZA's refusal to allow Oolman (Dairy) a public hearing on its second application and its failure to vote on either application has denied Oolman due process of law," ruled Special Judge Marianne Vorhees of Delaware Circuit Court 1. "The court further finds the BZA's refusal to hear evidence and to vote on the second application was arbitrary and capricious."

    Vorhees ordered the BZA to schedule a new public hearing and to either approve or deny the application.

    Gerwin and Marinke Oolman, formerly of The Netherlands, applied for a special exception to build a 2,000-cow dairy CAFO northeast of Hartford City.

    Several hundred people oppose it, asserting the industrial-style operation will stink, pollute, make noise, attract rodents, employ low-paid immigrants, lower surrounding property values and impair their quality of life.

    Consultants to the Oolmans have said the $13.5 million project would generate sales of at least $6 million a year and support veterinarians, milk processing plants, milk hauling, agricultural lenders, heifer and calf raising, and careers in dairy management. In addition, local farmers would supply more than 2,000 acres of feed and forage for the Oolmans.

    The BZA did conduct a public hearing on May 24 on the Oolmans' first special exception application. The BZA was scheduled to vote on the matter at a June 7 meeting during which the Oolmans withdrew the application.

    They did so after learning from BZA attorney Dean Young that he was going to advise BZA members to deny the application. The Oolmans had neglected to provide evidence during the hearing in May that they could meet noise, odor, air pollution, water pollution and various other local standards, Young determined.

    The Oolmans then filed a second application, which the BZA voted not to hear at an Aug. 23 meeting attended by 200 or so opponents.

    "There was a full and fair hearing" in May, Young advised the board in August. It was his opinion that the Oolmans should not be allowed to present new evidence. "Where does it end?" he asked.

    But Vorhees ruled that Indiana law required a public hearing on all applications for special exceptions and also required the BZA to either approve or deny such applications.

    The BZA allowed the Oolmans to withdraw their first application without placing any conditions on the withdrawal, Vorhees found.

    The judge said the BZA could have refused to allow the Oolmans to withdraw the first application and voted to deny or approve it.

    Vorhees explained why the refusal to grant the Oolmans a second public hearing was arbitrary and capricious. The BZA claimed it would be unfair to the remonstrators and unduly burdensome to the BZA to conduct the second hearing. The judge found no basis for that argument.

    "The record in this case reflects that the BZA set the second application for hearing, advertised and gave notice as required, and the remonstrators and Oolman representatives appeared for a public hearing on that evening," the judge wrote. "The BZA members were also present."

    For background, see this ILB entry from Aug. 25, 2005. See also this entry from Sept. 20th, 2005, quoting a StarPress story that begins: "Blackford County commissioners felt threatened by the state's director of agriculture after the county rejected a proposed dairy CAFO (concentrated animal feeding operation)."

    Posted by Marcia Oddi on Friday, March 03, 2006
    Posted to Environment | Ind. Trial Ct. Decisions | Indiana Government

    Ind. Decisions - Court of Appeals issues one today - an opinion on rehearing

    In Mid-American Fire & Casualty Co. v. Shoney's Inc., et al, Judge Bailey writes:

    Shoney’s Inc. and SHN Properties (collectively, “Appellees”) petition for rehearing on Mid-American v. Shoney’s, No. 49A02-0503-CV-235, slip. op. at 16-17 (Ind. Ct. App. Oct. 5, 2005). In that opinion, we held that the Homeowner’s Policy at issue did not cover the remediation costs for a petroleum contamination that occurred on property located at 5010 South East Street in Indianapolis, Indiana. In reaching this conclusion, we incorrectly applied the standard policy exclusions, as opposed to those listed in the policy enhancement, to Appellees’ claim for personal injury coverage and, thus, we did not address the “business pursuits” exceptions to coverage. However, because we determine that Appellees’ claim to liability coverage for remediation costs are excluded from both the standard policy—with respect to the property damage coverage claim—and the policy enhancements—with regard to the personal injury coverage claim—we find our initial analysis to be of no consequence to our ultimate holding in the case. As such, we grant rehearing, vacate our original opinion, but nevertheless reverse the trial court’s partial grant of summary judgment to Appellees and remand for an entry of partial summary judgment in favor of Mid-American. * * *

    As for his livelihood, Hedrick often made more money from his business investments than he did as a college professor. Therefore, it is apparent that Hedrick’s purpose in “dabbling” in real estate was to earn an additional livelihood through a commercial activity. As such, Hedrick’s ownership of the Property in question constituted a business pursuit and Appellees’ claim for remediation costs is excluded from the Homeowner’s Policy in question.

    The petition for rehearing is granted. We affirm our holding in the original opinion but for different reasons, as clarified in this opinion on rehearing.

    SHARPNACK, J., and DARDEN, J., concur.

    Posted by Marcia Oddi on Friday, March 03, 2006
    Posted to Ind. App.Ct. Decisions

    Ind. Courts - ACLU sues Indiana scholarship program

    "ACLU sues Indiana scholarship program" is the headline to a story today by Rebecca Neal in the Indianapolis Star. Some quotes:

    The ACLU of Indiana filed a lawsuit Thursday against a popular Indiana scholarship program, claiming it rejects children whose parents are not U.S. citizens or legal residents.

    The American Civil Liberties Union of Indiana contends the 21st Century Scholars program is unconstitutional because its eligibility requirements exclude American-born students based on the status of their parents.

    The eligibility requirements violate federal immigration law and the U.S. Constitution's equal protection clause, turning the students into "second-class citizens," said Ken Falk, the ACLU of Indiana's legal director. "People are being discriminated against who are U.S. citizens," he said Thursday night.

    Dennis Obergfell, acting executive director of the State Student Assistance Commission of Indiana, which administers the program, declined to comment Thursday. * * *

    Falk is requesting class-action status for the suit because he said he has estimated that 10,000 American-born, lower-income students in Indiana have parents who are not citizens or legal residents, keeping them from being eligible for the scholarship funds. He said he had heard of students who could not attend college because of the restrictions.

    An AP story by Rick Callahan appears in several regional papers, including the Fort Wayne Journal Gazette.

    Here is the ACLU of Indiana's legal docket page. The 21st Century Scholars' case is not yet listed, but may be shortly.

    Posted by Marcia Oddi on Friday, March 03, 2006
    Posted to Indiana Courts

    Thursday, March 02, 2006

    Ind. Law - U.S. Supreme Court's decision not to hear Hosty v. Carter impacts Indiana colleges

    The Fort Wayne Journal Gazette had an editorial yesterday titled "Stifling student press." Some quotes:

    The [U.S. Supreme Court] last week rejected a request from students at Governors State University to hear an appeal of Hosty v. Carter, a decision that limits First Amendment protections at public universities. The decision directly applies to only schools in Indiana, Illinois and Wisconsin, which fall under the jurisdiction of the 7th Circuit U.S. Court of Appeals, where it has the effect of subjecting university students to the same publication restraints as high school journalists. * * *

    In the Governors State case, the Chicago-area students challenged a university dean who demanded prior content approval after the newspaper published articles critical of the administration. The lower court ruled that the Hazelwood decision, a 1988 Supreme Court decision that limited protections for high school journalists, also extended to public college students.

    Merv Hendricks, director of student publications at Indiana State University in Terre Haute, said the Supreme Court’s decision was troubling for student journalists. “We are very concerned that there is potential for administrators to begin to exercise the authority that has been granted by virtue of this ruling,” he said. “I think we here in Indiana, Illinois and Wisconsin are especially concerned.”

    David Studinski, a 2003 Homestead High School graduate who is editor of the Daily News at Ball State University, also was disappointed by the court’s decision. “The university needs to let students be accountable,” he said. “If we are going to be baby-sat until we are 23 or 24, how will our potential employers ever know how responsible we are?” Studinski asked.

    Student journalists at a handful of universities, including the University of Southern Indiana in Evansville, have convinced administrators to declare their publications as “public forums,” where student editors would be afforded full editorial control.

    Studinski said student journalists at Ball State have discussed asking for designation of the newspaper as a public forum, but are satisfied now that the BSU president is respectful of student speech.

    The administration of Indiana University-Purdue University Fort Wayne currently exercises no editorial control over The Communicator, which receives no direct funding from the university. But a change of administration and the fact that the newspaper uses campus facilities could mean that circumstances might change, so student journalists there would be wise to seek the newspaper’s designation as a public forum.

    In the meantime, they have reason to be disappointed in the Supreme Court’s decision and grateful that the IPFW administration recognizes the importance of First Amendment protections and the right to learn by doing.

    For complete coverage of this issue, see the Hosty v. Carter Information Page at the Student Press Law Center. It includes a history of the case, what looks to be links to all the appellate filings, commentary, etc. The en banc 2005 7th Circuit opinion is here); the 7-4 opinion was written by Judge Easterbrook.

    Posted by Marcia Oddi on Thursday, March 02, 2006
    Posted to Ind. (7th Cir.) Decisions | Indiana Law

    Ind. Law - "Public records lawyers say Jill Behrman's death report illegally sealed "

    Fox 59 News is reporting this afternoon, in a story by Kimberly King headlined "Public records lawyers say Jill Behrman's death report illegally sealed:"

    While Indiana's law requires the coroner of a given county to release the cause of death after an autopsy, in Jill Behrman's case the report is sealed.

    "There's no question the autopsy report, the elements of the manner and cause of death are a manner of public record," said Indianapolis Attorney Dick Cardwell. Cardwell knows Indiana's public records law inside and out. He helped write it.

    Cardwell has reviewed Morgan County Superior Court Judge G. Thomas Gray's order to keep Behrman's cause of death report sealed. He says what the Judge and law enforcement authorities have done to seal the record is wrong. "When we wrote the open records law the first provision says that a court can't seal records from another branch of government that are brought to it for the purpose of sealing, period." * * *

    Detectives trying to seal a death record tried a similar tactic in the case of murdered Franklin College student Kelly Eckhart in 1997. Three newspapers sued to get her autopsy, and under pressure from the law, the coroner finally released the death report.

    Former Marion County prosecutor Scott Newman says detectives like to keep certain pieces of evidence a secret to verify the killer or witness is telling the truth. But Newman says police must have other details beside cause of death to prove a case.

    "There will always be lots of details around how she was killed that nobody could have known who wasn't there," said Newman. "The cause of death is one thing is certainly one piece of evidence that's important and if it's possible to leave that out of public domain, you try to do that for as long as you can you can't do it forever."

    The story reports that Fox 59 News first filed an open records request in 2003, and that Morgan County Superior Judge Gray sealed Behrman's death records December 9, 2003.

    Posted by Marcia Oddi on Thursday, March 02, 2006
    Posted to Indiana Law

    Ind. Law - Golf cart ordinance is an issue in Lebanon, and also other communities

    Rod Rose of the Lebanon Reporter writes today:

    A golf cart control ordinance skidded off the city council’s agenda Monday after running into daylight-saving time.

    The ordinance, up for final reading, would allow golf carts only on city streets during daylight hours, among other restrictions. After lengthy discussion, the council voted to table a vote until its 7:30 p.m. March 13 meeting.

    Last July, a “great influx of golf carts” flooded the city after someone rented dozens of them to residents. Police said reckless use of the carts led to “innumerable complaints” during the Fourth of July celebration.

    State law bans golf carts from streets, but City Attorney Larry Giddings interprets the law to mean golf carts are allowed on roads not maintained by the Indiana Department of Transportation. Police Chief Tom Garoffolo said he just wanted some guidance for his officers. * * *

    The committee that wrote the ordinance wanted to allow golf carts on some streets only between dawn and dusk. Councilman Steve Large said he’s heard from cart owners who want extended hours, so they can ride to and from golf courses. “I’ve not had one comment against golf carts,” Large said.

    The only comment she’s received, said Councilwoman Emmadell Sturgis, “was totally against golf carts on the streets at all.” Sturgis was a member of the committee that wrote the ordinance. “We thought dawn to dusk was specific enough,” Sturgis said. * * *

    Blake Wilson, the golf pro at Ulen Country Club, said the council should consider “month by month” hours. Wilson said the country club would like its members exempt from the golf cart ordinance, or “ ... to see the restrictions broadened a lot, at least for Ulen members,” he said.

    During the summer, some Ulen members who have driven to the course on a cart and finish a round in late afternoon or early evening stay to eat dinner, Wilson said. “It’s a business issue for us,” he said. “If they have to be home by 8 o’clock they might not come back to eat dinner,” he said.

    Several citizens lobbied for the right to drive cars after dark. Tim Cote, who is wheelchair-bound, said he uses a golf cart “to get places.” His cart has taillights, headlights, side lights and flashers, he said. “I can’t get a license; no way,” Cote said.

    Kathy Anderson said her husband, who is disabled, uses a golf cart to get around their neighborhood. “I don’t see any problem,” she said. “He’s not hurting anybody.” Her husband does have a driver’s license, she said.

    A quick search via Google turned up two stories from the Greencastle Banner Graphic. Unfortunately they are undated. They are both written by Jason Moon, assistant editor. The first reports:
    The subject of new ordinances came up at the Cloverdale Town Council's regular monthly meeting Tuesday. * * *

    The possible ordinance would curb activities such as skateboarding, playing basketball with movable goals and using golf carts on streets within the town limits, to a reasonable limit.

    [Cloverdale Town Marshal Charlie] Hallam told the council his department had received several calls about the use of golf carts on streets in the town. "We do have an increase of use in that," he told the board. "We want to emphasize it is a safety issue."

    But a handful of residents at Tuesday's meeting did not agree with Hallam's assessment. One resident in the crowd asked the council for permission to use a golf cart due to disabilities, pointing to the Fair Housing Act of 1988.

    Council President John Davis said he would have [town attorney Michael] Van Treese look into the act, and several council members agreed. "I think some common sense needs to be used in all of this," council member Dennis Padgett said.

    Another town resident, James Coy, said he also used a golf cart because of a disability. He told the board he approached Hallam to ask for use of the golf cart within the Stardust Hills addition, but there were no sidewalks for use.

    The council passed a 5-0 motion to have town attorney Michael Van Treese look into creating the ordinance.

    Here is a follow-up story, also undated:
    The subject of using golf carts appeared in front of the Cloverdale Town Council at its monthly meeting on Tuesday, and once again, the council tabled the issue.

    Several community members approached the town council in September, expressing a desire to use golf carts on streets within town boundaries, to a reasonable limit. Several of the community members told board members the carts were used by disabled people. * * *

    On Tuesday, council member Dennis Padgett told the other four members in attendance he had researched the subject, checking the Fair Housing Act and the Americans with Disabilities Act. "Some townships have ordinances, and some don't," Padgett told board members. "This is a very touchy subject."

    [Town attorney] Van Treese told council members an ordinance might not help the issue. "This is a subject of ongoing controversy, and not just here," he said.

    "In my personal opinion, I want to leave it alone," Padgett chimed in. "I say we use some common sense with this."

    But the issue of liability came up in regard to the use of golf carts on town streets.

    "My concern is the safety issue, as well as liability," board vice president Judy Whitaker said.

    Hallam told board members that the state statute clearly said the carts are not allowed on the road.

    However, Padgett told board members that the use of lawnmowers on streets would have to be watched, among other items. He again asked the council to leave the issue alone. But board president John Davis asked Padgett what his suggestion to Hallam would be if the use of the carts continued to be an issue.

    Padgett responded that if the carts started to create a nuisance, Hallam should give a ticket or even impound the cart.

    The topic of state statute reared its ugly head again, as Whitaker said the town could not supersede state regulation, pointing back to what Hallam had told board members earlier.

    Following an agreement to table the issue, several community members had the opportunity to express their opinions, hoping to receive an answer. But the board agreed to attempt to gather more information on the issue.

    Posted by Marcia Oddi on Thursday, March 02, 2006
    Posted to Indiana Law

    Ind. Courts - Four candidates vie for newly created Hamilton County Superior Court 6 judgeship

    The Noblesville Daily Times has a detailed article today by William Fouts about the:

    Four candidates from different legal backgrounds [who] are seeking election to the bench of the newly created Hamilton County Superior Court 6.

    Republicans Gail Bardach, Will Greenaway and Larry Sells are seeking their party's nomination in the May 2 primary election. The winner will face Democrat N. Frederick Eggeson in the general election in November.

    Posted by Marcia Oddi on Thursday, March 02, 2006
    Posted to Indiana Courts

    Ind. Courts - More on: Judge clears way for challenge to oral drug tests

    This Feb. 16th ILB entry quoted from a story in the Munster (NW Indiana) Times that began:

    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.
    On Monday, Feb. 27th, the NWI Times published this report by Bob Kasarda, titled "Loophole discovered in drug test cases." Some quotes:
    VALPARAISO | The jury still is out on the reliability of an oral drug test used by the county's adult probation department.

    But the debate has shed light on a loophole in the process that could allow some offenders to escape accusations of using illegal drugs.

    The loophole, which is in the process of being closed, was discovered in most versions of the rules for probation and home detention used by the county courts, Porter County Adult Probation Chief Neil Hannon said.

    The rules in question require participants to submit to a urine test for the purpose of detecting alcohol or illegal drug use, he said. A problem arises in that the probation department also uses a mouth swab for drug testing and yet that is not specified in the rules agreed to by offenders.

    Hannon said his department was in the process last week of modifying the rules to include more general language that will allow for all types of drug tests.

    Posted by Marcia Oddi on Thursday, March 02, 2006
    Posted to Indiana Courts

    Law - More on: Florida defense attorneys demand source code of breath analyzers

    On Dec. 17, 2005, the ILB had an entry titled "Florida defense attorneys demand source code of breath analyzers."

    Stories today (identified thanks to How Appealing)indcate that the matter has been resolved in Palm Beach County. However, that County wasn't even among those listed in the December reports about lawyers in Florida challenging breath tests unless the company producing the machines turned over the source code -- which the companies had refused to do.

    The Palm Beach Post reports here today:

    Prosecutors have fended off a strike by defense attorneys at 1,500 drunken-driving cases countywide, winning a significant court victory, they announced Wednesday.

    A panel of judges has ruled that DUI defense attorneys cannot have access to the software "source codes" that run the breath-testing machines.

    It's a defense challenge that's spreading around the state — tanking thousands of DUI cases in three other counties — but not here. * * *

    At issue is whether the manufacturer of the machine would be compelled to turn over to attorneys the computer codes that operate the machine. The panel of judges ruled no, that the private corporation was not subject to public records laws and therefore did not have to turn it over.

    But the defense attorney leading the charge said he is considering an appeal, as well as civil lawsuits to get the source code. Brian Gabriel says it violates a person's due-process rights not to be able to study the brain of the machine that declares them drunk.

    The machine, called the Intoxilyzer 5000, is used at the sheriff's office and police department testing facilities throughout the county. Suspected drunken drivers blow into it and get a reading of their blood-alcohol level.

    As DUI laws have gotten stricter, defense attorneys have regularly challenged the machine and the testing process. Last year Parker was forced to drop 170 DUI cases after defense attorneys successfully argued about "ring-around-the-rosy" maintenance on the machines at the sheriff's office.

    The South Florida Sun-Sentinel reports:
    "The microprocessor has been replaced on these instruments since they were initially approved, which in English means they replaced the brain of the computer," defense lawyer Fred Susaneck said. "Just because a computer runs doesn't mean it does what it's supposed to be doing. Otherwise, we wouldn't be hearing about virus protection and spyware. We just want to know what's going on in there."
    Sounds a lot like one of the electronic voting machine arguments. More:
    After being inundated with motions to get the information, a panel of four county judges -- Paul D'Amico, Mark Eissey, Paul Moyle and Joseph Marx -- held a joint hearing on Feb. 10.

    Assistant State Attorney Elizabeth Parker, deputy chief of county court, stipulated at the hearing that the ruling would extend to all drunken driving defendants, regardless of whether they were included in the motions. The Palm Beach County judges' unanimous decision should be seen as a statewide victory, she said.

    Parker said Intoxilyzer test results are "accurate and reliable" and that the machine's manufacturer, CMI, does not provide anyone the source code information because it's a trade secret. The code isn't necessary to know whether a machine is working properly, according to Parker.

    In Palm Beach County, more than 3,000 people are charged with DUI each year, with about half agreeing to take a breath test, said Ted Booras, chief of county court. The judges' ruling means those 1,500 cases will not be jeopardized, he said. Parker said the prosecution already provides defense attorneys all maintenance records for the machines as well as videotapes of the breath tests being administered.

    Posted by Marcia Oddi on Thursday, March 02, 2006
    Posted to General Law Related

    Courts - Judges in Texas and California in news

    Texas. Thanks to How Appealing, here is a story from this morning's Dallas Morning News headlined "Opponent says justice copied books." Some quotes:

    AUSTIN – Texas Supreme Court Justice Don Willett's job application to the state included at least half a dozen examples of writing cribbed – without attribution – from two books by conservative legal stalwarts, the Republican's opponent said Wednesday.

    Justice Willett, appointed by Gov. Rick Perry to a vacant spot on Texas' highest civil court in August, confirmed having used the thoughts of U.S. Supreme Court Justice Antonin Scalia and former U.S. Circuit Judge Robert Bork.

    But Justice Willett said there was nothing sinister in his borrowing the anecdotes, some of which he said "are so commonly repeated as to be part of the conservative lexicon, like the expression, 'legislate from the bench.' "

    "There was no need for attribution," he said. "This wasn't an intensely footnoted law review article, judicial opinion or doctoral dissertation. It was a conversational, earnest discussion of what I believe about the nature of judging and the limited role of the judiciary." * * *

    Some examples:

    • Justice Willett, in his application, repeated nearly word-for-word an anecdote about Justice Oliver Wendell Holmes and Judge Learned Hand from Mr. Bork's 1990 book, The Tempting of America: The Political Seduction of the Law. In his book, Mr. Bork footnoted and attributed that story to two sources, while Justice Willett did not describe any source.

    • In writing about a passage from a legal brief that he said showed over-reliance on legislative history, Justice Willett concluded, "Reality has surpassed parody." In his book, Justice Scalia scorned the same passage, with the opening line, "Reality has overtaken parody."

    • Both Justice Willett and Mr. Bork disparaged less-than-rigorous legal reasoning. Justice Willett called it "free verse as defined by Robert Frost: 'tennis with the net down.' " Mr. Bork referred to "what Robert Frost called free verse, 'tennis with the net down.'"

    California. Meanwhile, here is an article from The Recorder that begins:
    Less than a week after California's Commission on Judicial Performance launched formal proceedings against a Sonoma County judge who allegedly tried to use her position to avoid a DUI arrest, another jurist is facing a similar predicament in Riverside County.

    Judge Bernard Schwartz pleaded no contest to misdemeanor charges of driving with a blood alcohol level of more than twice the legal limit while in Pismo Beach last summer.

    The commission announced Monday that it had begun formal proceedings into allegations that Schwartz repeatedly tried to avoid arrest and receive preferential treatment because he is a judge. * * *

    Proceedings against Schwartz are getting under way just a week after the CJP announced it would be scrutinizing similar charges against Sonoma County Superior Court Judge Elaine Rushing, who tried to use her position and that of her husband, 6th District Court of Appeal Justice Conrad Rushing, to avoid being arrested for drunken driving in June.

    Posted by Marcia Oddi on Thursday, March 02, 2006
    Posted to Courts in general

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

    Last Sunday the Fort Wayne Journal Gazette had a comprehensive story headlined "Proposals advance to widen gun rights: Legislature considering lifetime permits, deadly force." (See the ILB entry here, which includes links to earlier entries.)

    Today the Journal Gazette has this editorial, titled "Guns ad Lawmakers." Re the "lifetime gun permits" proposed in HB 1176 and SB 54, the editorial states:

    Renewing a driver’s license requires a visit to the Bureau of Motor Vehicles every six years, but proposed legislation would spare holders of gun permits the trouble of ever having to renew. House Bill 1176 and Senate Bill 54 both include language to award lifetime gun permits.

    “The Second Amendment gives law-abiding citizens the right to own and possess a gun, and the current process is an undue burden,” said the House sponsor, Troy Woodruff, R-Vincennes. “This way you would get your license once, and as long as you are in good standing, you keep it.”

    Bad idea. Even Allen County Sheriff James Herman, a gun-rights supporter, questions the wisdom of lifetime licenses.

    “But honestly, I think it’s a good idea to do it every four years,” Herman told The Journal Gazette’s Niki Kelly. “It affords us the opportunity to review things every once in a while. I think it is prudent.”

    It is prudent given the limited requirements for obtaining a permit. In Ohio, gun-permit applicants must complete 12 hours of firearms training with a licensed instructor, including at least two hours involving live fire of guns on a range. Indiana has no such requirement. It is foolish for lawmakers to even consider a lifetime permit without first requiring firearms training.

    Re the "no retreat" provisions contained in HB 1028:
    Another bill, HB 1028, is also nearing final approval in the General Assembly. Known as a “Shoot First” law by opponents and a “Stand your ground” law by proponents, it clarifies the use of deadly force against someone breaking into a home or car.

    One noxious provision of the bill was removed by its Senate sponsor. Republican Johnny Nugent of Lawrenceburg stripped language that would have prohibited employers from banning weapons in their parking lots. The National Rifle Association was seeking guns-at-work legislation in all 50 states, but has stumbled in its goal. Florida business owners blocked a similar provision in their state last month.

    The provision could resurface in Indiana, however. The NRA issued an action alert to its Hoosier members asking them to contact their senators and urge them to support the original language. The bill was approved by the Senate by a 44-5 vote Tuesday – without the provision for workplace guns. But it will most likely undergo more changes in negotiations between House and Senate conferees.

    There’s no doubt that guns and the workplace can be a dangerous combination. Business owners who ban weapons from employees’ parked cars recognize the danger. It would be unconscionable for the General Assembly to force employers to allow guns on their property. Nugent was right to strip that language from the bill, and the measure should not be restored.

    The editorial concludes:
    The overwhelming support for the gun bills in each of the chambers suggests they will be approved, and Gov. Mitch Daniels has indicated he will sign them. Hoosiers should wonder why they were such a priority in a busy short session.

    Posted by Marcia Oddi on Thursday, March 02, 2006
    Posted to Indiana Law

    Environment - EPA Proposes Allowing Ethanol Plants to Emit More Pollution

    An AP story today, headlined "EPA Proposes Allowing Ethanol Plants to Emit More Pollution," reports:

    WASHINGTON — In an attempt to increase domestic production of alternative fuel sources, the Bush administration has proposed allowing ethanol plants to send more hazardous air pollutants into the air.

    The Environmental Protection Agency announced Wednesday that it has proposed a rule that would raise the emissions threshold for corn milling plants that produce ethanol fuel, allowing those plants to emit up to 250 tons per year of air pollutants before triggering tougher restrictions on production. Currently, corn milling plants can emit 100 tons of pollutants per year.

    Here is the EPA press release, headlined "EPA Proposes More Consistent Regulation of Ethanol Production Plants." Here is the EPA NSR page, with the proposed rule and fact sheet.

    Posted by Marcia Oddi on Thursday, March 02, 2006
    Posted to Environment

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

    Updating the ILB entry from Feb. 24th, that included this Louisville Courier Journal quote: "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," the LCJ reports today, in a story by Alex Davis:

    A special prosecutor from Vanderburgh County was appointed yesterday to investigate the actions of a former top employee in Clark Superior Court 1.

    The exact nature of the allegations is unclear, but Superior 1 Judge Jerry Jacobi wrote in a letter last week that they involve his former chief of staff, Jerry Lemmons, who resigned last month. * * *

    The special prosecutor is Stan Levco, who said yesterday in an interview from Evansville that he didn't plan to take action on the case until mid-May.

    Jacobi, a former Clark County prosecutor, has been on the bench since 1995. He is up for re-election this year, and faces opposition in the May 2 Democratic primary.

    Levco wouldn't comment on the allegations. He said one possible course of action would be to convene a special grand jury to look into the matter.

    Bruce Hartman, the state examiner of the Indiana State Board of Accounts, said his agency is conducting a special audit of Jacobi's court.

    The results of that audit could lead to additional action before the Indiana Judicial Qualifications Commission, which investigates judicial misconduct. The commission can recommend sanctions ranging from a private reprimand to a judge being removed from office.

    In 1999, Indiana's chief justice signed an order suspending Jacobi for three days without pay for violating judicial canons. The penalty stemmed from a case involving a restraining order that Jacobi issued.

    The newer allegations involving Lemmons will be heard in Clark Circuit Court. Judge Daniel Donahue, who has presided over that court for the last 19 years, said the case was highly unusual but declined to comment further. "I'm troubled by the recent revelations," he said.

    Posted by Marcia Oddi on Thursday, March 02, 2006
    Posted to Indiana Courts

    Ind. Decisions - More on: 7th Circuit denies stay of legislative prayer ruling

    The Fort Wayne Journal Gazette has a comprehensive story this morning, by Niki Kelly, on yesterday's 7th Circuit decision in the legislative prayer case.

    Here is the answer to one question the ILB had. The appeal continues, the only issue decided yesterday was whether Judge Hamilton's ruling would be put on hold while the appeal is pending. The three-judge panel yesterday ruled "no", by a 2-1 vote. But is this the same panel that will decide the appeal itself? The answer:

    Although setting aside Hamilton’s decision was denied, the case continues on. [Ken Falk, who argued the case on behalf of the ACLU of Indiana] said briefs are expected to be filed by May with possible argument in the case in June. He also noted that it may or may not go before the same three-judge panel.
    More from the story:
    INDIANAPOLIS – Republican House Speaker Brian Bosma received what he considered disappointing news Wednesday when a split panel of the U.S. 7th Circuit Court of Appeals refused to temporarily set aside a decision regulating prayer from the House podium.

    “Of course we’re disappointed, … but we aren’t shocked by it,” Bosma said. “I still firmly believe our ultimate relief will be at the United States Supreme Court level.” * * *

    “I’m surprised the court issued such a lengthy decision, but I’m not surprised that (setting aside Hamilton’s decision) was denied,” said Ken Falk, who argued the case on behalf of the ACLU of Indiana. “I’m reluctant to look into it too much. Obviously we are happy the stay has been denied, but … we won’t know what will happen until we get there to argue the case.”

    Bosma and other House and Senate leaders have denounced the ruling and halted the traditional prayer, asking for a stay of the opinion while they appealed further.

    But two U.S. Court of Appeals judges ruled Wednesday that “in assessing the Speaker’s chance of success on the merits of his appeal and in balancing the slight and temporary injury he faces absent (setting aside Hamilton’s decision), we must conclude that the Speaker has not met his burden of establishing that (setting aside Hamilton’s decision) ought to be granted.”
    The decision noted that prayer could have continued under the injunction issued but Bosma chose not to.

    “In reply to the injunction, the Speaker chose to cut off all prayer and, it would appear, has sacrificed the core aspect of the tradition – beginning the session with an invocation for divine guidance – in order to continue a deviation from the House’s articulated desire that the prayer not be identified with any particular denomination.”

    One judge dissented in the case, saying the federal court should give deference to the 188-year history of state legislative prayer while the appeal is pending.

    “That deference cautions that we as federal judges should move prudently in this very sensitive area of constitutional law, which includes being reluctant to interfere with a state’s internal spiritual practices until it is clear that it is necessary,” the dissent said.

    “If for those past 188 years the legislative prayer at issue here has occurred on the wrong side of what is at best a murky constitutional line, then we can at least provide the clarity of our opinion before placing a state legislative body under federal supervision.”

    Falk noted that the “dissent certainly wasn’t saying he thought the Speaker’s legal argument was going to be victorious but that the balance of who is being harmed rested with the Speaker.”

    Here is the Louisville Courier Journal story and the Indianapolis Star story.

    Here is the link to yesterday's ruling in Hinrichs v. Bosma.

    Posted by Marcia Oddi on Thursday, March 02, 2006
    Posted to Ind. (7th Cir.) Decisions

    Wednesday, March 01, 2006

    Ind. Decisions - 7th Circuit denies stay of legislative prayer ruling [Updated]

    Mike Smith of the AP is reporting, via the Fort Wayne Journal Gazette:

    INDIANAPOLIS - A federal appeals court on Wednesday refused to temporarily lift a judge's order banning prayers during Indiana House proceedings from mentioning Jesus Christ or endorsing any particular religion.

    The 7th U.S. Circuit Court of Appeals denied a request by House Speaker Brian Bosma that an injunction against such practices in the chamber be set aside until Bosma's appeal could be further litigated.

    The appeals court said the case involved the internal proceedings of a legislative body and raised important federalism concerns and deserved additional review. [ILB: See Update 3 at the end of this entry]

    But the ruling said Bosma had not met a legal burden to put an order by U.S. District Judge David Hamilton on hold until the appeal could be heard. Bosma has an April 10 deadline to file a full appeals brief.

    Here is the opinion. It is 2-1 for denial, with the majority opinion written by Judge Ripple, with Judge Wood concurring. The Court found (1) "the Speaker is unable to show a substantial likelihood of success on the merits of his standing argument", (2) re the establishment clause:
    In our initial reading of the case law, we find little to encourage the Speaker’s reading of the law. It appears that such an approach would render nugatory critical facts and limitations expressed by the Supreme Court in Marsh, even though the Court
    itself and many other lower federal courts have found those points dispositive. In pointing to congressional practices that have been sustained, but without reference to the prayers’ contents, he asks that we read into those cases issues that simply were not addressed by the courts.

    The Speaker advances several other arguments that require now, and on plenary review, our respectful attention. He suggests that prohibiting clerics from invoking Christ would violate the Free Exercise or Free Speech Clauses of the First Amendment. These issues, while new to this circuit’s jurisprudence, have been addressed by other courts and have been rejected. The same fate has met the argument that deciding which prayers are sectarian is an inappropriate role for judges.

    The majority concludes:
    In assessing the Speaker’s chance of success on the merits of his appeal and in balancing the slight and temporary injury he faces absent a stay, we must conclude that the Speaker has not met his burden of establishing that a stay ought to be granted.
    Judge Kanne's dissent begins at the bottom of page 18:
    Because I believe the Speaker’s likelihood of success on the merits is greater than the majority deems it, and the balancing of the equities favors granting a stay, I respectfully dissent. * * *

    The legal uncertainty caused by the special place legislative prayer holds in our nation’s heritage and our Establishment Clause jurisprudence, the absence of irreparable harm, and the deference due to another sovereign’s internal spiritual practices require that we stay the district court’s injunction at least until we can determine for ourselves whether a constitutional violation has occurred.

    [Update] Another writer today states: "In its opinion, the 7th Circuit ruled the issues were so important in the House prayer case that it wanted to hear oral arguments. Those arguments will likely take place this summer." I am unable to find such a statement in today's opinion denying a motion for stay.

    [Update 2] See Advance Indiana for more on today's ruling.

    [Update 3] I think what the Court said is that instead of dismissing the request for a stay with a brief order, they had elected to write a full opinion. Here, from p. 2 of the opinion:

    For the reasons set forth in this opinion, we deny the stay. Because this matter involves the internal proceedings of a state legislative body and therefore raises important federalism concerns, we have departed from our usual practice of deciding preliminary matters such as this one by a short order and have elected to set forth our views in more plenary fashion. We hope that, by proceeding in this manner, the tentative nature of our analysis at this very early point in the litigation will be plain to all.

    Posted by Marcia Oddi on Wednesday, March 01, 2006
    Posted to Ind. (7th Cir.) Decisions

    Ind. Decisions - Court of Appeals issues one today

    In Joshua Staton v. State of Indiana, a 3-0, 7-page opinion (with concurring opinion beginning on p. 5), Judge Sullivan writes:

    Following a jury trial, Appellant, Joshua Staton, was convicted of Sexual Misconduct with a Minor, a Class C felony. Upon appeal, Staton argues that there was insufficient evidence to prove beyond a reasonable doubt that he was eighteen years of age at the time of the offense. We affirm. * * *

    We need not consider whether the evidence presented was sufficient to establish Staton’s age at the time of the offense because Staton did not follow the proper procedure for preserving the issue of his age for appellate review. In McGowan v. State, 267 Ind. 16, 17-18, 366 N.E.2d 1164, 1165 (1977), our Supreme Court held that an accused is presumed to have attained the age necessary for a conviction of a crime unless the presumption is challenged through a motion to dismiss and supporting memorandum. Where the accused does not raise the issue of his age in a motion to dismiss, the issue is not available upon appeal. [cites omitted] Here, Staton does not claim, and our review of the record does not indicate that Staton filed a motion to dismiss challenging his age. He has therefore waived the issue of his age for appellate review.[3]

    FRIEDLANDER, J., concurs.
    ______________
    [3] In Judge Vaidik’s separate concurrence in result, she sets forth the logical premise, supported by persuasive policy considerations, that if a particular fact is an element of the crime it must be proved beyond a reasonable doubt by the State. Failure by the defendant to raise this issue in a Motion to Dismiss the charge should not relieve the State of this burden.

    Nevertheless, we do not write on a clean slate in this regard. Therefore, unless and until our Supreme Court overrules or modifies its decision in McGowan, supra, we feel constrained to follow its plain holding.
    ______________

    VAIDIK, J., concurs in result with separate opinion.

    I concur with the result reached by the majority, but I respectfully disagree with its determination that “an accused is presumed to have obtained the age necessary for a conviction of a crime unless the presumption is challenged through a motion to dismiss and supporting memorandum.” Although the majority cites this rule as established in McGowan, I believe that more recent decisions by our Supreme Court and sound policy considerations support the position that where the offender’s age is an element of the crime charged, the State bears the burden to establish age beyond a reasonable doubt. * * *

    Nevertheless, I reach the same conclusion as the majority in this case because I find that the State did prove Staton’s age beyond a reasonable doubt. Witness testimony established that at the time of the incident, January 2004, Staton was a freshman living in a dormitory at Manchester College. The fifteen-year-old victim testified that she had known Staton for a number of years, that she “imagined” him to be four years older than she, that it was her “understanding” that he was eighteen in January 2004, and that she thought Staton had graduated from high school in 2003, the year before her older sister. I would find, then, that the State presented sufficient circumstantial evidence to establish that Staton was at least eighteen years of age at the time he committed the charged offense. For this reason, I concur.

    Posted by Marcia Oddi on Wednesday, March 01, 2006
    Posted to Ind. App.Ct. Decisions

    Ind. Decisions - Lilly responds to Star article

    Updating the ILB entry from Sunday, Feb. 26th about the Indianapolis Star two-page story on the federal Judge David Hamilton's decision in Lilly vs. Emisphere Technologies, today the Star publishes the viewpoint of Steven M. Paul, M.D., Executive Vice President, Science and Technology, President of Lilly Research Laboratories. His letter concludes:

    Lilly is, and has been, a partner in literally hundreds of partnerships that produce great satisfaction, trust and value on all sides -- along with great benefits for patients. As a result, Lilly has been recognized in third-party surveys as one of the most highly regarded collaborators in our industry. We also conduct our own regular survey of our partners -- the "Voice of the Alliance" -- and this voice is heard loudly and clearly by decision-makers at the company. It is a vital indicator of our reputation, which we value more highly than any research project or business deal.

    Our track record as a partner is excellent. However, if even one partnership ends in disagreement and reaches a courtroom -- as was the case with Emisphere -- that is one too many. The unfortunate legal dispute with Emisphere is, however, an anomaly for Lilly, and thus it is important to provide this added perspective to a story that paints a picture of Lilly that is simply not an accurate depiction of who we are as a partner and as a company.

    Additionally today, the Star reports here that "Eli Lilly and Co. plans to appeal a federal judge's ruling that the company breached a research contract with a small partner."

    Posted by Marcia Oddi on Wednesday, March 01, 2006
    Posted to Ind Fed D.Ct. Decisions

    Law - More on U.S. Supreme Court arguments on redistricting and tax incentives

    Redistricting. NPR's Nina Totenberg had an excellent overview (about 8 minutes long) this morning of the Texas redistricting case that will be argued today. Audio will be available here at about 10:00 a.m.

    The NY Times editorial today is titled "The Texas Gerrymander." Don't miss it and don't miss this article from the Christian Science Monitor headed "High court's hot potato: redistricting."

    For more, see this ILB entry from Monday, Feb. 27th.

    Tax Incentives. USA Today has a good overview of the Cuno v. DaimlerChrysler Inc. issues, in a story headlined: "High court case hinges on tax breaks as job bait: Cities that want auto plants sacrifice millions to win them." Some quotes from the lengthy report:

    Most states and many local governments have come to rely on property tax breaks to attract businesses and keep existing ones from moving to lower-cost states or out of the country. In 1977, nine states gave tax credits to corporations. By 1998, that number had grown to 36, according to a study by the National Education Association.

    States say they have to offer the breaks or lose businesses to places that do. “You don't really have a whole lot of choice on the issue of incentives, because a state that doesn't use them will get raided,” says Mike Shore, spokesman for the Michigan Economic Development Corp.

    Some research finds little benefit for the communities. Timothy Bartik, senior economist for the W.E. Upjohn Institute for Employment Research, a non-profit, non-partisan group in Kalamazoo, Mich., says statistical analysis shows that the average-size tax incentive tips the scales on where to locate for only one in 10 companies. Bartik says the average incentive runs about $1,000 per job.

    Taxpayers like Cuno say they are paying the price because the dependence on rebates is shifting the tax burden to individuals. Bolstering their argument: Individual income taxes are growing at a faster rate than corporate income taxes. According to the Census Bureau, corporate income taxes collected rose 6.5% from 1994 to 2004, while individual income taxes collected went up 49.7%.

    There's no way to measure how much tax revenue has been given away in the name of business development because no one keeps track. But no one denies that competition among states and from other countries for business has intensified in recent years.

    “It's become more and more like an incentives arms race, where they feel obligated to play this particular game and provide incentives to match what other people are providing,” says Bill Schweke, an analyst with CFED, a non-profit economic development group that encourages government to look for other ways to attract business. There is no evidence tax incentives actually help foster economic growth, he says. “It's kind of a waste of money.”

    But states say if you don't pay, you don't play. That's a lesson Michigan learned the hard way in 1992, when General Motors announced it would close a plant in either Ypsilanti, Mich., or in Arlington, Texas. Michigan resisted the idea of forgiving taxes, while Texas offered GM $30 million in tax abatements. Michigan lost 4,000 jobs. Texas kept a plant that had 3,700 jobs and the prospect of another 1,000. Since then, GM has pared the workforce to 2,900.

    For more, see this ILB entry from Saturday, Feb. 25th.

    Posted by Marcia Oddi on Wednesday, March 01, 2006
    Posted to General Law Related

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

    "Ex-judge hit with pay cut: Bamberger's retirement misses time limit" is the headline today in the Cincinnati Enquirer, following on the ILB post yesterday. Some quotes:

    FRANKFORT - A retired Northern Kentucky judge accused of profiting from a $200 million settlement for fen-phen victims will take a hit in his pocketbook.

    Joseph "Jay" Bamberger's retirement will immediately be reduced by about $3,665 a month - a 39.5 percent reduction.

    Bamberger will continue to receive an estimated $5,613 monthly for his 22 years of public service. For 12 years of his career he served as the only circuit judge for Boone and Gallatin counties - sometimes managing the busiest court docket in the state.

    Bamberger retired as a circuit judge on Jan. 5, 2004. He then took part in a program under which retired judges travel the state for five years to help reduce the number of backlogged cases in exchange for an increase in retirement benefits.

    Chief Justice Joseph Lambert announced Tuesday that Bamberger hadn't met the five-year requirement for increased retirement benefits when he resigned as a traveling judge rather than face removal by the Judicial Conduct Commission.

    On Monday, the commission publicly reprimanded Bamberger for alleged misconduct in the $200 million settlement involving the diet drug.

    The commission said Bamberger approved attorney fees totaling at least $86 million and as much as $104 million in the 2001 settlement while 431 plaintiffs injured by the popular diet-drug combination collected a total of about $74 million.

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

    The retired judge, who lives in Florence, collected about $45,000 until he resigned from the fund's board and returned the money when questions were raised last year. * * *

    Officials with the Boone County Sheriff's Department, Kentucky State Police and U.S. Attorney Office in Lexington said they do not have any criminal investigations into the fund or Bamberger. The FBI would neither confirm nor deny an investigation. * * *

    Richard Beliles, the Kentucky chairman of Common Cause, a political watchdog group, said the charges leveled against Bamberger by the Judicial Conduct Commission demand a criminal investigation. "It threatens the public's confidence in the judiciary and the court system," said Beliles, a lawyer from Louisville. "It makes me personally a little sick in the stomach."

    Posted by Marcia Oddi on Wednesday, March 01, 2006
    Posted to Indiana Courts

    Environment - Stories today on CAFOs, tire fire, gravel pit protest

    CAFOs. The South Bend Tribune has a story today by James Wensits headed "Dairy permits threatened: County Council could enter controversy over farm proposal." Some quotes:

    County Commissioner Steve Ross, D-District 2, said Tuesday he will seek a moratorium on building permits needed to establish a dairy farm for up to 3,500 head of cattle proposed for southern St. Joseph County.

    The comments came after David Schrock, a partner in the proposed Walnut Grove Dairy operation, made what he saw as a courtesy presentation of his plan to St. Joseph County Council members Tuesday.

    Ross, who said he believes the proposal has become a land use issue, announced that he has asked a deputy county attorney to write an ordinance that could be presented to the council, possibly at its April meeting.

    Ross said he is concerned about the location of the proposed farm, a portion of which, Ross said, is located in a flood plain.

    "I'm not building in a flood plain," Schrock told Ross. "Stop saying that."

    The commissioner said one aspect of the ordinance would be to establish a "Farmer's Board," similar to the county drainage board, that could "review projects of this size and make recommendations to we city folks."

    Schrock, who is focusing on the permitting process required by the Indiana Department of Environmental Management, said the council has nothing to say about his proposal.

    "I need nothing from them," he said following the close of the council presentation. * * *

    Schrock and partner Peter van der Vegt hope to build the dairy operation on 103 acres Schrock owns on Riley Road, west of Ironwood Road.

    Unlike traditional farms where dairy cows roam outdoor pastures, cows at the Walnut Grove farm would stay inside a huge, climate-controlled building that Schrock maintains will be a healthier environment.

    Schrock also proposes to grow corn and hay to feed the animals as well as partnering with local farmers to provide feed.

    According to Schrock, everything he has proposed is legal and permission to proceed is up to IDEM, not the county. He came to the council only because he was invited, he said.

    Tire Fire. Seth Slabaugh of the Muncie Star-Press reports today:
    MUNCIE -- The owners of the burned-out CR3 tire recycling business expressed regret, embarrassment, and a desire to clean up the site Tuesday before a judge sentenced them.

    Delaware Circuit Court 3 Judge Robert Barnet Jr. accepted a plea agreement requiring Michael and William Gruppe III to pay $500,000 to clean up their business, which was destroyed by a major waste-tire fire in August 2003.

    The agreement also calls for the Gruppes to pay $100,000 into the state's waste-tire management fund and $10,000 to compensate the Indiana Department of Environmental Management for investigative costs. * * *

    The two brothers pleaded guilty to a class B misdemeanor charge of filing a false annual tire summary with IDEM. On behalf of CR3, William Gruppe also pleaded guilty to a class D felony charge of illegally storing waste tires in 55 semitractor-trailers, each capable of holding up to 1,000 tires.

    In exchange, prosecutors dismissed six class D felony charges, which had accused the Gruppes of creating a fire hazard, open dumping and storing waste tires without a permit.

    Gravel Pit Protest. The Morgan County Reporter-Times had a story yesterday by Aaron Blevins headed "IDEM considers public hearing request: Proposed operation pits residents against mining company." Some quotes:

    Waverly. U.S. Aggregates, Inc. is trying to open a second plant in the area near Ind. 144. The company already mines for minerals at 10351 North Mann Road. The proposed plant would be located at, or near, 7201 East Centenary Road unless the residents have it their way.

    Loretta Robinson lives near the proposed location and has been very adamant about her opposition to being a neighbor to another gravel pit. She said that since she has moved in to the area, six more gravel pits have commenced operations. * * *

    Residents such as her have voiced their opinions to basically every agency that deals with the mineral extraction business. Their concerns range from lowered property values to an increase in mosquitoes.

    The primary concern is dust. Water is used to control such a matter, but residents say the dust is still visible outside the company’s property lines, which violates Indiana code.

    Another big complaint revolves around ugliness. Residents do not want to wake up in the morning, grab a cup coffee, sit down at their dining room table and watch a gravel pit in action. They are also concerned that it might affect the real estate value of their home.

    But Nelson Shaffer, the head of the coal and industrial mineral section of the Indiana Geological Survey, said that those concerns are simply unimportant, citing the area near Indiana Wesleyan University in Marion as proof that reclamation of gravel pits can net positive results.

    “I tell you, some of these probably improve property values,” he said. “It’s a temporary thing really.” He said the biggest problem for neighbors is most likely the trucks.

    However, some area appraisers said that the residents’ concerns may be warranted, but the concerns would be property-specific.

    Aside from the other concerns the residents had, Shaffer said mineral extraction is high-dollar business in Indiana. * * *

    [B]oth entities in this conflict are heavily armed with information and opinions. IDEM has a complicated decision on its hands. The public had until Monday to request a public hearing. IDEM said that many residents have contacted them.

    U.S. Aggregates, Inc. has filed for all the proper permits from IDEM and, most likely, the rest of the governing bodies who issue such permits. The county commissioners amended an ordinance in August that placed restrictions on mining operations in the county.

    Posted by Marcia Oddi on Wednesday, March 01, 2006
    Posted to Environment

    Ind. Law - Telecom and eminent domain bills pass

    Telecom. Yesterday the House concurred in Senate amendments to HB 1279, meaning it is on its way to the Governor. Lesley Stedman Weidenbener writes about it today in the Louisville Courier Journal, as does Deanna Martin in an AP story in the Fort Wayne Journal Gazette. More: Here is an Indianapolis Star story by business writer J.K. Wall.

    For earlier ILB entries, type "telecom" in the search box.

    Eminent domain. The eminent domain bill, HB 1010, passed the Senate yesterday 49-0, and now goes back to the House, where the members may either concur in the Senate amendments (there were a slew of them) or send the bill to conference committee. Niki Kelly reports today in the Fort Wayne Journal Gazette:

    The bill has several major provisions, such as requiring land that is to be condemned and transferred to a private entity to be first proven to be blighted. Some examples of that would be if the land contains a structure that is unfit for habitation, a fire hazard, a public nuisance or has become infested with trash and vermin because of a lack of maintenance.

    The city or town would also have to pay premium prices for the land – 125 percent of fair market value for farmland and 150 percent of fair market value for residential property. Owners also could seek and win significant damages and attorneys’ fees.

    The legislation would prohibit private-to-private eminent domain solely for the purpose of increasing tax base through economic development. One example of this that has been given is building a retail mall. “We emphatically say that the mere fact that you might get more tax revenue by taking land from person ‘a’ and giving it to person ‘b’ is no justification in taking a man’s land,” Bray said.

    There is one exception in the bill for major projects that are at least 10 acres, don’t involve residential housing and in which 90 percent of the needed land has already been acquired. It is believed to be a narrow amendment that would most likely affect brownfield sites and abandoned industrial land.

    Rep. Dave Wolkins, R-Winona Lake – the House author of the bill who has been pushing the issue for several years – said he wants to examine the amendments the Senate added but is “inclined” to accept the changes.

    Posted by Marcia Oddi on Wednesday, March 01, 2006
    Posted to Indiana Law